# Opposition Brief — Director, Office of Workers' Compensation Programs v. Greenwich Collieries

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 512 U.S. 267

## Text

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ms In The a
; Supreme Court of the United States
3 October Term, 1993
“ef rs
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® DIRECTOR, OFFICE OF WORKERS’

3 COMPENSATION PROGRAMS, UNITED STATES
Z DEPARTMENT OF LABOR, -

Petitioner,
v.

GREENWICH COLLIERIES,
Respondent.
>

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Third Circuit
>

BRIEF OF RESPONDENT GREENWICH
COLLIERIES IN OPPOSITION
«

Joun J. Bacnato
Counsel of Record
Spence, Custer, SAYtor, WoLFe &
Rose
U.S. National Bank Building
P.O. Box 280
Johnstown, Pennsylvania 15907
(814) 536-0735

Mark E. SoLOMONS
Laura Metcorr Kiaus
ArTeR & Happen

Suite 400K

1801 K Street, N.W.
Washington, D.C. 20006
(202) 7100

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BEST

QUESTIONS PRESENTED

1. Does section 7(c) of the Administrative Procedure
Act, 5 U.S.C. § 556(d), authorize the U.S. Department of
Labor’s administrative law judges (“ALJ”) to find facts in
favor of certain classes of parties, based solely upon the
identity of the party, even if the fact is not, in the ALJ’s
opinion, supported by the weight of the evidence, i.e., a
preponderance, but the evidence pro and con is roughly
equal?

2. If section 7(c) of the Administrative Procedure
Act compels an ALJ to find only facts that are supported
by the weight of the evidence, has Congress expressly
superseded the requirements of section 7(c) in the Black
Lung Benefits Act and the Longshore and Harbor-
workers’ Compensation Act, in compliance with the rule
against supersedure contained in section 12 of the
Administrative Procedure Act, 5 U.S.C. § 559?

ii
LIST OF PARTIES AND RULE 29.1 STATEMENT

Andrew Ondecko (“Ondecko”) is a claimant for ben-
efits under the Black Lung Benefits Act. Petitioner below
and now Respondent, Greenwich Collieries, is a wholly
owned subsidiary of the Pennsylvania Mines Corpora-
tion. The Petitioner, Director, Office of Workers’ Compen-
sation Programs, United States Department of Labor, is
the administrator of the Black Lung Program and is a
statutory party in all black lung claims. 30 U.S.C. § 932(k).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..............cccccccccs. i

LIST OF PARTIES AND RULE 29.1 STATEMENT... ii

TABLE OF AUTHORITIES ........... ccc cece ccecese iv

STATEMENT OF THE CASE....................... 2

IE GOGKARb EbUdeEs bdveGicceckhbescnccseckc y

I. THE CIRCUITS AND THE AGENCY DISAGREE :
ll. THE THIRD CIRCUIT’S DECISION IN MAHER

ET Gu eeh ae eel diac édceaduecacukcus 13

Ill. THIS IS AN IMPORTANT CASE.............. 21

iv

TABLE OF AUTHORITIES

Page
Cases:
Adams v. Director, Office of Workers’ Compensation
Programs, 886 F.2d 818 (6th Cir. 1989).............. 4
Addington v. Texas, 441 ee Ge GOOD ov ccececctvces 8
Ardestani v. INS, 112 S. Ct. 515 (1991)............... 11
Bowen v. Georgetown Univ. Hospital, 488 U.S. 204
SD 48 08 d60cd cde rineendenedediebsNeskaoebenaces 17
Brownell v. We Shun, 352 U.S. 180 (1956) ............ 19
Campbell v. Director, Office of Workers’ Compensation
Programs, 846 F.2d 502 (8th Cir. 1988).............. 4
Compton v. Inland Steel Co., 933 F.2d 477 (7th Cir.
TEE Sonera iis Rralieea ee 3
Del Vecchio v. Bowers, 296 U.S. 280 (1935)......... 16, 17

Director, Office of Workers’ Compensation Programs
v. Alabama By-Products Co., 560 F.2d 710 (5th Cir.
PPS ASEERGhORaShdes chub teed pnseehnneeddee telus 11

Director, Office of Workers’ Compensation Programs
v. Peabody Coal Company, 554 F.2d 310 (7th Cir.

PONE 9669600600 ns tunnsbcdtondendcadeunbtcstécencs 11
Estate of Cowart v. Nicklos Drilling Co., 112 S. Ct.
ED oS heh sKnENKE Kees deneneSEEAeROkesecere: 17

Freeman United Coal Mining Co. v. Director, Office of
Workers’ Compensation Programs, 988 F.2d 706, reh’g

denied, 999 F.2d 291 (7th Cir. 1993)....... 4, 9, 10, 12, 14
Grizzle v. Pickands Mather & Co., 994 F.2d 1093 (4th
Gal SET $646 bnGe de wEned KdiuaeaddbedbhedkGuhescexce Mu

Maher Terminals, Inc. v. Director, Office of Workers’
Compensation Programs, 997 F.2d 1277 (3d Cir.
SEES SUA en dnccucneancupeusenssccanctacnaens passim

Vv

TABLE OF AUTHORITIES - Continued

Page
Marcello v. Bonds, 349 U.S. 302 (1958) ............... 19
Morrison-Knudtsen Constr. Co. v. Director, Office of
Workers’ Compensation Programs, 461 U.S. 624
Ss Sd nba me hand ihebdensdedentebscascesuaucees< 17
Mullins Coal Co. v. Director, Office of Workers’ -
sation Programs, 484 U.S. 135 (1987)....... 2, 3, 9, 10, 14
NLRB v. Patrick Plaza Dodge, Inc., 522 F.2d 804 (4th
i ME pundesecochuenhussesisssencesuuceénesie.s 18
NLRB v. Transportation Management Corp., 462 U.S.
PP RN GS4dncnnscsbanndbonesend 10, 11, 12, 19, 20
Pennsylvania R. Co. v. Chamberlain, 288 U.S. 33
Se 6b cuscdnutdsscncestedentsedcennivabensecese 18

Potomac Electric Power Co. v. Director, Office of
Workers’ Compensation Programs, 461 U.S. 624
I Whth Caden as cedeauth eebnsvbeendedkdbdekeceres 17

Professional Reactor Operator Society v. U.S. Nuclear
Regulatory Commission, 939 F.2d 1047 (D.C. Cir.

ad es Gabbhedis edi cevubaddecsebeacicenes 11, 19
Provance v. United States Steel Corp., 1 Black Lung

Rep. (MB) 1-483 (Ben. Rev. Bd. 1978) ............. 16
Robinson v. Pickands Mather & Co., 914 F.2d 35 (4th

I I ed i elk a 3
Santosky v. Kramer, 455 U.S. 745 (1982)............... 8
Skukan v. Consolidation Coal Co., 993 F.2d 1228 (6th

SE EE > 6 thdnte dbidniddtosséhdeunideunthoot 9, 10, 12
Southern Pac. Co. v. Sheppard, 112 F.2d 147 (5th Cir.

Db tkideedeehad» s¥tuueltenaltndie dav ondince cess 16
Southern S.S. Co. v. Norton, 101 F.2d 825 (3d Cir.

PChuvdudhedeneusdesesheusunsusakeuacedsucseuses 16

vi

TABLE OF AUTHORITIES - Continued
Page
Steadman v. SEC, 450 U.S. 91 (1981)............. passim
Trent Coal Co. v. Day, 739 F.2d 116 (3d Cir. 1984) .... 11

U.S. Industries v. Director, Office of Workers’ Com-

pensation Programs, 455 U.S. 608 (1976)............ 16
U.S. Pipe & Foundry Co. v. Webb, 595 F.2d 264 (5th
Be SE Unease cssacvescdddeveneensoudecccdeseces 11

STATUTES AND REGULATIONS:

Administrative Procedure Act, as amended, 5

U.S.C. §§ 551-559, 701-706 (1988)................... 1
Section 4(b), 5 U.S.C. § 551(10)(E) (1988) .......... 18
Section 7(c), 5 U.S.C. § 556(d) (1988)............... 2
Section 12, 5 U.S.C. § 559 (1988)........ 8, 13, 19, 21
Black Lung Benefits Act, as amended, 30 U.S.C.
i vos sdunads dhesheendvadtionceesens 2
Section 422(a), 30 U.S.C. § 932(a) (1988)............ 6
Section 422(k), 30 U.S.C. § 932(k) (1988)............ ii
Longshore Act, as amended, 33 U.S.C. §§ 901-952
Dh sine cusensebeduceUeedssnesdeenndateresecees 6
Section 19(d), 33 U.S.C. § 919(d) (1988) ......... 7, 18
Section 20(a), 33 U.S.C. § 920(a) (1988)............ 16
Se Wes Ob ED GUD ote dddecsceuccesctevcssecces 13
Federal Coal Mine Health and Safety Act of 1969,
Pub. L. No; 91-173, 83 Stat. 792, as amended ...... 2

Vii

TABLE OF AUTHORITIES - Continued

Page
Longshore and Harbor Workers’ Compensation
Act, Pub. L. No. 92-576, 86 Stat. 1261 (1972)...... 16
Black Lung Benefits Act of 1972, Pub. L. No.
ee 2
Black Lung Benefits Revenue Act of 1977, Pub. L.
INO. 95-227, 92 Stat. 11 (1978)........ 2c cece eenee 2
Black Lung Benefits Reform Act of 1977, Pub. L.
INO. 95-259, 2 Stat. GB (197B)..... cc ccccccccccess 2
Black Lung Benefits Revenue Act of 1981 and
Black Lung Benefits Amendments of 1981, Pub.
L. No. 97-119, 95 Stat. 1635 (1981)............... 2, 3
Consolidated Omnibus Budget Reconciliation Act
of 1985, Pub. L. No. 99-272, 100 Stat. 312, 313
SN dd ceUEGVaNEGUbaneGEvEbdesedeékcnesédeerecee 2
Omnibus Budget Reconciliation Act of 1987, Pub.
L. No. 100-203, 101 Stat. 1330 (1987)............... 2
Black Lung Program Regulations
wo cccnsevcesecsonecacacess 5
ee Ne I nrc cncccccvsececeveseanes 13
ree Se 2 13
re SE Nc vc ckccsccscccencodsvene 13

MISCELLANEOUS:

Sen. Comm. on the Judiciary, 79th Cong., 2d Sess.,
Legislative History, Administrative Procedure Act
DP RibuledNEGbwadenevessekeeaceecncess: 7, 8, 19, 20

S. Rep. No. 209, 95th Cong., Ist Sess. (1977) ..... 14, 15
S. Rep. No. 743, 92d Cong., 2d Sess. (1972) ......... 14

Viii

TABLE OF AUTHORITIES - Continued

Page
S. Rep. No. 248, 79th Cong., 2d Sess. (1946).......... 7
H.R. Rep. No. 1980, 79th Cong., Ist Sess. (1945)..... 18
Fe Come, TOE. ZOGD GHGs < ccc cccvcccccecscvccccvecse 8
fe Se fF PPPTTET TTT Tree 8
Attorney General’s Manual on the Administrative
Pe EE nn cock cp ceeded aise ee anes ¢ 19
3A Larson, The Law of Workmen's Compensation
SE 6b 6s66nocdsnekddes sednesvenasbeeianstsses ase 16

Verkuil, et al., Administrative Conference of the
United States, The Federal Administrative Judiciary
ED hincosdeseubVeebisstcendéedbencartesssnos ces 21

Brief for Federal Respondent, Mullins Coal Co. v.
Director, Office of Workers’ Compensation Pro-

grams, 484 U.S. 135 (1987) (No. 86-327) ............ 3

No. 93-744
®

In The

Supreme Court of the United States

October Term, 1993
rY

DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,

Petitioner,

Vv.

GREENWICH COLLIERIES,
Respondent.

¢

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Third Circuit
>

BRIEF OF RESPONDENT GREENWICH
COLLIERIES IN OPPOSITION
¢

Respondent Greenwich Collieries respectfully
opposes the petition for a writ of certiorari to the United
States Court of Appeals for the Third Circuit. Greenwich
acknowledges, however, that disagreements among sev-
eral courts of appeals over the meaning of key provisions
of the Administrative Procedure Act, 5 U.S.C. §§ 551-559,
governing on-the-record adjudications before dozens of
federal boards and agencies warrant the attention of this
Court.

STATEMENT OF THE CASE

A. In 1987, this Court held that a claimant for bene-
fits under the Black Lung Benefits Act,! may utilize a
very powerful presumption called the “interim presump-
tion” if the clairaant establishes a fact that invokes the
presumption by a preponderance of the evidence. Mullins
Coal Co. v. Director, Office of Workers’ Compensation Pro-
grams, 484 U.S. 135, 159 (1987). In petitioning the case to
this Court, the Mullins Coal Company argued that the
application of a preponderance standard is compelled by
the plain language of the regulation, as well as by section
7(c) of the Administrative Procedure Act (“APA”). 5
U.S.C. § 556(d). The APA argument was based, in part, on
this Court’s decision in Steadman v. SEC, 450 U.S. 91
(1981). In Mullins, this Court agreed that the plain lan-
guage of the regulation establishing the interim presump-
tion embodied a traditional preponderance-of-the-
evidence standard of proof, and did not, for this reason,
reach the APA question. Mullins Coal, 484 U.S. at 161 n.35.

In briefing this question, the Department of Labor
(“DOL”) agreed that section 7(c) applied in black lung

' Part C of Title IV of the Federal Coal Mine Health and
Safety Act of 1969, as amended by the Black Lung Benefits Act
of 1972, 86 Stat. 150, and as further amended by the Black Lung
Benefits Reform Act of 1977, 92 Stat. 95, the Black Lung Benefits
Revenue Act of 1977, 92 Stat. 11, the Black Lung Benefits Reve-
nue Act of 1981, and the Black Lung Benefits Amendments of
1981, 95 Stat. 1635, Consolidated Omnibus Budget Reconcilia-
tion Act of 1985, 100 Stat. 3:2, 313 (1986), Omnibus Budget
Reconciliation Act of 1987, 101 Stat. 133C (1987) (hereinafter
referred to as the “BLBA”).

claims, but noted that it was applied “as modified by a
‘true doubt’ rule.” Brief for the Federal Respondent at 34,
Mullins Coal, 484 U.S. 135 (No. 86-327). Under the true
doubt rule, “close calls go to the claimant.” Id. at 33. This
Court noted DOL’s advocacy of a true doubt rule, but did
not expressly approve or disapprove the rule. Mullins
Coal, 484 U.S. at 144 n.12.2 As dissenting Justice Marshall
suggested, the rule was not frequently used. See id. 484
U.S. at 163 n.2 (Marshall J. dissenting). This was true
while the interim presumption and other very generous
statutory presumptions and rules oi proof applied.

In 1980, DOL repealed the interim presumption for
new claims, having been instructed to do so by Congress
in 1978. In 1981, after concluding that the black lung
program was excessively generous and had outstripped
reasonable attempts at benefit funding as a result of over-
inclusive benefit criteria, Congress repealed many of the
Act’s statutory presumptions and rules of proof designed
to give claimants a special advantage in adjudications.
Black Lung Benefits Revenue Act of 1981 and Black Lung
Benefits Amendments of 1981, Pub. L. 97-119, 95 Stat.
1635, §§ 201-04 (1981). See Compton v. Inland Steel Co., 933
F.2d 477, 484-90 (7th Cir. 1991) (Coffey J. concurring).
Under the new law, most claimants are required to prove
their eligibility by competent evidence. See e.g., Robinson
v. Pickands Mather & Co., 914 F.2d 35, 38 (4th Cir. 1990);

2 It may be argued that the rule was expressly disapproved
in the Court's adoption of a preponderance standard.

Adams v. Director, Office of Workers’ Compensation Pro-
grams, 886 F.2d 818, 820 (6th Cir. 1989); Campbell v. Direc-
tor, Office of Workers’ Compensation Programs, 846 F.2d 502,
503 (8th Cir. 1988).

By the late 1980s, some ALJs often employed the true
doubt rule to resolve evidentiary conflicts or merely to
excuse themselves from conducting a careful review of
the evidence. Use of the rule is not compelled by the Act,
any regulation or judicial decision and ALJs treat it as an
optional decisional device. The Department of Labor’s
Benefits Review Boa:d, which conducts the appellate
review of ALJs’ decisions, has not held that an ALJ must
employ the true doubt rule and generally allows ALJs to
use the true doubt rule or the preponderance standard at
the ALJs’ election. Because the rule has no concrete
source and its jurisprudence is ad hoc, the applicability of
the rule in any case has always been unpredictable,
depending more on the identity of the ALJ than on the
characteristics of the proof in the record.

As the rule was applied more frequently following
repeal of statutory proof enhancements, challenges to the
validity of the rule increased. The rule is not the product
of congressional deliberation or even the give and take of
the regulatory process. For claim defendants, it seemed
that the rule was employed solely for the purpose of
rejecting otherwise persuasive, if not compelling, evi-
dence. It is self-evident that a claimant who proves his or
her case by evidence has no need for a true doubt rule.
Judge Easterbrook is correct in observing that the rule's
purpose seems to be to “re-create” the repealed presump-
tions and rules possibly “overriding the contrary judg-
ment of Congress.” Freeman United Coal Mining Co. v.

Office of Workers’ Compensation Programs, 999 F.2d 291, 293
(7th Cir. 1993) (statement of Easterbrook J. respecting the
suggestion for reh. en banc).

B. Andrew Ondecko filed a claim for black lung
benefits on January 31, 1989. The claim was properly
adjudicated under DOL’s permanent eligibility rules
adopted following repeal of the interim presumption.
20 C.F.R. Part 718 (1993). DOL administratively denied
the claim and a hearing before an ALJ was requested. On
August 3, 1990, ALJ Joan Huddy Rosenzweig awarded
benefits. The ALJ found that Ondecko suffered from
pneumoconiosis by applying true doubt to a factual
record containing one qualified physician’s opinion that
Ondecko’s x-rays showed pneumoconiosis and the opin-
ions of eight qualified readers that the chest x-rays were
negative for the disease. App. 41a. The ALJ also deter-
mined that Ondecko was totally disabled due to the dis-
ease by applying true doubt to a record containing a
family doctor’s opinion that Ondecko was so disabled
and the opinions of four highly qualified specialists to the
contrary. App. 44a. Greenwich appealed to the Benefits
Review Board and there argued that the true doubt rule
was inappropriately applied because the proof was not
equal® and that the rule was, also, an unauthorized

3 Greenwich continues in its belief that the evidence in this
case is far from equal, and that the ALJ's finding to the contrary
is not supported by substantial evidence or an accurate, rea-
soned review of the record. The true doubt rule is so offensive to
claim defendants because it is most often used in this fashion
and not to address irreconcilable evidence. Greenwich expressly
preserves its right to further challenge the ALJ's weighing of the
evidence.

supersedure of the APA-mandated preponderance-of-the-
evidence standard. The Board affirmed, holding that the
rule is valid and that the Board would not disturb the
ALJ’s weighing of the evidence. App. 20a, 21a.

The United States Court of Appeals for the Third
Circuit reversed. App. 2a. The Court found that DOL’s
regulations assigning to claimants the burden of “pro-
ving” facts alleged, coupled with section 7(c) of the APA
foreclose a result in which employers are assigned the
burden of disproving entitlement facts in a black lung
claim. In construing section 7(c), the Third Circuit relies
on this Court’s holding in Steadman v. SEC, 450 U.S. 91,
interpreting the third sentence in section 7(c) to prohibit
an ALJ from finding a fact unless the finding is supported
by a preponderance of the reliable and probative evi-
dence in the record. App. 12a-13a.

The Third Circuit observes that the true doubt rule
impermissibly excuses the claimant from proving the
facts needed to support an award. The award made by
the ALJ was, therefore, vacated and the case was
remanded for a determination of whether the evidence
supporting an award preponderated. App. 16a. Rehearing
was denied, en banc. App. 48a.

C. The Black Lung Act contains no procedures of its
own for the adjudication of claims filed with DOL. For
this purpose, the Black Lung Act incorporates by refer-
ence the adjudicatory provisions of the Longshore and
Harborworkers’ Compensation Act. 33 U.S.C. §§ 901-952
(“LHWCA”), incorporated in parts by reference into
30 U.S.C. § 932(a). The LHWCA provides: “Notwithstand-
ing any other provisions of this chapter, any hearing held

under this chapter shall be conducted in accordance with
the provisions of section 554 of Title 5.” 33 U.S.C.
§ 919(d).

On the same day that Ondecko’s case was argued to
the Third Circuit, the panel also heard argument in a
Longshore claim filed on behalf of Michael Santoro. Here
too, the ALJ resolved conflicts in the evidence by applica-
tion of the true doubt rule, and the Third Circuit vacated
and remanded for a review of the record under a prepon-
derance standard. The Third Circuit’s decision in San-
toro’s case differs from its decision in Ondecko in its
complete reliance on section 7(c), and in particular on the
third sentence of that paragraph. Maher Terminals, Inc. v.
Director, Office of Workers’ Compensation Programs, 997 F.2d
1277, 1282-85 (3d Cir. 1993). DOL also has asked this
Court to review the decision in Maher.

Greenwich Collieries believes that the analysis in
Maher is correct, and that the Third Circuit’s partial
reliance in Ondecko on DOL’s regulations purporting to
assign a burden of persuasion to claimants in the tradi-
tional way, is unnecessary. When the framers of the APA
set out to adopt uniform standards for administrative
adjudication, an important purpose was to control the
way agencies evaluated proof and reached findings of
fact. See Sen. Comm. on the Judiciary, Legislative History,
the Administrative Procedure Act, 79th Cong., 2d Sess. 185,
208, 210, 321, 365 (1946) (“Legislative History”). Congress
intended these features of administrative adjudication to
parallel the traditional standards applied in the courts.
Steadman, 450 U.S. at 101 (quoting S. Rep. No. 248, 79th
Cong., 2d Sess. 365 (1946)). Congress did not leave room
for agency corrections or deviations for any reason. “[I]t

will be the duty of the reviewing courts to prevent avoid-
ance of the requirements of the bill by any manner or
form of indirection. . . . ” 92 Cong. Rec. 2148, 2159
(statement of Sen. McCarran). “Implied amendments [to
the APA] shall be precluded.” Legislative History, supra p.
7 at 43.4 See also Professional Reactor Operator Society v. U.S.
Nuclear Regulatory Commission, 939 F.2d 1047, 1052 (D.C.
Cir. 1991).

The APA does not contemplate the allocation of bur-
dens or standards of proof with an eye toward the iden-
tity of the party the proof favors. The third sentence of
section 7(c) of the APA, in light of Steadman, most natu-
rally means that ALJs may not find facts unless the facts
are proven by a preponderance. This is the instruction to
the factfinder that is embodied in section 7(c) “concern-
ing the degree of confidence society thinks he should
have in the correctness of factual conclusions. ... ”
Santosky v. Kramer, 455 U.S. 745, 755 (1982) (quoting
Addington v. Texas, 441 U.S. 418, 423 (1979)). No agency’s
regulatory gloss is necessary, and no agency’s super-
sedure is appropriate.

The Third Circuit came to this conclusion in Maher
and the court is correct in that holding.

¢

4 The tone of many of the comments of the framers and
sponsors of the APA exhibit concern that full voluntary agency
compliance with its provisions might not be readily forthcom-
ing. The unusual rule against supersedure in section 12 under-
scores the concern. 5 U.S.C. § 559.

ARGUMENT
I. THE CIRCUITS AND THE AGENCY DISAGREE

There is no doubt that the circuits disagree. The
Third Circuit here finds the true doubt rule to be incom-
patible with the APA, Steadman and Mullins Coal. On
these authorities, the rule is invalidated. The Sixth Circuit
and the Seventh Circuit find no such incompatibility and
have approved the use of the rule. Skukan v. Consolidation
Coal Co., 993 F.2d 1228 (6th Cir. 1993); Freeman United Coal
Mining Co. v. Director, Office of Workers’ Compensation Pro-
grams, 988 F.2d 706, reh’g denied, 999 F.2d 291 (7th Cir.
1993). The Fourth Circuit rejects the reasoning of the
Seventh Circuit, but has deferred its consideration of the
validity of the rule. Grizzle v. Pickands Mather & Co., 994
F.2d 1093, 1098 n.7 (4th Cir. 1993).°

Even where the rule has been approved, there is little
agreement on the reasoning that supports it. The only
thing that has been consistent in DOL’s defense of the
rule is the inconsistency of the agency’s arguments. Much
of what is argued in the petition for certiorari is new or
revisionist. Here, DOL argues variously that the APA
does not apply, at least in the black lung claims, unless
DOL wishes it, and then that it applies only to the degree

5 DOL cites several cases arising in other circuits where an
ALJ's use of a true doubt rule was approved. None of these
cases involved a challenge to the validity of the rule, and they
are not, therefore, in conflict with the Third Circuit's opinions
here. No court of appeals has disagreed with the Third Circuit's
invalidation of the rule in Maher in a case arising under the
LHWCA. Prior applications of the rule in LHWCA cases have
not been tested in the face of an APA challenge.

10

that DOL wishes. DOL’s Petition for Writ of Certiorari at
24. But if the APA applies, then it does not allocate
“burdens of persuasion” and the agency is free to do so
consistent with the objectives of the LHWCA or BLBA.
Those objectives, of course, contemplate favoring claim-
ants, and if the agency elects to do so by embracing a true
doubt rule, its judgment deserves deference. Finally, if
the APA applies, and if it obligates factfinders to find
facts only if they are supported by a preponderance of the
evidence, then the remedial objectives of the BLBA and
LHWCA supersede the APA. Id.

The Seventh Circuit held that the APA “unquestiona-
bly” applies in black lung adjudications. Freeman United,
988 F.2d at 710 n.6. This court, however, settled on the
conclusion that the APA does not assign “burdens of
persuasion” and that these burdens are assigned judi-
cially. Taking the true doubt rule as its own, the Seventh
Circuit adopts it, in light of certain legislative comments,
as a matter of judicial preference. Id. 988 F.2d at 711.
Support for the approach is drawn from a footnote in this
Court’s decision in NLRB v. [ransportation Management
Corp., 462 U.S. 383, 403 n.7 (1983), two snippets of legisla-

hive history and Mullins Coal. Freeman United, 988 F.2d at
711-12.

The Sixth Circuit agrees with the Seventh that “the
true doubt rule is a judicial construct which sprang from”
the remedial purpose of the BLBA. Skukan, 993 F.2d at
1236-7 n.8. The Sixth Circuit recognizes, however, that
DOL’s regulations assign the burden of persuasion to
claimants on facts not legislatively presumed, but this
court apparently does not believe that the job of assign-
ing burdens is DOL’s job. Id. 993 F.2d at 1238.

11

No court has agreed with DOL’s belief that the courts
must defer to DOL’s interpretation of its regulations to
extract the rule, and no court has agreed with DOL’s view
that, at least in black lung cases, it is bound by the APA at
the agency’s option only.® No court of appeals has agreed
with DOL’s unstated but apparent belief that deference
should be accorded the agency’s interpretation of the
APA in light of the objectives of the BLBA and LHWCA.
Deference is not appropriate on this account. See
Ardestani v. INS, 112 S. Ct. 515, 526 (1991) (Blackmun J.
dissenting); Professional Reactor Operator Society, 939 F.2d
at 1051.

The only identifiable center of gravity for DOL, the
Sixth Circuit and the Seventh Circuit has two simple
components. The first is that the “burden of proof” foot-
note in Transportation Management, addressing the first
sentence of section 7(c) of the APA, overrules or neutral-
izes the holding in Steadman addressing the third sen-
tence in section 7(c).?7 The second is that the remedial

6 DOL has argued from time to time, as it does here, that it
is bound neither by the APA nor the procedural imperatives of
the LHWCA. No court has agreed with DOL on these accounts,
and indeed the plain language of section 19(d) of the LHWCA,
33 U.S.C. § 919(d), forbids DOL’s interpretation, at least as to
that provision. See Director, Office of Workers’ Compensation Pro-
grams v. Alabama By-Products Co., 560 F.2d 710, 718 (Sth Cir.
1977); Director, Office of Workers’ Compensation Programs v. Pea-
body Coal Co., 554 F.2d 310, 341-42 (7th Cir. 1977); see also Trent
Coal Co. v. Day, 739 F.2d 116, 117 (3d Cir. 1984); U.S. Pipe &
Foundry Co. v. Webb, 595 F.2d 264, 273 (Sth Cir. 1979).

7? This is quite plain. Steadman holds that the courts are not
free, in an APA proceeding, to establish the standard for deter-
mining how much proof is needed to support a finding of fact

12

purpose of the BLBA allows the affirmation of a true
doubt rule, because the rule favors claimants. The Third
Circuit also acknowledged the remedial nature of the
BLBA and LHWCA, but was unable to conclude that
Transportation Management authorized a departure from
Steadman, inasmuch as the two cases addressed different
sentences in section 7(c) of the APA and different issues.
Maher, 992 F.2d at 1282-83.

The on-the-record adjudication provisions of the APA
apply in hundreds of different categories of proceedings
conducted by many federal boards and agencies. Most of
the statutes incorporating the APA carry a remedial or
benevolent public purpose. The question that is presented
here by DOL is whether the APA ought to give way when
the agency finds it too constraining.

Two feder | courts of appeals have effectively
refused to follow this Court's decision in Steadman, and a
federal agency has asked them not to do so. That surely
merits this Court's attention. It is, perhaps, more impor-
tant that the Department of Labor seeks to introduce a
party identity based standard for evaluating proof in
APA litigation, without congressional approval.® This is a

because “Congress has spoken.” Steadman, 450 U.S. at 96. The
Seventh Circuit thinks Congress was silent, thus authorizing a
judicial assignment of the standard. Freeman United, 988 F.2d at
711. The Sixth Circuit agrees, citing Freeman. Skukan, 993 F.2d at
1236.

8 Congress could, of course, adopt a true doubt rule for
black lung and longshore claims. When procedures for the adju-
dication of publicly funded veterans benefits claims were
revised and formalized in 1988, Congress expressly adopted a
true doubt rule, codifying an informal but longstanding agency

13

dangerous and inappropriate path to take, and it is one
that was anticipated and closed by the framers of the
APA in their adoption of the rule against supersedure.
5 U.S.C. § 559. This Court should step in to enforce that
rule.

Il. THE THIRD CIRCUIT’S DECISION IN MAHER IS
CORRECT

There is no language in either the BLBA or LHWCA
suggesting a true doubt rule. DOL’s LHWCA regulations
are silent on the point as are the BLBA regulations in
force for claims filed prior to the repeal of the statutorily
mandated presumptions. See 20 C.F.R. Part 727. DOL’s
new BLBA regulations assign claimants the “burden of
proving” their cases, 20 C.F.R. § 718.403, but elsewhere
under a general heading state “Congress intended that
claimants be given the benefit of all reasonable doubt.”
Id. § 718.3(c). No regulation articulates a “true doubt”
rule as it is described by DOL.

The Social Security Administration (“SSA”), which
adjudicated all black lung claims from 1970 to 1974,
employed no true doubt rule, but required claimants to
prove all facts not statutorily presumed, by a traditional

practice. 38 U.S.C. § 5107(b). DOL has not asked Congress to
adopt a true doubt rule for either the BLBA or LHWCA. When
the BLBA was substantially revised in 1982, to repeal most of
the presumptions and rules of proof most helpful to claimants,
DOL did not ask Congress to adopt a true doubt rule.

14

preponderance of the evidence. Mullins Coal, 484 U.S. at
154-55 n.27.?

There is no arguable source for the rule in the legisla-
tive history of the LHWCA, and DOL strains the relevant
text in relying on the black lung legislative materials cited
in support of the rule. DOL’s Petition for Certiorari at
18-19 (citing S. Rep. No. 743, 92d Cong., 2d Sess. 11
(1972); S. Rep. No. 209, 95th Cong., Ist Sess. 13 (1977)).
The 1972 Senate Report notes Congress's intent to resolve
doubts in favor of claimants, but this comment prefaces
the introduction of several new statutory presumptions
and rules of proof enacted in 1972, for implementation by
SSA. There was no DOL program at the time. In the next
paragraph, the Committee stated: “The Committee bill
gives the benefit of the doubt to claimants by [adopting
the new statutory provisions].” S. Rep. No. 743, supra.
Later in the same discussion, the Committee emphasizes
that when the new statutory provisions do not apply,
“It]he Committee intends that the burden will be placed
on the claimant to prove the existence of pneu-
moconiosis. . . . ” Id. at 13. The 1972 passage, which is
relied upon by the Sixth Circuit, the Seventh Circuit and
DOL, is more naturally read to restrict SSA’s authority to
relax proof standards beyond what Congress wrote. SSA

9 SSA applies no true doubt rule or its equivalent in disabil-
ity insurance adjudications. Whether or not the APA applies in
SSA’s disability insurance programs, the decisions in Skukan
and Freeman United suggest that a true doubt rule may be
applied in SSA claims as a matter of judicial preference. The
Social Security Act is no less remedial than the BLBA or

LHWCA.

15

adopted no true doubt rule. The 1977 document, in con-
text, is no more compelling. It simply recommends the
promulgation of regulations containing more liberal crite-
ria for objective testing. S. Rep. No. 209, supra p. 14 at 13.
DOL overlooks the legislative materials accompanying
the extensive 1981 amendments under which Ondecko’s
case was decided. These amendments reversed course in
a program perceived by Congress to be out of control, by
repealing virtually all of the liberalizing provisions
referred to in the 1972 and 1977 materials.1°

DOL also takes the Court on a curious trek in seeking
to create a lineage for the true doubt rule dating back to
the 1930s and the early days of the LHWCA. In arguing

'© It bears mention also that much of LIOL’s diccussion of
the need for a true doubt rule is both misleading and disin-
genuous. DOL points out that black lung claimants are “sick and
elderly individuals with limited resources,” “who find it diffi-
cult . . . to prove that their diseases are totally disabling or coal
mine related ... .” DOL notes that clinical “tests” may be fallible
“and that x-rays are imperfect means of ascertaining the exis-
tence of pneumoconiosis. .. . ” Id. These rhetorical flourishes, if
they were ever factual, have not been true for many years. Like
any other federal program that transfers billions of dollars
within a fairly restricted geographical area, the program has
spawned its own related industries that serve the needs of
claimants and employers alike. Few claimants with an arguable
case will be abandoned by this system or will be unable to
access it. Similarly, black lung is an exhaustively studied dis-
ease, and largely because of Congress's interest in it, x-ray and
testing technologies are probably better than most. The case that
is being presented to the Court here should not be influenced by
the popular, but largely false, mythology often cited in black
lung cases. Time has passed by these notions, and the 1981
amendments tq the BLBA demonstrate congressional awareness
of the current reality.

16

the case to the courts of appeals, DOL traced the rule to a
1978 Benefits Review Board decision in a black lung case.
Provance v. United States Steel Corp., 1 Black Lung Rep.
(MB) 1-483, 1-486 (Ben. Rev. Bd. 1978). There is no articu-
lation of a true doubt rule predating this decision, and
none of the earlier LHWCA cases cited by DOL holds that
employers must bear a “burden of persuasion” on all
factual issues presented in a claim. For the most part, the
earlier references to doubt resolving are judicial embel-
lishments in cases where the adjudicator’s findings are
being sustained because they are supported by substan-
tial evidence. See e.g., Southern S.S. Co. v. Norton, 101 F.2d
825, 827 (3d Cir. 1939); Southern Pac. Co. v. Sheppard,
112 F.2d 147, 148 (5th Cir. 1940).

The LHWCA cases cited for historical context focus
generally on the presumption of occupational causation
contained in section 20(a) of the LHWCA, 33 U.S.C.
§ 920(a), and virtually all of them predate the 1972 incor-
poration of the APA into the LHWCA. Pub. L. No. 92-576
§ 14, 86 Stat. 1261 (1972). Section 20(a) of the LHWCA
presumes that an injury or disease is occupationally
related, but it shifts no ultimate burdens to employers. It
is a bursting bubble rule that “falls out of the case” when
contrary probative evidence is offered. Del Vecchio v.
Bowers, 296 U.S. 280, 286 (1935). This Court has previ-
ously rejected the theory that section 20(a) shifts ultimate
burdens, and the opinion in the case fairly clearly pre-
cludes a section 20(a) based true doubt rule, as the rule is
described by DOL. U.S. Industries v. Director, Office of
Workers’ Compensation Programs, 455 U.S. 608, 613-15 &
n.7 (quoting 3A Larson, The Law of Workmen’s Compensa-
tion § 78.10 at 15-2 (1976)).

17

It appears, in fact, that the ALJ in Maher layered a
true doubt rule on top of section 20(a) because section
20(a) was not adequate to establish the claim. DOL
defends this enhancement of the statutory rule, notwith-
standing Del Vecchio, because of the independent viability
of the true doubt rule. DOL’s Petition for Writ of Cer-
tiorari at 10. This Court has often reminded the agency
that the LHWCA may not be expanded beyond its terms
on the pretext of boundless liberality. Estate of Cowart v.
Nicklos Drilling Co., 112 S. Ct. 2589, 2594 (1992); Morrison-
Knudtsen Constr. Co. v. Director, Office of Workers’ Compen-
sation Programs, 461 U.S. 624, 635-36 (1983); Potomac Elec-
tric Power Co. v. Director, Office of Workers’ Compensation
Programs, 449 U.S. 268, 282 & n.24 (1980).

No operational true doubt rule predates the Board’s
1978 decision, and even after it was announced the rule
was infrequently used in BLBA or LHWCA cases until
fairly recently. DOL’s attempt to provide a noble vintage
for the rule is not accurate. For the most part, DOL’s
reasoning, and in particular, its deference claim are 1993
developments originating in this litigation. Were this a
case in which the Court might be inclined to defer to the
agency, and this should not be such a case, this Court
would be deferring to a litigation-bred argument post-
dating by thirteen years, the regulations being inter-
preted. DOL’s deference claim is tenuous in this environ-
ment. See Bowen v. Georgetown Univ. Hospital, 488 U.S. 204,
212-13 (1991).

B. The solution to the questions presented here is
not found in the remote sources and revisionist history
presented by DOL, but in the plain language of the APA,
its history and Steadman. Neither the BLBA nor the

18

LHWCA contains anything remotely resembling a true
doubt rule. Both statutes, however, make the APA on-the-
record adjudication provisions applicable “[nJotwith-
standing any other provisions of this Act... .” 33 U.S.C.
§ 919(d). The APA prescribes standards of proof for the
agency adjudications in which it applies. One of those
standards is that ALJs needing to find facts may find
them if they are supported by a congressionally deter-
mined “minimum quantity of the evidence.” Steadman,
450 U.S. at 100. The minimum quantity of evidence that is
acceptable to support a finding of fact in an APA pro-
ceeding is a preponderance. Id. at 100-104; see also H.R.
Rep. No. 1980, 79th Cong., 1st Sess. 37 (1945). Where
evidence is in conflict or “equally supports two inconsis-
tent inferences,” the evidence falls short of a prepon-
derance and no fact is established. Pennsylvania R. Co. v.
Chamberlain, 288 U.S. 33, 39 (1933).

The third sentence of section 7(c) of the APA instructs
the factfinder that “[a] sanction may not be imposed or
rule or order issued” unless the APA proof standards are
satisfied. Where evidence relating to a fact needed to
support a rule, order or sanction"! is no stronger or more
persuasive than evidence to the contrary, no fact is
proven and under the APA no fact may be found. See e.g.,
NLRB v. Patrick Plaza Dodge, Inc., 522 F.2d 804, 809 (4th
Cir. 1975).

11 The APA defines “sanction” to include “the whole or any
part” of an agency’s assessment of damages or compensation.
5 U.S.C. § 551(10)(E).

19

Section 12 of the APA provides, inter alia:

Subsequent statutes may not be held to
supersede or modify this subchapter . . .
except to the extent that it does so
expressly... .

5 US.C. § 559.

Supersedure is narrowly construed and it must be
statutory. Brownell v. We Shun, 352 U.S. 180, 185 (1956);
Marcello v. Bonds, 349 U.S. 302, 310 (1958); Professional
Reactor Operator Society, 939 F.2d at 1052; Attorney Gen-
eral’s Manual on the Administrative Procedure Act 75 (1947).

DOL has made no appropriate case for supersedure
and seeks to escape section 12 mostly by reading any
meaning out of the third sentence of section 7(c) and
ignoring this Court’s interpretation of it in Steadman.
DOL’s argument is that the ALJ does not look only at the
proof when it is being weighed, but rather looks to see
who the parties are before getting on with the job. Ambi-
guities in the proof are then resolved not based upon the
strength and persuasion of the proof alone, but in the
final analysis, on the identity of the party the proof
favors. It seems quite clear that this is not what the
authors and proponents of the APA had in mind. See
Legislative History, supra p. 7 Foreward (1946).

DOL’s discussion of shifting burdens, burdens of per-
suasion, and Transportation Management diverts attention
from the central issues that are presented here. It is surely
true that standards of proof and burdens of proof are
related elements in the course of decisionmaking in APA
matters as well as all other kinds of litigation. It is also
true that the terminology and operation of these rules of

20

proof may become confusing, and if there has been any-
thing consistent in DOL’s arguments in support of the
true doubt rule, it is in the agency’s efforts to exploit this

confusion.

The confusion is not, however, too difficult to dispel.
The preponderance-of-the-evidence standard, as it is
described in section 7(c) of the APA and Steadman,
embodies a simple instruction. The instruction is that
facts ultimately found must be supported by evidence
that is at least slightly better than contrary evidence. DOL
seeks to use the burden of proof language in the first
sentence of section 7(c) to diminish the meaning intended
in the third sentence. It may be that the APA does not
assign ultimate burdens of persuasion, but the APA
clearly does establish a fact finding standard. It does not
do violence to any part of section 7(c) to effectuate the
meaning of the third sentence and let the burdens fall
where they may for all the parties to any proceeding. This
reading harmonizes Steadman and Transportation Manage-
ment, and accords with the intent of the APA’s framers
that section 7(c) operate as a whole. Legislative History,
supra p. 7 at 216, 302.

The first and second sentence of the section
[7(c)], therefore mean that where a party
having the burden of proceeding has come
forward with a prima facie and substantial
case, he will prevail unless his evidence is
discredited or rebutted. In any case, an
agency must decide “in accordance with the
evidence.” Where there is evidence pro and
con, the agency must weigh it and decide in
accordance with the preponderance.

Id. at 270-71.

21

DOL argues for a reading that creates irreconcilable
tension between the first and third sentences of section
7(c). DOL’s reasoning is wrong on that account alone. The
Third Circuit was correct in its reading of the relevant
language.

Ill. THIS IS AN IMPORTANT CASE

DOL argues that the case is important because it may
affect future BLBA and LHWCA claims, and indeed that
is true. For the private litigants here, it is important for
another reason. The comprehensive standards for admin-
istrative adjudication in the APA protect private litigants,
not only in BLBA and LHWCA matters, but in many
other matters of importance as well, from the attempts of
agencies to re-design basic adjudicatory procedures indi-
rectly to advance their policy objectives. The APA was
designed to ensure a level playing field when litigants
enter an ALJ’s courtroom. 5 U.S.C. § 559. The APA maxi-
mizes the independence of the adjudicator and guaran-
tees the fairness of the basic rules insulating both from
the ebb and flow of agency policies and politics. Agencies
have no great affection for the APA because it is a
restraint. Researchers have attributed the phenomenal
growth in the number of federal non-APA judges and
relative stagnation in the growth in the size of the ALJ
corps, at least in part, to agency dissatisfaction with the
independence of APA adjudicators and the inviolability
of APA rules. See generally, Verkuil, et al., Administrative
Conference of the United States, The Federal Administrative
Judiciary (1992).

22

DOL may convince Congress to free it from the APA
or expressly to enact a true doubt rule. Until that time,
this Court should enforce the APA according to its terms.

e

CONCLUSION

The Petition for a Writ of Certiorari to the United
States Court of Appeals for the Third Circuit should be
granted for the purpose of affirming the Third Circuit's
holdings in these cases.

Respectfully submitted,

JouHN J. BAGNATO
SPENCE, CUSTER, SAYLOR,
Wo re & Rose
U.S. National Bank Building
P.O. Box 280
Johnstown, Pennsylvania 15907

Mark E. SOLOMONS
LaurRA Metcorr Kiaus
Arter & HADDEN

Suite 400K

1801 K Street, N.W.
Washington, D.C. 20006

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0471%3A04. Public record. Not legal advice.