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

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

MULLINS COAL COMPANY, INCORPORATED OF VIRGINIA,

OLD REPUBLIC INSURANCE COMPANY and

JEWELL RIDGE COAL CORPORATION,

. Petitioners,

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

GLENN CORNETT, LUKE R. RAV. GERALD R. STAPLETON

and WESTMORELAND CoAL COMPANY,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF AMICUS CURIAE

UNITED MINE WORKERS OF AMERICA

IN SUPPORT OF CLAIMANT RESPONDENTS

MICHAEL H. HOLLAND * GRANT CRANDALL

MICHAEL DINNERSTEIN CRANDALL & PYLES

UNITED MINE WORKERS OF AMERICA Suite 414, Medical Arts Bldg.

900 15th Street, N.W. P.O. Box 3465

Washington, D.C. 20005 Charleston, WV 25334

(202) 842-7330

PATRICK NAKAMURA

LAW Orricks oF Stropr & NAKAMURA

2101 City Federal Bidg.

Birmingham, AL 35203

* Counsel of Record

WILSOn - Eves Printing Co.. Inc. - 789-0096 - WasHincron. 0 C 20001

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*

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TABLE OF CONTENTS

TABLE OF AUTHORI TIE —- . ——

STATEMENT OF INE EST

INTRODUCTION AND SUMMARY OF ARGUMENT.

— 2—————

I.

III.

IV.

THE EXPRESS LANGUAGE AND THE

STRUCTURE OF SECTION 727.203 SUP-

PORT THE INTERPRETATION THAT THE

PRESUMPTION IS INVOKED UPON A

SHOWING OF TEN YEARS OF COAL MINE

EMPLOYMENT AND THE PRODUCTION OF

ONE ITEM OF QUALIFYING EVIDENCE...

THE LEGISLATIVE HISTORY OF THE

BLACK LUNG ACT COMPELS THE CON-

CLUSION THAT A CLAIMANT MAY IN-

VOKE THE PRESUMPTION OF SECTION

727.203(a) BY PRODUCING A SINGLE

ITEM OF QUALIFYING EVIDENCE...

THE PETITIONERS ARGUMENT CON-

CERNING CONSISTENCY OF INTERPRE-

TATION AND DEFERENCE IS WITHOUT

—— — — 7"

SECTION 7(c) OF THE APA, BY ITS OWN

TERMS, DOES NOT REQUIRE THAT THE

REGULATION BE READ TO REQUIRE THE

PREPONDERANCE OF THE EVIDENCE

STANDARD IN RELATION TO INTERIM

PRESUMPTION INVOCATION FACTS

a

11

21

TABLE OF AUTHORITIES

Cases: Page

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

(7th Cir. 1986) . 22,23

Ames v. Merrill Lynch, ‘Pleres, ‘Penner 4 Smith,

Inc., 567 F.2d 1174 (2d Cir. 197777 22

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

)_ ___ i ee 23

Carroll v. Califano, 619 F.2d 1157 (6th Cir.

1980) 9

Consolidation Coal Co. v. ~ Sanati, 113 52d 480

I, EEE 25

Dickson v. Califano, 590 F.2d 616 (6th Cir. 1978) 23

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

—K— eee 23

9

22

110 eee

21... —³

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

LIE» WAA 10

Haywood v. Secretary of HHS, 699 F.2d 277 (6th

1. 7 23

In Re: James Sebben, et al. v. William F. Brock,

Ill et al., Nos. 86-1295, 86-1315, slip op. (8th

Cis. Gie6 Hine. GE, SED e =

ITT Corp. v. Local 134, IBEW, 419 US. 428

. ̃ 27, 28. 29

Johnson v. Califano, 585 F.2d 89 (4th Cir. 1978) 9

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

22... ⁵—⁵§éÜꝓ— T 22

Kickapoo Oil Co. v. Murphy Oil Corp., 779 F.2d

MD CQ _e——e————EEEEE 22

Lagamba v. Consolidation Coal Co., 787 F.2d 172

(4th Cir. 1986) 10

Miniard v Califano, 618 F.2d 405 (eth ‘Cir.

ee 23

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

2... Ü—Q——ͤ 23, 24

Statutes:

iii

TABLE OF AUTHORITIES—Continued

Page

Revak v. National Mines Corp., No. 86-3211, Op.

Sur Denial of Panel Rehearing (3rd Cir. March

EEE EE 7. 21

Settlemoir v. Old Ben Coal Co., 9 B.L.R. (MB)

EEE EE ST ß 8

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

lp ESSE SESS AEE a 9

Singleton v. Califano, 591 F.2d 383 (6th Cir.

EEE EE 23

Southard v. Director, OWCP, 732 F.2d 66 (6th

e 8

Steadman v. SEC, 450 U.S. 91 (1981777 2 29

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

ES ...... 25

United States v. One 56-Foot Yacht Named

Tahuna, 702 F.2d 1276 (9th Cir. 1983 11

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

, ]’ ... 2, 17

Ward v. Matthews, 403 F. Supp. 95 (E. D. Tenn.

e 9

Welsh v. Weinberger, 407 F. Supp. 1043 (D. Md.

e ]èéÄ“¼ 9

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

EET 2, 23-30

r . 27

e . 27, 28

r . 29

5 U.S.C. 6 551 (10) (B) ......................................... 28, 29

5 U.S.C. § 556 (d) (S7 (e)) 1 25-30

Black Lung Act, as amended, 30 U.S.C. § 901 et

TE passim

r — Q 26

eee 18

30 U.S.C. § 923 (b) (§ 413 (b)) aE 4,5

30 U.S.C. § 932 (a) (§ 422 (a)) 26

Black Lung Benefits Act of 1969, Pub. L. No. 91

r . 12, 20

iv

TABLE OF AUTHORITIES—Continued

Page

Black Lung Benefits Reform Act of 1977, Pub. L.

1 1 T 18, 19

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

1 ee 13, 14, 16

Controlled Substances Act, 21 U.S.C. § 881 1 11

Federal Coal Mine Health and Safety Act of 1969,

1 —— ̃ͤ—òi!. 1. 12

3 rccccccccecscccnecncestcencsectingnse 12

Longshore Act, as amended, 33 U.S.C. 5 901 et

%% AA AAA AA 26

F . 26

National Labor Relations Act, 29 U.S.C. § 151

r ˙ eee 27

29 U.S.C. 8 158 (b) (4) (D) (§ 8(b) (4) (D)).... 27

29 U.S.C. § 160 (Kk) (§ 10 0h00 27, 28

Tariff Act of 1930, 19 U.S.C. § 161 11

Regulations:

Social Security Administration Regulations

20 C. F. R. § 410, Subpart D (198 1 4

20 C. F. R. § 410.428 (a) (198) 9

20 C. F. R. § 410.430 (1986) 9

20 C. F. R. § 410.490 (1986) 8, 15

20 C. F. R. § 410.490 (b) (198) 21

Department of Labor Regulations

20 C. F. § 727.208 (1906) .................................. passim

20 C. F. R. § 727.203 (a) (1980) passim

20 C. F. R. § 727.203 (a) (1) (1986) —.................. 3, 5, 8

20 C. F. R. § 727.203 (a) (2) (1989) 3

20 C. F. R. § 727.203 (a) (3) (1986) ..................... 3

20 C. F. R. § 727.203 (a) (4) (1980) 3, 22, 25

20 C. F. R. § 727.203 (b) (1986) ee. passim

20 C. F. R. § 727.203 (b) (4) (1986 5, 24

20 C. F. R. § 727. 206 (a) (1986) 4

20 C. F. R. § 727.206 (b) (1) (198) 8

43 Fed. Reg. 36,826 (1978) ......................................... 9, 20

Legislative Materials:

H.R. 9212, 92d Cong., Ist Sess. (1971) 14

H.R. 4544, 95th Cong., Ist Sess. (19777 18

*

TABLE OF AUTHORITIES—Continued

Page

115 Cong. Rec. 27,627 (1969) 12

115 Cong. Rec. 32,015 (196999999 — 12

117 Cong. Rec. 36,497 (19719. 13

117 Cong. Rec. 36,502 (19717—— .. 14

117 Cong. Rec. 36,506 (197177 14

117 Cong. Rec. 40,439 (19717 15

124 Cong. Rec. 2332-3 (1978) 18

H. R. Rep. No. 460, 92nd Cong., Ist Sess. (1971) 13

H. R. Rep. No. 151, 95th Cong., Ist Sess. (1977). 16, 17

S. Rep. No. 743, 92nd Cong., 2d Sess. (1972) 15

Oversight of the Administration of The Black Lung

Program, 1977: Hearings Before the Subcomm.

on Labor of the Senate Comm. on Human Re-

sources, 95th Cong., Ist Sess. (1977) 18

Miscellaneous:

Letter from Department of Labor Solicitor Kil-

berg to HEW General Counsel Rhinelander

(Sept. 13, 1974) reprinted in H.R. Rep. No. 151,

95th Cong., Ist Sess. (1977) 16

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 (19817) 9,19

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 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-327

MULLINS COAL COMPANY, INCORPORATED OF VIRGINIA,

OLD REPUBLIC INSURANCE COMPANY and

JEWELL RIDGE COAL CORPORATION,

+ Petitioners,

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

GLENN CoRNETT, LUKE R. RAY, GERALD R. STAPLETON

and WESTMORELAND COAL COMPANY,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF AMICUS CURIAE

UNITED MINE WORKERS OF AMERICA

IN SUPPORT OF CLAIMANT RESPONDENTS

STATEMENT OF INTEREST

The United Mine Workers of America represents over

200,000 working, retired and laid-off coal miners through-

out the United States and Canada. The UMWA was a

primary force in the adopticn of the Federal Coal Mine

Health and Safety Act, which included the black lung

benefits program at issue in this case. The UMWA is

filing this amicus brief because of the profound effect the

outcome will have on both its own membership and coal

miners in general. The ruling here will directly affect

10,000 black lung claimants and as a practical matter

will determine whether many of them will receive bene-

fits. Very frequently black lung benefits make the differ-

ence between a recipient living at a bare subsistence level

or with some minimal degree of comfort and security.“

INTRODUCTION AND SUMMARY OF ARGUMENT

This case represents the second-major attempt by coal

operators to undermine the clear congressional intent that

black lung benefits be liberally awarded based upon a

readily invocable presumption. The first such challenge

took place in the matter of Usery v. Turner Elkhorn

Mining Co., 428 U.S. 1 (1976). In that case this Court

turned back the operator’s broadside constitutional attack

which argued that the Black Lung Act’s definitions, pre-

sumptions and limitations on rebuttal evidence unconsti-

tutionally impaired their ability to defend against benefit

claims.

Here, coal mine operators seek a restrictive interpre-

tation of 20 C.F.R. § 727.203 and attack the decision of

the Fourth Circuit below. As in Usery, the operators’ ar-

guments should be rejected. As shown below, the express

language and structure of the regulation as well as the

lengthy legislative history surrounding the Black Lung

Act, as amended, compel the conclusion that the interiin

presumption may be invoked upon the showing of ten

years of coal mine employment and the production of a

single item of qualifying evidence. In addition, the Pe-

titioners’ claim that the Secretary’s position is entitled

to deference by this Court is not supported and the Ad-

ministrative Procedure Act does not mandate the inter-

pretation sought by Petitioners.

The total household income from all sources for miner recipi-

ents is only $11,740 and for widow recipients is $8,170. U.S. De-

partment of Labor Employment Standards Administration, A

Sample Survey of All Sources of Both Monetary and Non-Monetary

Income of Black Lung Beneficiaries 17 (1983).

ARGUMENT

I. THE EXPRESS LANGUAGE AND THE STRUC-

TURE OF SECTION 727.203 SUPPORT THE INTER-

PRETATION THAT THE PRESUMPTION IS IN-

VOKED UPON A SHOWING OF TEN YEARS OF

COAL MINE EMPLOYMENT AND THE PRODUC-

TION OF ONE ITEM OF QUALIFYING EVIDENCE

For support of the Fourth Circuit’s interpretation of

the interim presumption, one need go no further than

the language and structure of Section 727.203 itself.

Under subsection (a) of the regulation, a miner must

prove that he has engaged in coal mine employment for

ten years and then may invoke the presumption if he

meets one of four distinct medical requirements. Sub-

paragraphs (1) and (4) of subsection (a), by their own

terms, provide that a single qualifying x-ray or a single

physician’s opinion that a claimant has a disabling pul-

monary impairment will suffice to trigger the presump-

tion. Sub-paragraph (a) (1) refers to “a chest x- ray]!

and (a) (4) refers to the documented opinion of “a phy-

sician exercising reasoned medical judgment” (emphasis

supplied).

Under sub-paragraphs (a (2) and (3), the regulation

uses the term ventilatory studies“ and blood gas stud-

ies” in the plural. However, as Judge Hall pointed out

below, the regulations which define how ventilatory and

blood gas tests are conducted refiect that such tests con-

sist of a set of multiple studies. (Pet. App. 20a-21a).’

In light of these regulations, it is certainly reasonable

to interpret the language of sub-paragraphs (a) (2) and

(3) to require only one qualifying set of ventilatory or

blood gas studies to invoke the presumption.

2The Federal Respondent cites two regulations which use the

word “study” in the singular. Brief of the Federal Respondent,

p. 18, n.16. A close examination of those provisions, however,

reveals that the word “study” in each case is used . connote only

a single component of the set which invokes the pre :umption.

4

Both the Petitioners and the Federal Respondent place

great emphasis on the word “establishes” in subsection

(a) of the regulation. They construe this word to mean

that a claimant must prove each of the medical require-

ments by a preponderance of the evidence. By doing so,

the parties raisconstrue the word “establish.” As Judge

Hall indicated in his opinion,

“*Establish’ as used in Part (a) simply means that

the claimant must prove at least one of the factual

prerequisites to invoke the presumption, i.e. one qual-

ifying x-ray, one set of qualifying ventilatory or

blood gas studies, or the documented opinion of one

—— As used in Part (b), ‘establish’ means

that the employer must prove the facts necessary to

rebut the presume on and ultimately to persuade the

— the claimant is not entitled to ben-

efits.”

(Pet. App. 22a, n. 8)

In other words, a claimant must prove that the item

of medical evidence he submits meets certain require-

ments of reliability and authenticity, see 20 C. F. R.

§ 727.206(a) (incorporating Subpart D of Part 410 of

Title 20), and that such evidence meets the qualifying

standards in subsection (a) of the regulation.“ This is

what subsection (a) requires of the claimant to invoke

the presumption.

The Fourth Circuit’s interpretation is further sup-

ported by the inclusion of the “all relevant evidence”

requirement in only subsection (b) of the regulation.

Congress required in the statute that “in determining

the validity of claims . all relevant evidence shall be

considered ... .” 30 U.S.C. 923 (b). The Secretary

of Labor, mindful of this requirement but also aware

of Congressional intent, specifically placed in the rebuttal

stage the requ:rement that all relevant medical evidence

* As shown elsewhere, respondents frequently attack the relia-

bility and authenticity of medical evidence under the cited regula-

be considered in adjudicating a claim. Had the Secretary

meant to require that all relevant evidence be considered

when invoking the presumption, it would have been sim-

ple and more logical to have placed the “all relevant evi-

dence” language at the beginning of Section 727.203.

This was not done.*

On the other hand, the reading of the regulation ad-

vanced by Petitioners and the Federal Respondent would,

in some cases, make the rebuttal section of the regula-

tion superfluous and run afoul of the congressional direc-

tion that the presumption not be irrebuttable. For ex-

ample, as the Federal Respondent acknowledges, under

(a) (1), if by a preponderance of x-ray, biopsy or au-

topsy evidence, a claimant proves that he suffers from

pneumoconiosis, as a practical matter there is no further

evidence that the coal mine operator could submit on re-

buttal to refute the establishment of the disease pursuant

to (b) (4). Brief of Federal Respondent, pp. 23-24. The

operator would either have th offer the same evidence

he had offered during the iavucation stage (Pet. App.

96a-97a (Opinion, Widener, J.)) or the presumption

* Petitioners argue that the “where relevant“ language of Section

413(b), 30 U.S.C. §923(b), requires the trier of fact to weigh

all evidence at the invocation stage of the presumption. ( Petitioners’

Brief, p. 24). Section 413(b) reads in relevant part, “in deter-

mining the validity of claims under this part, all relevant evidence

shall be considered, including, where relevant, medical tests such

as blood gas studies (emphasis supplied). Petitioners argue

that since a respondent’s contrary evidence would be “relevant” at

the invocation stage, Section 413(b) mandates its introduction at

that time. In other words, Petitioners would define “where rele-

vant” as pointing to a specific chronological point in the evidentiary

process.

This argument is specious and misreads Section 413(b). The

section lists ten categories of evidence which may be used to sup-

port a claim. Without the “where relevant” language, this section

would require the trier of fact to consider evidence in all ten cate-

gories befoie he could determine the validity of e claim. The

“where relevant” qualifier means that the trier of fact need only

consider the evidence in those categories introduced by the parties

in a particular case.

— 6 —

that the claimant has pneumoconiosis must be treated as

irrebuttable (Pet. App. 2la (Opinion, Hall, J.)). This

clearly conflicts with the congressional and agency intent.

Petitioners attempt to circumvent the plain meaning

of Section 727.203(a) by repeatedly, and incorrectly, ar-

guing that the Fourth Cireuit’s interpretation would ef-

fectively deprive the coal mine operator of the oppor-

tunity to prevent invocation of the interim presumption.

Petitioners rashly assert:

“The court below held that any single piece of evi-

dence, regardless of reliability or weight, is sufficient

to invoke the presumption. The defendant, in turn,

has no right to question or challenge claimant’s in-

voding evidence.”

Petitioners’ Brief, p. 6.°

Likewise, the Amicus National Coal Association claims

that the Fourth Circuit view of the interim presumption

would permit eligibility for benefits “as a matter of law

by presumption of any supporting evidence whether or

not such evidence is credible or reliable, or the fact to be

found on the basis of it is supported by a preponderance

5 Likewise, Petitioners assert that the Fourth Circuit's single

evidence invocation “gives possibly false evidence absolute judicial

protection,” Ibid. at 28, and claims that the Fourth Circuit holding

“largely ousts judicial review of invocation fact-finding.” Id. at 42

(fn. 55). These assertions continue a pattern beginning in the

Petition for Writ of Certiorari where the Questions Presented

section includes a statement that the Fourth Circuit permitted

invocation “as a matter of law by presentation of any supporting

evidence whether or not such evidence is credible or reliable. . .”

Petition for Cert. at (i), and claims that, The Fourth Circuit's

unique holding has, in effect, made the invocation of this presump-

tion an ez parte phase of the proceeding.” Id. t 10. The Peti-

tioners further claim that the Fourth Circuit's interpretations

preclude the “effective right of cross-examination in the invoca-

tion phase” and “created a phenomenon which, petitioners believe,

is unknown in federal civil litigation in the United States—an

offer of proof of material fact which cannot be refuted, must be

accepted by the trier of fact and is not, in effect, subject to appel-

late review.” Id. at 14.

7

of the relevant evidence.” Brief of Amicus National Coal

Association, p. 4.“

These bold assertions by Petitioners and the National

Coal Association are patently false.’ An operator or other

When confronted by the almost identical claims in the petitions

for rehearing in Revak v. National Mines Corp., discussed infra,

the Third Circuit replied that it was “unpersuaded by the predic-

tions in terrorem about the impact of our decision. Under our

holding, and under the plain language of the regulation, the weigh-

ing of evidence that does not occur before invoking the presumption

simply occurs at the rebuttal stage. All relevant evidence must be

considered at that point, and the mine operators may rebut on the

basis of all the grounds provided by § 727.203(b).” Op. Sur Denial

of Panel Rehearing at 3 (March 6, 1987).

In contrast to the Petitioners’ assertions, the Director asserts

that the invocation question is of relatively little practical signifi-

cance. (Brief of Federal Respondent, pp. 16-17). This assertion

is in one sense correct but in a more fundamental sense misses

the point.

It .s true that in a well litigated federal black lung case, because

all ~vidence must be considered at the rebuttal stage, the question

o «ether the claimant is totally disabled as a result of a respira-

tory impairment arising from coal mine employment will very often

be determined in the exactly identical way whether the presumption

is invoked by a preponderance of the evidence or by a single item

of evidence within a given category. At the same time, this will

often not be true. As the Director indicates, approximately 10,000

pending claims will be affected by this decision. Brief of Federal

Respondent, p. 3. Very often, at some point during the many years

of administrative and appellate litigation of a black lung claim, the

claimant becomes unable to undertake additional testing. Many

elderly coal miners suffer strokes, heart attacks and other disabling

conditions which make further testing impossible. More tragically,

many miners die. This frequently means that items of evidence

within a given category may no longer be developed and only a single

or small number of items of evidence exist. The question of the

method of invocation then often becomes ultimately determinative.

As discussed elsewhere in this Brief, Congress looked long and

hard at this problem and determined that the risk of such incom-

plete medical knowledge in a given claim, whether because of the

unavailability of the claimant or the lack of reliable medical tech-

niques, should be borne, not by the claimant, but by the party

attempting to prevent eligibility. This decision was consciously and

ways: (a) questioning years

(b) contesting the authenticity of the medical evidence

proffered; (c) disputing the qualifications of the medical

source of a given piece of evidence; and (d) establish-

ing that the quality and reliability standards required

by the regulations have not been met.

Since Congress found during the extensive hearings

undertaken in 1972 and 1977 that exposure to coal dust

for more than ten years was likely to lead to pneumo-

coniosis, the regulation’s initial requirement is proof of

more than ten years of eligible work. The operator may

challenge the claimant’s assertion of work years. A

plethora of cases exists at the administrative and court

level in which this issue was litigated in substantial de-

tail. See, e.g., Southard v. Director, OWCP, 732 F.2d

66 (6th Cir. 1984), and cases cited therein; Settlemoir

v. Old Ben Coal Co., 9 B.L.R. (MB) 1-109 (1982). Like-

wise, the party opposing invocation may question the

authenticity of any particular document.

The qualifications of the source of an item of evidence

may be, and often are, questioned. The regulations spe-

cifically require that interpretation of x-rays for cer-

tain purposes be credited if taken by Board-certified or

Board-eligible radiologists. 20 C.F.R. § 727.206(b) (1).

explicitly made by Congress. Thus, the Federal Respondent's Brief

misses the point in that the question of who has the burden of

proof is sometimes dispositive where there is limited knowledge

due to the availability of the claimant, medical facilities or medical

techniques. Finally, the fact that a decision favorable to claimants

would compel reconsideration of a large number of denied claims

should not dissuade this Court from so ruling. See In Re: James

Sebben, et al. v. William F. Brock, III et al., Nos. 86-1295, 86-1315,

slip op. (8th Cir. filed Mar. 25, 1987) (certifying as a class certain

claimants denied the benefit of 727.203(a)(1) and not afforded

the opportunity to submit a claim under 410.490).

§ 410.428(a). Ventilatory studies must contain certain

specific data including the forced expiration volume in

one second (FEV,) and the maximum voluntary ventila-

tion (MVV), which must be expressed in liters or liters/

well as other specific requirements. 20 C.F.R. § 410.430.

These quality standards were carefully selected by the

Secretary (see, e.g., 43 Fed.Reg. at 36,826) and provide

:

8 8.

8

1

:

F

*

E

3

presumption,” citing Carroll v. Califano, 619 F.2d 1157 (6th

Cir. 1980); Sharpless v. Califano, 585 F.2d 664 (4th Cir. 1978);

Johnson v. Califano, 585 F.2d 89 (4th Cir. 1978); Welsh v. Wein-

berger, 407 F.Supp. 1043 (D. Md. 1975); Ward v. Matthews, 403

F Supp. 95 (E. D. Tenn. 1975) ; Harness v. Weinberger, 401 F Supp.

9 (E.D. Tenn. 1975). Solomons, “A Critical Analysis of the Legis-

lative History Surrounding the Black Lung Interim Presumption

and a Survey of Its Unresolved Issues,” 88 W.Va. L. Rev. 869, 903-

904 (1981). See also Federal Respondent's Brief, p. 8, n.7.

10

“This interpretation is particularly acceptable to me

in light of the fact that an X-ray or blood gas or

ventilatory tests must meet precise standards pre-

scribed by the regulations to qualify to invoke the

presumption.” [citation to regulations omitted]

(Pet. App. 94a-95a)

Finally, it is worthy of remembrance at this point that

the Fourth Circuit also found that all relevant evidence

must be considered at the rebuttal stage. 20 C. F. R.

§ 727.203(b). The consequences for this case are clear:

as indicated by the Federal Respondent, “the basic fact

thus ‘established’ at the invocation stage remains fully

open for relitigation on rebuttal, with the burden of per-

suasion having shifted to the operator or Director.”

Brief of Federal Respondent, p. 15. Consequently, if a

coal operator has evidence which in its view overcomes

the claimant’s invoking evidence, the operator has ample

opportunity to present it at the rebuttal stage of the

case. Such would be the result in the two cases cited by

Petitioners in their Brief: Haynes v. Jewell Ridge Coal

Corp., 790 F.2d 1113 (4th Cir. 1986), and Lagamba v.

Consolidation Coal Co., 787 F.2d 172 (4th Cir. 1986)

cited in Petitioner’s Brief, pp. 28, 29. In each of these

cases the coal operator apparently had substantial evi-

dence which, when offered, would preponderate and rebut

the presumption. If anything, these cases prove rather

than disprove the proposition that the rights of the op-

erator are fully protected by the opportunity to present

all evidence in rebuttal, and that if that opportunity is

grasped, no unjust results will obtain.

Thus, the shrill ery of the operators that they are

faced with the invocation of the presumption based upon

a single piece of evidence which they cannot challenge

with regard to reliability is baldly fallacious. The plain

fact is that operators may and frequently do challenge

the accuracy and reliability of such evidence at the invo-

cation stage and offer all of their evidence in rebuttal.

Their claims to the contrary tend to reveal their actual

11

purpose of these arguments to undo the burden con-

sciously placed upon them due to imperfect knowledge as

explicitly established by Congress in 1977.°

Il. THE LEGISLATIVE HISTORY OF THE BLACK

LUNG ACT COMPELS THE CONCLUSION THAT A

CLAIMANT MAY INVOKE THE PRESUMPTION

OF SECTION 727.203(a) BY PRODUCING A SINGLE

ITEM OF QUALIFYING EVIDENCE

Although the express language and structure of Sec-

tion 727.203 provide an ample basis for the Fourth Cir-

cuit’s decision, a review of the legislative history sur-

rounding the Black Lung Act, as amended, compels the

same result. Although the issue directly involved here

relates to an agency regulation, a review of the legisla-

tive history is singularly appropriate here for two rea-

sons. First, as Judge Sprouse explained below:

„. . the circumstances surrounding the drafting

and promulgation of the interim presumption regu-

lation represent an unusual turn in administrative

law. Contrary to the usual interpretative posture,

agency intent heie can be inferred directly from con-

gressional action because congressional staff worked

directly with the Labor Department to tailor the final

version of the interim presumption.”

(Pet. App. 61a) Secondly, from passage of the Act in

1969 to promulgation of the interim presumption regula-

tion in 1978, Congress was uniquely concerned with the

procedural and evidentiary obstacles which it viewed as

impeding its efforts to provide benefits to deserving coal

miners. Most of the legislative history reflects the con-

gressional effort to eliminate those obstacles.

The kind of burden shifting found in § 727.203(a) is not unique

in federal law. For example, in a more extreme case, under 21

U.S.C. § 881 (which incorporates the customs statute, 19 U.S.C.

§ 1615) the government need only show that there is probable cause

that property it wishes to seize was used in connection with crimi-

nal activity. Once probable cause is shown, the burden shifts to the

party claiming the property to establish his claim to the property

by a preponderance of the evidence. See, United States v. One 56-

Foot Yacht Named Tahuna, 702 F.2d 1276 (9th Cir. 1983).

12

The Black Lung Act was an amendment adopted as

part of the Federal Coal Mine Health and Safety Act of

1969. The FCMHSA was a sweeping congressional effort

providing safety and health standards in an attempt to

arrest the inordinate toll in deaths, sickness and injury

in the coal mining industry. One particular health haz-

ard addressed by the Act was the high level of coal dust

affecting the respiratory systems of coal miners.“

From the moment the Black Lung Amendment was

first introduced, Congress acknowledged that it was deal-

ing with a very unique occupational disease and social

problem. During the debates Senator Javits stated:

“This [Black Lung Amendment] is an unusual and

dramatic proposal—but it is directed at an unusual

and dramatic problem—our sublime insensitivity to

what is probably the worst occupational disease in

the country—black lung.”

115 Cong. Rec. 27,627 (1969).

Similarly, in the House, Congressman Perkins arguea

that Congress should single out black lung for special

federal treatment:

40

. we should not lose sight of the fact that we

are dealing with a special compensation statute

solely because this occupation is so hazardous. There

are 10 times more fatal accidents in this industry

than in all other industries. We have a disease here

that may have been contracted 10 or 20 years ago,

but the individual will never be compensated for it

because the States will never enact retroactive laws

to provide compensation for it. It is because of the

insidious nature of this disease, pneumoconiosis, that

we are enacting this special provision.”

115 Cong. Rec. 32,015 (1969).

After enactment of the black lung program, however,

Congress found that its original intent was being

1” See Section 202 of the Act, as amended, 30 U.S.C. § 842, which

provides certain standards for the maximum allowable amount of

coal dust in the coal mine air.

13

thwarted. During the first two years of the program,

few black lung claims were approved and members of

both Houses proposed amendments to the original Act

to speed up processing and increase the percentage of

claim approvals.

The difficulties which deserving claimants experienced

at the hands of the Social Security Administration

brought these problems squarely before Congress during

the debate leading up to the 1972 Amendments. The leg-

islative history surrounding those Amendments is replete

with testimony and discussion that the existing medical

techniques and facilities to test for black lung were in-

adequate to reliably deny claims. During the House floor

debate on the 1972 Amendments, Congressman Bevill

noted :

“The assessment of damage to health is, under many

circumstances, an imperfect art... We have to

keep in mind that there was a time when physicians

could not even agree on a definition for black lung

disease.”

117 Cong. Rec. 36,497 (1971). Congressman Reid stated:

“Testimony indicates that only 28 percent of the

black-lung applications have been approved in Ken-

tucky, 44 percent in West Virginia and 69 percent

in Pennsylvania. Just because Pennsylvania has had

an effective state black-lung compensation law, and

better medical facilities for examinations, the ap-

proval rate for applications under Federal law has

been higher. In my view, it is unfair to penalize a

coal miner or his widow in Kentucky or West Vir-

ginia just because the medical facilities or records

are unavailable.”

H. R. Rep. No. 460, 92d Cong., Ist Sess., at 33 (1971)

(Separate Views of Congressman Reid).

The use of negative x-ray readings by SSA to deny

claims came under particularly sharp attack by Con-

gress."' In criticizing the use of the x-rays and the sim-

11 The use of x-rays was most prevalent because of the lack of

facilities to administer more specialized pulmonary function and

14

ple breathing test, Congressman Hechler told the full

House that: 1

“On September 12, 1971, a statement by 12 doctors

assembled in Beckley, WVa., indicated that the So-

cial Security Administration’s use of a single chest

X-ray and simple breathing test was ‘unduly and un-

necessarily restrictive.’ Dr. John Rankin, chairman

of the department of preventative medicine at the

University of Wisconsin and a specialist in lung dis-

ease said the simple breathing test employed by the

Social Security Administration often fails to measure

black lung disability. The New York Academy of

Sciences sponsored an international conference on

coal workers’ pneumoconiosis on September 13 through

17, and lung specialists from all over the world pre-

sented their analyses of how to test and measure

pneumoconiosis. These papers conclusively demon-

strate that you cannot rely on a simple X-ray to de-

termine either the presence of pneumoconiosis, or the

extent of disability resulting from it.”

117 Cong. Rec. 36,506 (1971).

In light of these problems, the 1972 Amendments lib-

eralized eligibility criteria, extended coverage and spe-

cifically prohibited the denial of a claim based solely

upon a negative x-ray. In addition, both Houses of Con-

gress in the debates and reports leading up to the 1972

Amendments, admonished the Social Security Admin-

istration to adopt new procedures to alleviate the back-

log of claims in light of the documented lack of medical

facilities and techniques. During the House floor debate

on H.R. 9212, Congressman Helstoski stated:

“. . . the Social Security Administration must recog-

nize the human problems involved here and compas-

blood gas tests. In fact, during the House floor debate on H.R.

9212, Congressman Reid noted that the blood gas testing was only

then being pioneered and indicated that the Social Security Admin-

istration objected to the blood gas tests because they were thought

to be too complicated and required too much medical expertise to

be widely used. 117 Cong. Rec. 36,502 (1971).

15

sionately assist miners and their families in trying to

prove their eligibility for black lung benefits.

After decades of neglect by coal mine operators, com-

pany doctors, and lax State officials, it is no surprise

to find that miners in States such as Kentucky and

West Virginia have difficulty in proving their eligi-

bility for the benefits program. Testing facilities

usually did not exist and medical records have been

scanty or misleading. The Social Security Admin-

istration must, therefore, bend over backwards and

give the benefit of the doubt to the miner or his

survivors.”

117 Cong. Rec. 40,439 (1971).

Similar, but more specific, commands came from the

Senate side of the aisle:

“ . „ the backlog of claims which have been filed

cannot await the establishment of new facilities or

the development of new medica] procedures. They

must be handled under present circumstances in the

light of limited medical resources and techniques.

Accordingly, the [Senate] Committee expects the

Secretary [of HEWI to adopt such interim eviden-

tiary rules and disability evaluation criteria as will

permit prompt and vigorous processing of the large

backlog of claims consistent with the language and

intent of these amendments. Such interim rules and

criteria shall give full consideration to the combined

employment handicap of disease and age and provide

for the adjudication of claims on the basis of medical

evidence other than breathing tests when it is not

feasible or practicable to provide physical perform-

ance tests of the type described [in the HEW annual

report ].“

S. Rep. No. 743, 92d Cong., 2d Sess., at 18 (1972).

In response to these directions, the Social Security Ad-

ministration promulgated the predecessor to the interim

regulation at issue here. 20 C.F.R. § 410.490. As admin-

16

istered by SSA," the interim presumption had its desired

effect and the approval rate of claims filed with the SSA

increased significantly. However, the SSA interim pre-

sumption did not apply to claims filed after June 30,

1973, which were to be administered by the Department

of Labor under Part C of the Act.

Criticism directed at the Department of Labor con-

tinued to focus on the lack of medical techniques and fa-

cilities, and the unreliability of using non-qualifying evi-

dence to deny claims. In September of 1974, the Solicitor

of Labor wrote to the General Counsel of HEW and

urged that the Social Security Administration authorize

the application of the interim presumption to claims

handled by the Department of Labor. In that letter the

Solicitor raised the same concerns that had been raised

by Congress:

“It must also be noted that those few claimants...

who are willing to engage in the further pursuit of

proof of entitlement must subject themselves to a

battery of expensive, time consuming and often un-

pleasant medical procedures. Frequently, there are no

facilities available to conduct these tests near the

claimant’s residence. The 1972 Amendments were

enacted largely to ease the difficult evidentiary bur-

den facing all black lung claimants. Social Security

has negated this intent insofar as transitional and

Part C claimants are concerned by promulgating

variant standards of eligibility which will certainly

result in the denial of benefits to an unknown num-

ber of worthy claimants who, within the intent of

the 1972 amendments, should be found eligible.”

Letter from Department of Labor Solicitor Kilberg to

HEW General Counsel Rhinelander (Sept. 13, 1974) re-

printed in H.R. Rep. No. 151, 95th Cong., Ist Sess., at

17 (1977).

' As discussed infra, SSA was later criticized by some who felt

that SSA was treating the interim presumption as essentially

irrebuttable and awarding benefits based upon a single item of

qualifying evidence without rebuttal inquiry.

17 *

While the debate in Congress continued, this Court

sustained, inter alia, against constitutional attack, the

statutory presumptions in the Black Ing Act and the

prohibition against using a chest x-ray to defeat a claim

for benefits. Usery v. Turner Elkhorn Mining Co., 428

U.S. 1 (1976). In rendering its decision, this Court rec-

ognized the validity of Congress’ informed decision to

shift the evidentiary burdens and to resolve doubts in

favor of the disabled miner because of the unreliability

of medical evidence. This Court noted that the reliability

of negative x-ray evidence was “debated forcefully on

boii: sides before the Congress” and that the Court would

not engage in a judicial reconsideration of the conclu-

sions of Congress on the issue. Ibid. at 33.

The legitimacy of Black Lung presumptions having

been upheld by this Court, members of Congress con-

tinued to seek similar ways to ease the evidentiary bur-

den of claimants. A proposal was offered which would

have instructed the Secretary of Labor to apply stand-

ards “no more restrictive than” those contained in the

SSA interim presumption to all claims handled by the

Department of Labor. By the time this proposal was

considered by the 95th Congress in 1977, however, the

use of the SSA interim presumption was itself being

hotly debated. Those advocating the expanded use of the

presumption argued that the “new facilities” and “new

medical procedures” referenced specifically in the 1972

Senate direction to SSA had not yet become a reality and

therefore the unreliability of current medical testing ne-

cessitated the use of the interim presumption. See H.R.

Rep. No. 151, 95th Cong., Ist Sess., at 15 (1977).

Others, however, harshly criticized the SSA presump-

tion and argued against its expanded use. Dr. Herbert

Blumenfeld, for example, who was working at SSA at

the time he appeared before the Senate Subcommittee on

Labor and Public Welfare testified that the only “prac-

ticable way” SSA could respond to the 1972 Senate’s ad-

monition was to establish criteria which permitted an

award if some level of disease is detected whether or not

any impairment was present. Oversight of the Admin-

istration of the Black Lung Program, 1977: Hearings

Before the Subcomm. on Labor of the Senate Comm. on

Human Resources, 95th Cong., Ist Sess., 194 (1977).

use of the presumption by DOL would only be for an i

terim period until, as the Senate had authorized. the Sec.

retary had promulgated new permanent Part C medical

eligibility regulations. See 30 U.S.C. § 902(f) (2).

19

Pursuant to the 1977 Amendments, the Department of

Labor then drafted new interim regulations. Prior to

publication, congressional staff worked directly with the

Labor Department to draft the final version:

“The final draft of the Labor] Department’s new

.

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the inquiry in this case, the congressional staff struck a

provision similar to the construction of the interim pre-

sumption the Petitioners and Director argue for here:

“Another provision would have required the adjudica-

tor to weigh all the medical test evidence to deter-

mine whether the t of this evidence established

total disability. This too was stricken by congres-

sional command.”

Id. at p. 897 n. 138.

That the Secretary ultimately agreed to a regulation

which would allow invocation of the presumption on the

basis of a single item of qualifying nedical evidence is

reflected in the comments of the Secretary which accom-

panied the final promulgation of the interim presumption:

Notice of Final Rule Making Under The Black Lung

Benefits Reform Act of 1977, 43 Fed. Reg., 36,826 (1978).

As Judge Widener of the Fourth Circuit stated below,

these comments expressly reveal that the Secretary’s in-

tention was to allow invocation merely upon the produc-

tion by the claimant of single item of qualifying evi-

dence. (Pet. App. 94a). “

The conclusion that can be reached from all of the

foregoing is that Congress meant for the invocation of

the presumption to be liberal in order to facilitate the

ability of coal miners to prove their claims. From the

passage of the Black Lung Act in 1969 through the pro-

mulgation of the regulation in 1978, Congress continued

to hear evidence that imprecise medical tests were an

unreliable basis for denying claims. In 1972, Congress

admonished the Social Security Administration to liberal-

ize its criteria and promulgate an interim presumption to

facilitate the processing of claims and significantly in-

crease the percentage of black lung awards.

With respect to Department of Labor claims, Congress

continued to debate the ability of the medical community

The Petitioners in their Brief argue that this Comment only

posits an example of the Department's intention that all relevant

rebuttal evidence be considered. B. „tf Petitioners, p. 30, n.45.

This interpretation ignores the plain meaning and consequence of

the second sentence of the Comment. The basic point is that a

single item of evidence offered by the coal operator or Director is

not considered until the rebuttal stage of the proceeding. The

Comment does not contemplate any distinction between a single

item of “like kind evidence” or a single item of “other relevant”

evidence.

21

to reliably detect the presence or absence of black lung

in a coal miner’s lungs. By 1977 there was considerable

controversy over use of the interim presumption in Depart-

ment of Labor claims. The House mandated usage; the

Senate did not. After much heated debate, the conferees

reached a compromise allowing the use of the presumption

for a specific period until the Secretary of Labor could

promulgate permanent medical criteria. Thereafter, the

Secretary worked closely with congressional staff in draft-

ing the interim presumption at issue here so that agency

intent can be inferred from congressional] intent. Finally,

the comments accompanying the regulation clearly indi-

cate that the Secretary intended invocation upon the pro-

duction of a single item of qualifying evidence.

III. THE PETITIONERS’ ARGUMENT CONCERNING

CONSISTENCY OF INTERPRETATION AND DE-

FERENCE IS WITHOUT MERIT

Turning next to the argument concerning interpreta-

tion of the regulation over time, Petitioners argue that

weighing relevant evidence prior to invocation is “the con-

sistent and unwavering fifteen-year construction of the

invocation provisions of the interim presumptioa by mul-

tiple Secretaries of HHS and Labor... .” Petitioners’

Brief, p. 33."

It must be emphasized that the Petitioners’ treatment

of this subject does not rely upon a formal statement of

agency policy to support this proposition. Rather, it

The Director less strongly asserts simply that “it has long been

clear that all like-kind evidence is weighed in determining invoca-

tion of the presumption available to Part B claimants under 20

C.F.R. 410.490(b).” Federal Respondent's Brief, p. 31.

‘In its denial of petition for rehearing in Revak v. National

Mines Corp., discussed infra, the Third Circuit observed that “it is

not a simple matter for us to derive the Director’s position from

judicial or agency decisions, and the briefs in the cases relied on by

the parties to show the Director's ‘consistent position’ are not

readily accessible to us.” Op. Sur Denial of Panel Rehearing at 3

(March 6, 1987).

also observed that, the Fourth Circuit’s holding that a

Ibid." Cf. Kuehner v. Ziegler Coal Co., 788 F.2d 439

(7th Cir. 1986).

While mixed, the earlier Sixth Circuit precedent does

not support the claim that there has been a consistent

fifteen-year interpretation of the interim presumption.

Hatfield v. Secretary of HHS, 743 F.2d, 1150, 1155 (6th

Cir. 1984) (single positive x-ray triggers presumption) ;

—

Haywood v. Secretary of HHS, 699 F.2d 277, 283-285

(6th Cir. 1983) (same); Miniard v. Califano, 618 F.2d

405 (6th Cir. 1980) (same); Dickson v. Califano, 590

F.2d 616, 622-23 (6th Cir. 1978) (same) ; see also Single-

ton v. Califano, 591 F.2d 383 (6th Cir. 1979) (other

medical evidence). Recently, with no discussion of the

legislative history, the structure of the regulation, or the

APA, a panel in the Sixth Circuit simply asserted that

since earlier cases permitted weighing of evidence, the

Sixth Cireuit had not the Fourth Circuit’s view

below. Back v. Director, OWCP, 796 F.2d 169 (6th Cir.

1986) ; see also Engle v. Director, OWCP, 792 F.2d 63

(6th Cir. 1986). This very brief panel decision contained

no analysis of any of the major issues discussed by the

Fourth Circuit in the instant matter below nor did it

contain a detailed review of its own Circuit's earlier

cases, many of which were not consistent with the panel's

view.

A far more thorough and complete analysis of the un-

the Third Circuit in Revak v. National Mines Corp., 808

F.2d 996 ard Cir. 1986). In that case a miner with

reasoning for its] position.” /bid. at 1

24

In reaching its decision, the Third Circuit undertook a

Id. at 1000. After an analysis of the structure of the

regulation, it gave a persuasive example of the erroneous

result which a balancing test would necessitate:

“One explicit ground for rebuttal, § 203(b) (4), is

that all the relevant evidence demonstrates that the

miner does not have pneumoconiosis. {footnote omit-

ted}. Such a provision would be superfluous if the

deprive the interim presumption of any presumptive

effect.” (footnote omitted) (emphasis supplied)

Id. at 1001.

The Revak Court went on to analyze the

histery and found that it supported its view of single

evidence invocation. It noted that a study cited by Con-

gressman Pau! Simon found that autopsies of 400 coal

miners with more than twenty years of coal mine ex-

perience indicated that 90-95% of them suffered from

pneumoconiosis, Id. at 1002. The Court noted that such

evidence provided an empirical basis upon which the sin-

gle positive test method of invocation would rest,

shifting some of the risk of faulty test results on

employer.” Id. at 1002. Likewise, it found that defer-

ence to alleged agency interpretation was inappropriate.

Id. at 1002-1004.

Finally, lack of consistency of interpretation is ius

trated even within the Fourth Circuit prier to the in-

1

stant case in the matter of Consolidation Coal Co. v.

Sanati, 713 F.2d 480 (4th Cir. 1983). That case in-

volved the question of the proper method of invoking sub-

paragraph (a) (4) of the 727.203 interim presumption:

“The ALJ, however, invoked the presumption solely

on the basis of one physician’s opinion, reasoning

that the documented and reasoned opinion of one

physician alone requires the invocation of the pre-

sumption under (a) (4) regardless of the existence of,

and without , other contrary evidence. The

Benefits Review affirmed the ALJ’s determina-

tion [citing Stiner v. Bethlehem Mines Corp., 3

B.L.R. (MB) 1-487 (1981) ].”

Ibid. at 481. Without discussing the structure of the

the burden of proving by preponderance of the evidence

all the facts necessary to establish the presumption.” /d.

at 482. This ruling was, of course, explicitly overruled

by the Fourth Circuit in the case now before this

Cou

CTION

7(c) OF THE APA, BY ITS OWN TERMS,

DOES NOT REQUIRE THAT THE REGULATION

BE READ TO REQUIRE THE PREPONDERANCE

OF THE EVIDENCE STANDARD IN RELATION

As a fallback position, Petitioners advance the argu-

ment that Section 7(c) of the Administrative Procedure

Act, 5 U.S.C. § 556(d), requires that a preponderance of

the evidence standard be read into subsection (a) of 20

C.F.R. § 727.203. The Petitioners assert that reserving

consideration of a coal operator’s contrary evidence to

subsection (b), the rebuttal phase, violates the policies

It is instructive to note that one of the two-Judge majority in

Sanati was Judge Widener, who upon a detailed analysis of the

issues involved came in ihe instant matter below to side with the

majority concerning single evidence invocation.

embodied in the APA. This argument misses the mark.

As shown below, Section 7(c) is inapplicable to the in-

vocation phase of the interim presumption and both the

letter and the policy of the APA are met by requiring

the consideration of “all relevant evidence” in rebuttal.’

It is unnecessary for this Court to reach a determina-

tion on that issue. As shown, Section 7(c), by its own

terms, does not apply to the invocation stage of the pre-

sumption.

Section 7(c) of the APA, 5 U.S.C. § 556(d), provides

in relevant part:

“Except as otherwise provided by statute, the pro-

ponent 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

or those parts thereof cited by a party and supported

by and in accordance with the reliable, probative, and

substantial evidence... . A party is entitled to pre-

sent his case or defense by oral or documentary evi-

dence, to submit rebuttal evidence, and to conduct

such cross-examination as may be required for a full

and true disclosure of the facts.

Section 7(c) applies by its terms only to “rules,” “or-

ders,” and “sanctions.” The mere invocation of a pre-

1° The Federal Respondent makes the argument that Section 7(c)

of the APA has been expressly superceded by the Black Lung Act.

Brief of Federal Respondent, p. 34, n.30. Section 422(a) of the

Black Lung Benefits Act, 30 U.S.C. § 932(a), incorporates by refer-

ence Section 19 of the Longshore Act, 33 U.S.C. § 919. Section 919

in turn generally incorporates the APA provisions, including Sec-

tion 7(c). However, the Black Lung statute contains an express

exception to these incorporations where “otherwise provided

by regulations of the secretary.” 30 U.S.C. § 932 (a). The Director

also points out that the first sentence of Section 7(c) itself begins

“except as otherwise provided by statute ...” The Director argues

that t) hose 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.” Id.

27

sumption in the course of an adjudication is neither a

“rule,” “order” or a “sanction.”

Invocation of the presumption clearly does not qualify

as a rule“ as the term is defined in 5 U.S.C. § 551(4).

None of the parties have so asserted.

Furthermore, invocation of the presumption does not

constitute an “order” as the term is defined in 5 U.S.C.

§ 551(6). That section provides:

“ ‘Order’ means the whole or a part of a final dis-

position, whether affirmative, negative, injunctive, or

declaratory in form, of an agency in a matter other

than rule making but including licensing ;”

In ITT Corp. v. Local 134, IBEW, 419 U.S. 428 (1975),

this Court held that the statutory definition of “order”

as “the whole or part of a final disposition. . of an

agency .. .” means that the disposition must have “some

determinate consequences for the party to the proceed-

ing.“ 419 U.S. at 443. In TTT Corp., an employer filed

an unfair labor practice charge against a union under Sec-

tion 8(b)(4)(D) of the National Labor Relations Act.

Pursuant to Section 10(k) of the Act a hearing was held

before an agent of the National Labor Relations Board to

hear and determine the dispute out of which the unfair

labor practice arose. The Board rendered a decision ad-

verse to the union which then indicated it would not

comply therewith. A Complaint was thereafter issued

on the unfair labor practice charge and a hearing before

a trial examiner resulted in a cease and desist order

against the union. The union appealed the order partially

on the basis that it had not been afforded the protections

under the APA at the Section 10(k) hearing.

In holding that the APA did not apply to the Section

10(k) proceeding, this Court noted that, “The Board

does not order anybody to do anything at the conclusion

of a §10(k) proceeding ... . ‘the §10(k) decision

standing alone binds no one’. We conclude, therefore,

that the § 10 (K determination is not itself a final dis-

position’ within the meaning of order“... .” 419 U.S.

at 443-444.

The union in ITT Corp. further argued, however, that

if the Section 10(k) decision was not a “final disposi-

tion,” it was at least “part of a final disposition” within

the meaning of 5 U.S.C. § 551(6). In rejecting the argu-

ment this Court responded that:

“While one might argue that an intermediate pro-

ceeding within an agency is necessarily a ‘part’ of a

‘final order,’ we think a sounder interpretation of

the language Congress used is that the phrase ‘a

whole or a part’ refers to components of that which

is itself the final disposition required by the defini-

tion of ‘order’ in § 551(6).”

419 U.S. at 443.

In the context of the Black Lung Act, it is the decision

of the Administrative Law Judge and not his mere in-

vocation of the presumption which is the “final disposi-

tion” having “determinate consequences” for the parties.

The invocation of the presumption, far from being a final

decision, rather is an “intermediate proceeding” which

“standing alone” binds no one. The binding and conse-

quential agency decision cannot be rendered until after

the rebuttal phase. Accordingly, the invocation of the

presumption cannot be an “order” under the standards

of ITT Corp.

Consequently, in light of ITT Corp., the Petitioners

attempt to pigeonhole the invocation of the presumption

into the definition of a “sanction” within the meaning of

5 U.S.C. § 551(10) (E).” That section provides:

2° The term “sanction” is of dubious applicability here. A favor-

able black lung decision is an award of benefits to a disabled miner

and not a penalty levied against a coal operator. Nonetheless, the

Court need not reach this issue since Section 7(c) does not apply

to the invocation stage even if an award is a “sanction” under

the APA.

“‘sanction’ includes the whole or a part of an

* * 0 o

(E) assessment of damages, reimbursement, restitu-

tion, compensation, costs, charges, or fees;”

It follows from the discussion supra with respect to the

definition of “order” that the invocation of the presump-

tion does not itself constitute an agency’s assessment of

compensation. Again, the mere invocation of the pre-

sumption, standing alone, “binds no one.” ITT Corp.,

419 U.S. at 444.

Similarly, the Petitioners’ attempts to argue that the

invocation of the presumption is a “part of” the assess-

ment are unavailing. To be consistent with TTT Corp.

the phrase “whole or a part” in Section 551(10) must

refer to “components of that which is itself“ the assess-

ment of compensation. The invocation of the presump-

tion, therefore, does not meet the definition of a “sanc-

tion” under the statute. The invocation is only an in-

termediate step in a possible assessment of compensation.

What is clear from the above is that Section 7(c), by

its terms, applies, if at all, only when the final disposi-

tion is made, or the compensation assessed, and not

earlier. All Section 7(c) requires is that the trier of fact

weigh all evidence at the close of a hearing and render

a final decision or assessment only upon a preponderance

of the evidence. Steadman v. SEC, 450 U.S. 91 (1981).

Sensing the weakness of their “part of” argument,

Petitioners assert that in many cases the presumption is

so difficult to rebut that invocation of the presumption is

the functional equivalent of a “final disposition,” and

that therefore the APA should apply. This argument

fails for several reasons. First, as shown above, it does

not square with the interpretations of “order” and “sanc-

tion” mandated by /TT Corp. Secondly, as shown else-

where, there are a number of ways that operators can

and do challenge the invocation of the presumption.

Thirdly, Section 727.203 as interpreted by the Fourth

Circuit provides a coal mine operator with abundant

opportunity to submit rebuttal evidence and under the

“all relevant medical evidence” provision of subsection

(b), the ALJ is commanded to consider it. Hence, the

protections of Section 7(c) are fully afforded black lung

respondents. Finally, the APA is a statute of general

application and its provisions should not be effectively re-

written merely because an operator has difficulty in prov-

ing its case in a particular claim.

CONCLUSION

Based upon all of the foregoing, the judgment of the

Fourth Circuit holding that under 20 C. F. R. § 727.203

(a) a black lung claimant may invoke the presumption

upon a showing of ten years of coal mine employment

and the production of a single item of qualifying evi-

dence should be affirmed.

Respectfully submitted,

MICHAEL H. HOLLAND * GRANT CRANDALL

MICHAEL DINNERSTEIN CRANDALL & PYLES

UNITED MINE WORKERS OF AMERICA Suite 414, Medical Arts Bidg.

900 15th Street, N.W. P.O. Box 3465

Washington, D.C. 20005 Charleston, WV 25334

(202) 842-7330

PATRICK NAKAMURA

Law OFrFrices or Stropr & NAKAMURA

2101 City Federal Bidg.

Birmingham, AL 35203

* Counsel of Record

* The Federal Respondent acknowledges that the Fourth Cir-

cuit’s interpretation of the interim presumption is entirely consist-

ent with Section 7(c) of the APA. Brief of Federal Respondent,

p. 35, 2.32.