Amicus Curiae Brief — Director, Office of Workers' Compensation Programs v. Greenwich Collieries

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QUESTION PRESENTED

The Department of Labor’s “true doubt’’ rule assigns

to the opponent of a benefits claim under the Black Lung

Benefits Act and the Longshore and Harbor Workers’

Compensation Act the burden of persuading the factfinder

that the claimant is not entitled to benefits.

Does the true doubt rule violate section 7(c) of the Ad-

ministrative Procedure Act, which assigns the “burden of

proof’ to the “proponent”’ of a rule or order?

TABLE OF CONTENTS

Page

QUESTION PRESENTED .............ccccccccssccsssccsecesescees i

TAREE Gl AUTEURS TIED ceececcesscssintesosene ili

INTEREST OF AMICUS CURIAE ........ccccccccccssscsescees l

SUMMARY OF ARGUMENT. ..............ccccccsseccsscesseeees 2

PATIGUTEIBINE coccccsccossecescnnnssinscesesnnsennsnneneiannnnannnan 4

I. SECTION 7(C) OF THE APA ASSIGNS THE

BURDEN OF PERSUASION TO THE CLAIM-

ANT IN BLBA AND LHWCA CASES ............. 4

A. The Court Should Overrule Its Statement

Regarding APA Section 7(c) in NLRB v.

Transportation Management Corp., 462

US. SEB CRB. sccccceccccsetntannsmmaiiiaaane 4

B. The Ordinary Meaning of APA Section

7(c), in Line with itional Practice, Is

That ‘Burden of Proof’’ Places on the

Proponent the Burden of Persuasion. .... 8

C. The Legislative History of APA Section

7(c) Supports the Understanding That

“Burden of Proof’’ Includes the Burden

OE PPOUGUIIGER, ccccocccccscnscccnnenemeee 15

Il. APA SECTION 7(C) IS FULLY APPLICABLE

TO TEemees GATTBD ccccccccocceccsconmenneeee 19

A. The BLBA Regulation Petitioner Relies

Upon Is Grossly Insufficient To Supersede

CRO APPA. ..rcccccccsccessesenssssneagiee 20

B. Nothing in the LHWCA Is Inconsistent

We the Burden of Proof in Section -

BD. ccccocessssseccensnnsensensienanennnilnnnnnnnnnnn

III. TRUE DOUBT IS AN UNFAIR AND UNWAR-

RANTED RULE THAT UNDERMINES THE

REASONED ADJUDICATION OF BENEFITS

CEA TEE ......0scecorerescnssceasonsenesiaianniialinnnanan 25

CONC LB ION ..ncccccseccccscescnsbissssensennnsenininnnnnnnnnnn 28

eee

TABLE OF AUTHORITIES

Cases: Page(s)

Alameda County Training & Employment Bad. »v.

Donovan, 743 F.2d 1267 (9th Cir. 1984) ........ 7

American Dredging Co. v. Miller, 114 8. Ct. 981

ITT Ta iaicetnsnriadnnenddencencsasecesecczccccees 23

American Trucking Ass'n v. United States, 344 U.S.

TT 13,14

Arthur v. Unkart, 96 U.S. 118 (1877) ................... 13

Artz v. A&H Coal Co., 16 BLR 3-192 (1992) ........ 26

Ass'n of Data Processing Service Organizations, Inc.

v. Board of Governors of the Federal Reserve

System, 745 F.2d 677 (D.C. Cir. 1984) .......... 21

Avondale Shipyards, Inc. v. Vinson, 623 F.2d 1117

Toc crcrrencnenensenesesesccsccneseceees 24

Bauer v. Clark, 161 F.2d 397 (7th Cir.), cert. denied,

TIE | snes ecccnetenasnnnsencuanseneovecoees 10

Beal vw. Director, OWCP, 15 BLR 3-297 (1991) ..... 26

Bell Heli Int'l, Ine. v. Jacobs, 746 F.2d 1342

cere 24

Bos Lines, Inc. v. CIR, 354 F.2d 830 (8th Cir.

inion eteennncensnssnccsuntacsocococcoes 10

Bosma v. United States Dep't of Agriculture, 754

DT TL MUD cosccsscccscccessscccccoscccesecs 6

Brosnan v. Brosnan, 263 U.S. 345 (1923) ............. a)

Brownell v. Tom We Shung, 352 U.S. 180 (1956) . 21

Cantrell v. Wallick, 117 U.S. 689 (1886) ............... y

Central Vermont R. Co. v. White, 238 U.S. 507

EEE 23

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

Council, Inc., 467 U.S. 837 (1984) .................. 17

CIR v. Bain Peanut Co., 134 F.2d 853 (5th Cir.

ITT a cceeccticubnennesenntesscsscccsecscsesers 23

CIR v. Southern Bell Tel. & Tel. Co., 102 F.2d 397

EE CE 10

iV

Table of Authorities Continued

Page

Cities Service Oil Co. v. Dunlep, 308 U.S. 208

TIED. cancnindaslenestentennnnbecsnenpeedtensnimmmenmminseenneammeventn 23

Commercial Molasses Corp. v. New York Tank Barge

Corp., 314 U.S. 104 (1941) .......cccccccssserreeesees 9

Commonwealth of Puerto Rico v. Federal Maritime

Commission, 468 F.2d 872 (D.C. Cir. 1972) ... 7

Dept. of Water & Power v. Anderson, 95 F.2d 577

(9th Cir.), cert. denied, 305 U.S. 607 (1938) .. 10

Director, OWCP v. Peabody Coal Co., 554 F.2d 310

een 22

Environmental Defense Fund, Inc. v. EPA, 548 F.2d

998 (1976), cert. denied, 431 U.S. 925

GET candineneneessenseemsenntntiieimannnnessnnnntnesnnntnnintes 6-8,13-18

Evosevich v. Consolidation Coal Co., 789 F.2d 1021

alien raring 24

Freeman United Coal Mining Co. v. OWCP, 988

F.2d 706 (7th Cir. 1993), petn. for cert. pend-

UN, TE GI dcccccncectesenncentenenstnsmnssnsnststnunsesece 6

Gasperetti v. Director, OWCP, 16 BLR 3-956

EIEIEED cnnencitensiennnsenanninnmemmnaninencesiemmengnanennaneneninn 26

Ginn v. Dolan, 90 N.E. 141 (Ohio 1909) ............... 13,19

Griffiths v. B-D Mining Co., 16 BLR 3-673

TIED iceceincitsinsbiinteriiadiipiiiengnieptadineidaeneisieneennpinneeenes 26

Hazardous Waste Treatment Council v. EPA, 886

F.2d 335 (D.C. Cir. 1989), cert. denied, 498

5 EF eae 6

Kennedy v. Shannon Pocahontas Mining Co., 16

Ee GE CED énreetteenenteninemennen 26

Kerner v. Flemming, 283 F.2d 916 (2d Cir.

EEUIEED cacnsencenmansusenessesensvensneneessnnnsnneneenenennsenness 10,14,15

Kintzel v. Kintzel Coal Co., 16 BLR 3-841

EEEDEIEED cncscncnceusenssemnnssuseninemnieseueninenennedimenssmnansese 26

Lappinen v. Union Ore Co., 29 N.W.2d 8 (Minn.

DEED . cunavererieencibiemienenmmenanieiediaieiniinee 25

Maine v. Unifed States Dep’t of Labor, 669 F.2d

ff 7 a 7

Table of Authorities Continued

Page

McGlone v. Maiden Mining, Inc., 16 BLR 3-717

GEE ccnsesnamennssusenenscenmassststnepantitiineniecnenines 26

Medina v. California, 112 S. Ct. 2572 (1992) ....... 25

Merritt v. United States, 960 F.2d 15 (2d Cir.

GEE conmusernsnsnsnnteiectennmantebapnenpiatmanstetnemssecoen 6

Miller v. Leonard, 588 So.2d 79 (La. 1991) .......... 26

Mills v. Plastics Universal Corp., 15 BLR 3-838

SEED ‘sutnreussnaniencnenmmnniconansantenimenemeneinnmnmeatin 26

Morales v. Trans World Airlines, Inc., 112 S. Ct.

SEEEEE CUTE ‘chitinstnseliisiasvocennimuntiencndnecmanencieaiiialiniae 8

Morrison-Knudsen Constr. Co. v. Director, OWCP,

RR ee 28

Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274

ITED sanidintreninipiniagaminanicnnenniiiiianaianaiitniaaiiainabiaiin 5

Nickles v. Tackett & Manning Coal Co., 14 BLR 3-

Ey CHIT -erinecilsinenniiionibininatinsdiniinnenedmmnmsnuniiees 26

Nikitiuk v. Pishtey, 219 A.2d 225 (Conn. 1966) ... 13

NLRB ». Atlanta Coca-Cola Bottling Co., 293 F.2d

ff 14

NLRB vv. gag Management Corp., 462

as CEP CIE cnccenmncnemennnsencinmesieenpeneee 2,4-8,13

Old Ben Coal Corp. v. Interior Bd. of Mine Oper-

ations A , 523 F.2d 25 (7th Cir. 1975) .. 7

Pacific Portland Cement Co. v. Food Mach. & Chem.

Corp., 178 F.2d 541 (9th Cir. 1950) ............... 13

People v. Bilyew, 383 N.E.2d 212 (Ill. 1978) ......... 25

Perrin v. United States, 444 U.S. 37 (1979) ......... x

Poff v. Westmoreland Coal Co., 16 BLR 3-53

SEED clisiaeenitnenenipemaedeinnminietnemmmmetens 26

Preston v. Keith, 584 A.2d 439 (Conn. 1991) ....... 26

Price Waterhouse v. Hopkins, 490 U.S. 228

STEED annenensinssannensinicaneenmiemnemennnmenete 5

Pupo v. State Coal Co., 16 BLR 3-685 (1992) ....... 26

Radio Corp. of America v. Radio Engineering Lab-

oratories, Inc., 293 U.S. 1 (1934) ................... 9

ry

Table of Authorities Continued

Page

Reliance Life Ins. Co. v. Bu , 112 F.2d 234 (8th

Cir.), cert. denied, 311 U.S. 699 (1940) .......... 10

R. Gsell & Co., Inc. v. CIR, 294 F.2d 321 (2d Cir.

STE scidcicbeounibitsnscinneiaiiaiep ile lhaiaiescainiaiiaiaialiniataaiatiaaeanans 10

Richardson v. Perales, 402 U.S. 389 (1971) .......... 24

Rusk v. Cort, 369 U.S. 367 (1962) ................:0000000 21

Sanson v. Director, OWCP, 16 BLR 3-183

TTD corn ttetinesitnsiasiainariiesiigeeiaemaiemien ipiaaiapeesiataapematmsessasatin 26

Shaff v. U.S. Steel Mining Co., 16 BLR 3-612

I inchsiahaneliiiaaatatiiiaietitarilatdiiacecaiatlicietedceeiabia anita 26

Shaughnessy v. Pedreiro, 349 U.S. 48 (1955) ........ 21

Skukan v. Consolidation Coal Co., 993 F.2d 1228

4 Cir. 1993), petn. for cert. pending, No. 93-

sesibansipeensennmereemenensnenmeppemminnpeensnsenene 6

Slone v. Wolf Creek Collieries, 15 BLR 3-430

STIITTIID sessietaisaiatninstaaiiaahcinatteeeasenibunentcinesdaeabiaeemensitatieeriateneen 26

Smith v. Hill, 122 N.E. 310 (Mass. 1919), aff'd, 260

ee en oeeeen 13

Smith v. Peabody Coal Co., 16 BLR 3-622 (1992) . 26

Smith v. United States, 113 S. Ct. 2050 (1998) .... 8

Southern Stevedoring Co., Inc. v. Voris, 190 F.2d

ee 24

Steadman v. SEC, 450 U.S. 91 (1981) ..........000000... 14

Stills v. Pyro Mining Co., 14 BLR 3-834 (1991) ... 26

St. Mary’s Honor Center v. Hicks, 113 S. Ct. 2742

GEE) coceasussscscessensesessssssessncsnssesenmnensenennsensnnsasees 19

Sutherland v. Clinchfield Coal Co., 14 BLR 3-862

GEE cssinnesscsescesneccunesussuscsensccsnsntneseresssmnesentennse 26

Tampa Ship ir & Dock Co., Ine. v. Di-

rector, OWCP, 535 F.2d 936 (5th Cir. 1976) . 24

Toledano v. CIR, 362 F.2d 243 (5th Cir. 1966) ..... 10

United States v. All Right, Title and Interest in

Real Known as 785 St. Nicholas Ave.,

983 F.2d (2d Cir.), cert. denied, 113 S. Ct.

PE GEE cteatantenninsnnninnenenmnnisnntcticanedtinaseies 10

- 6 ee el ae

vii

Table of Authorities Continued

Page

United States v. DiGilio, 5388 F.2d 972 (3d Cir.

1976), cert. denied, 429 U.S. 1038 (1977) ....... 25

United States v. Land, Property Recorded in Name

of Neff, 960 F.2d 561 (5th Cir. 1992) ............. 10

United States v. Smith, 215 F.2d 217 (6th Cir.

TISTEED ‘ssnntnnsntiniensienmnasiaiaeaniindubediaiiniaiaeanbeienemnmmenes 10

United States v. Springer, 491 F.2d 239 (9th Cir.),

cert. denied, 419 U.S. 834 (1974) .............000 14

U.S. Industries/Federal Sheet Metal, Inc. v. Direc-

tor, OWCP, 455 U.S. 608 (1982) .................. 24

U.S. Pipe & Foundry Co. v. Webb, 595 F.2d 264

SEE EEG GHEED cpcnnneccnnmninvecebeustintenniensennesesnenaenes 22

Willinsky v. Director, OWCP, 16 BLR 3-536

TTI ‘cnsiniddeteuptpaiesiuneepmnnndnnenmienniteeneeneee 26

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

STD -cadeidndiiattiiaddieiataamieeimenaaiebnmenenmndenienneneneenen 11

Statutes and Regulations:

Administrative Procedure Act:

OE 23

iy MIE: TIT cnicishdeieiiusinininanpiniemmemnenbeneeins passim

SO re eee 3,21

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

CIEE sssenieniatesidaienseniidittiiarenectlinceninneteeminensininieitenenenn: passim

kf EE ere 4,20-22

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et

GI, cennsennsnnsssnerensnnsacsncnsnnensescsnsesecnemsenassnsesscacenees 19

Communications Act of 1934:

ft, Ee 11

fen 11

Internal Revenue Code:

Be ts tn UT ceniitietrnneesecnnmnennenemnenemsenmnenmnnes 10

EC 10

ere 10

viii

Table of Authorities Continued

Page

Longshore and Harbor Workers’ Compensation Act,

SB UBC. 6B GOL, 66 GOS cccccscccccccccccccccccscccccccsccceee passim

ya 4,23

een 22-24

Social Security Act:

SD Tis BG cnncecececnsnescnznsennneenessencwnenece 15

BD leis 2b GED ‘pecesesennesttocscsenesecssemmeneems 15

BD Tes © BD cvocosereccsccccsccvescsssccsccesescncsess 10

BE WG. © BODE caccceececcececesescosesscsvscesossesescesoscoces 10

Se 10

8 8 ee 23

eS en 20-22

Other Authorities:

Attorney General’s Manual on the Administrative

oo eee 16,27

Black's Law Dictionary (6th ed. 1990) «00... 8,9

K. Davis, Administrative Law Treatise (2d ed.

a qgvesescecenesssonsseesenesseeseebsoonssoosneoeceee 7

L.P. King, Collier on Bankruptcy (15th ed.

TEE) cxccscnscsscensccnvenasesnensnessneneenensnsscossnesetaceonsones 10

A. Larson, The Law of Workmen’s Compensation

TEENY cncenenssedeneennaverengeansansiunenenianeitnensnnsunndeanine 24

A. Larson, The Law of Workmen’s Compensation

SEEITIEED -ecisennidiheniesainentenseiiesanaieiininsienicensaniianeinsedeeiaenes 12,24,25

Legislative History of the Administrative Procedure

Act, 8S. Doc. 248, 79th Cong., 2d Sess.

EREPGIED ccoseunscnsaseosessnessaemmnenapesnsennandennenesssessesnesces 15-18

J. Stein, et al., Administrative Law (1993) ........... 7

J.W. Strong, McCormick on Evidence (4th ed.

DIED ccccececevecsnnsseenncascsssensensnnencnssnnenesnesennenazensces 11

9A Uniform Laws Annotated, Uniform Rule of Evi-

DL ee )

Wigmore on Evidence (Chadbourn rev. 1981) ..... 11,12,23

= ee Se Oe ee,

INTEREST OF AMICUS CURIAE

The American Insurance Association (‘‘AIA’’) is a na-

tional trade association, with headquarters in Washington,

D.C., representing more than 250 property and casualty

insurance companies in the United States writing a major

portion of the nation’s property and casualty insurance.

AIA member companies are affiliated with thousands of

independent insurance agents nationwide. They employ

over 145,000 people, and in 1992 contributed over $2 bil-

lion in state taxes and fees (including payroll taxes) to

state governments. AIA members also write coverage un-

der the Black Lung Benefits Act (‘“‘BLBA’’) and the Long-

shore and Harbor Workers’ Compensation Act

(““LHWCA”). AIA’s purposes include promoting the eco-

nomic, legislative, and public standing of its members; pro-

viding a forum for discussion of policy problems of common

concern to members; and apprising members of judicial,

regulatory, and legislative developments.

In 1992, AIA members wrote almost $13 billion in work-

ers’ compensation premiums (including premiums for BLBA

and LHWCA coverage), constituting a substantial portion

nationally of the private market for workers’ compensation

insurance. AIA members write some BLBA and LHWCA

business in the voluntary market and also are subject to

liability under the BLBA and LHWCA through individual

state-assigned risk pools, the liabilities of which are rein-

sured by insurance carriers, including AIA members,

through the National Workers’ Compensation Reinsurance

Pool.

AIA members have a strong interest in the financial

health and stability of all workers’ compensation programs,

including the BLBA and LHWCA. The AIA files this brief

amicus curiae because of its interest in the stability of

federal workers’ compensation programs and the concom-

itant concern about potential new liabilities under those

programs should the Court sustain the Department of La-

bor’s position. The Department’s “true doubt’’ rule is a

departure from the long-established principle in state work-

ers’ compensation programs that a claimant is required to

prove entitlement to benefits by a preponderance of the

evidence. The AIA is concerned that affirmation of the

true doubt rule might influence state workers’ compen-

sation systems as well.*

SUMMARY OF ARGUMENT

The Department of Labor’s “‘true doubt’’ rule stands on

its head the most basic principle of workers’ compensation:

that the claimant must demonstrate disability and entitle-

ment to benefits. The Black Lung Benefits Act (““BLBA’’),

30 U.S.C. §§ 901, et seg., and the Longshore and Harbor

Workers’ Compensation Act (“LHWCA’’), 33 U.S.C.

§§ 901, et seg., are workers’ compensation statutes that,

like all such statutes, establish mechanisms for the fair

and efficient resolution of employee disability claims. The

BLBA and LHWCA incorporate a series of evidentiary

presumptions in favor of recovery, but do not, either im-

plicitly or explicitly, absolve the claimant of the burden of

establishing the facts requisite to invoke the presumptions.

The true doubt rule does that. The rule shifts to the em-

ployer in BLBA and LHWCA cases the burden of proving

by a preponderance of the evidence that a claimant is not

entitled to benefits.

The true doubt rules violates section 7(c) of the Ad-

ministrative Procedure Act (““APA’’), 5 U.S.C. § 556(d),

which expressly assigns the burden of proof, including the

burden of persuasion, to the claimants in these cases. In

this regard, the Court should overrule the statement in a

footnote in NLRB v. Transportation Management Corp.,

462 U.S. 393 (1983), that section 7(c) assigns only the

burden of production. The Court there relied on only one

source, a court of appeals decision that misread the lan-

guage and legislative history of the APA.

APA section 7(c) assigns the “burden of proof’ to the

proponent of a rule or order. The ordinary and most com-

“Counsel to the parties have consented to the filing of this brief.

Letters of consent have been filed with the Clerk.

« 1 ponce M bat Gl

mon meaning of “‘burden of proof’ is the burden of per-

suading the factfinder. The courts long have used “burden

of proof’ in exactly this way, and Congress repeatedly

has used the phrase to mean burden of persuasion in other

statutes. APA section 7(c) is no exception. This under-

standing of “burden of proof’ in section 7(c) is consistent

also with the traditional principle that the proponent in

any proceeding who seeks to change the status quo has

the burden of persuasion.

The legislative history of section 7(c) strongly supports

this reading. Congress substituted “‘burden of proof” in

section 7(c) for the phrase “burden of proceeding’”’ in a

predecessor bill, and explained that the final language rep-

resents the “standard rule.’’ Other legislative history de-

scribes a system fully consistent with the traditional

burdens: The proponent of a rule or order has the burden

of establishing a prima facie case. The burden of produc-

tion then shifts to the opponent to rebut the presumption,

but the ultimate burden of persuasion remains with the

proponent.

APA section 7(c) is fully applicable to the present cases.

Petitioner argues that a BLBA regulation discussing “‘rea-

sonable doubt”’ supersedes APA section 7(c), but that in-

coherent regulation falls far short of the express statement

of supersedure required by APA section 12, 5 U.S.C. § 559.

Petitioner argues also that a provision of the LHWCA

suspending technical rules of evidence and procedure

supersedes APA section 7(c). Petitioner ignores other lan-

guage in the LHWCA explaining that nothing in that stat-

ute should be read to supersede provisions of the APA.

Moreover, the burden of proof is not a technical rule of

evidence or procedure, but a rule of substantive law nec-

essary to the fair adjudication of factual disputes.

The true doubt rule is fundamentally unfair. It under-

mines the correct resolution of administrative claims by

giving administrative law judges a license to ignore their

responsibilities and to award benefits irrespective of the

merits of the claim.

ARGUMENT

I

SECTION 7(C) OF THE APA ASSIGNS THE BURDEN OF

PERSUASION TO THE CLAIMANT IN BLBA AND

LHWCA CASES

Section 7(c) of the APA declares that “‘[e]xcept as oth-

erwise provided by statute, the proponent of a rule or

order has the burden of proof.”’ Both the BLBA and

LHWCA incorporate this and other APA provisions ex

pressly. 30 U.S.C. § 932(a); 33 U.S.C. § 919d). Accord-

ingly, the “proponent” in a benefits hearing under the

BLBA or LHWCA-—the claimant who seeks benefits—has

the burden of proof.' The true doubt rule violates section

7(c) because it assigns the burden of proof to the employer

rather than to the claimant; the rule requires that the

employer ultimately must persuade the factfinder that the

claimant is not entitled to benefits.

A. The Court Should Overrule Its Statement Regarding

APA Section 7(c) in NLRB v. Transportation Man-

agement Corp., 462 U.S. 393 (1983).

The AIA concedes that the foregoing argument is in-

consistent with a footnote in NLRB v. Transportation

Management Corp., 462 U.S. 393 (1983), in which the Court

declared that section 7(c) of the APA ‘determines only

‘Respondent Santoro purports to find ambiguity in the meaning of

“proponent” in workers’ compensation proceedings under the BLBA

and LHWCA because the administrative law judge (““ALJ’’) must de-

termine “the rights of the parties” and because it is the employer who

sometimes requests a formal hearing. Brief of Respondent Santoro at

8 & n.3. There is no ambiguity. That both parties have rights, and

that either party may ask for a formal hearing, is irrelevant to the

claim being adjudicated before the ALJ. The claimant, by definition,

seeks an order granting benefits. The employer who contests benefits

seeks only to maintain the status quo. The claimant in a benefits ad-

judication plainly is the “proponent” under the APA, a pcint petitioner

does not contest.

ee

the burden of going forward, not the burden of persua-

sion.” Jd., at 404 n.7.2 The AIA believes that this state-

ment is an incorrect assertion of the law. APA section

7(c) assigns to the proponent of a rule or order the burden

of persuasion. The Court should overrule the statement to

the contrary in Transportation Management.

Voiding this one-sentence statement in a footnote in

Transportation Management will have no effect on the

ultimate holding of that case. Transportation Management

involved a mixed motive situation. The Court upheld a

National Labor Relations Board (‘“‘NLRB”’) rule that shifted

the burden of persuasion to the employer once the NLRB

General Counsel had demonstrated by a preponderance of

evidence that an employment decision had been motivated

by antiunion animus. The employer then could avoid lia-

bility by proving that it would have made the same de-

cision in the absence of antiunion animus.

The Court explained that the General Counsel meets its

burden under the National Labor Relations Act by estab-

lishing the elements of an unfair labor practice. Shifting

the burden to the employer to prove a mixed motive de-

fense does not violate the statutory requirement that the

General Counsel prove its case. Jd., at 401-402. The Court

has approved similar burden-shifting regimes in other

mixed motive cases. See Mt. Healthy City Bd. of Ed. ».

Doyle, 429 U.S. 274 (1977); Price Waterhouse v. Hopkins,

490 U.S. 228 (1989). In each instance, the plaintiff or

proponent of the action retains the burden of persuasion

on the fundamental issue of liability; the burden of per-

* Respondent Greenwich Collieries argues that the statutory criteria

for benefits under the BLBA and LHWCA must be established by a

preponderance of the evidence, regardless of which party has the bur-

den of persuasion. The true doubt rule, which allows the ALJ to find

that the claimant is entitled to benefits in the absence of a prepon-

derance of the evidence, therefore violates section 7(c). The AIA fully

agrees with Greenwich Collieries’ argument, but believes that the true

doubt rule violates section 7(c) also because that provision of the APA

places the burden of persuasion on the claimant.

suasion shifts only after such proof is made, and only on

the mixed motive issue.

Respondent in Transportation Management argued that

section 7(c) of the APA requires the General Counsel to

retain the burden of persuasion at all times. The Court

rejected that argument by asserting that 7(c) does not

assign the burden of persuasion. 462 U.S., at 404 n.7. The

Court could have explained instead that in mixed motive

cases the proponent meets its burden of persuasion under

section 7(c) by proving that the defendant’s behavior

stemmed from an improper motive.

In the cases presently before the Court, the burden on

claimants is to prove entitlement to benefits. The true

doubt rule violates section 7(c) because it shifts the burden

of persuasion to the employer when the evidence is in

equipoise, before the claimant has proven anything.

The Transportation Management Court cited only one

source in support of its statement regarding section 7(c):

the D.C. Circuit’s decision in Environmental Defense Fund,

Inc. v. EPA, 548 F.2d 998 (1976), cert. denied, 431 U.S.

925 (1977). That court of appeals opinion is the only ju-

dicial decision to have analyzed the problem in any detail.

Petitioner and respondent Santoro cite several court of

appeals decisions in support of the allegedly “‘well estab-

lished’ rule that section 7(c) assigns only the burden of

production, but all of those cases, save one, relied either

on Transportation Management or Environmental Defense

Fund (“EDF”), or on a decision that ultimately relied on

EDF. Even the commentators petitioner cites rely on EDF’

* See Skukan v. Consolidation Coal Co., 993 F.2d 1228, 1237-1238

(6th Cir. 1993) (relying on Transportation Management), petn. for cert.

pending, No. 93-964 ; Freeman United Coal Mining Co. v. OWCP, 988

F.2d 706, 711 (7th Cir. 1993) (same), petn. for cert. pending, No. 93-

935; Dazzio v. FDIC, 970 F.2d 71, 77 (5th Cir. 1992) (same; burden

of persuasion not at issue); Merritt v. United States, 960 F.2d 15, 18

(2d Cir. 1992) (same; burden of persuasion not at issue); Hazardous

Waste Treatment Council v. EPA, 886 F.2d 335, 366 (D.C. Cir. 1989)

(relying on EDF), cert. denied, 498 U.S. 998 (1990); Bosma v. United

ee ee ee

and Transportation Management.‘ Only Old Ben Coal Corp.

v. Interior Bd. of Mine Operations Appeals, 523 F.2d 25,

39-40 (7th Cir. 1975), decided before EDF, supplied its

own analysis, but that court relied on the same misreading

. — history as the court in EDF. See infra at

States Dep't of Agriculture, 754 F.2d 804, 810 (9th Cir. 1984) (relying

on Transportation Management), Alameda County Training & Em-

ployment Bd. v. Donovan, 743 F.2d 1267, 1269 (9th Cir. 1984) (relying

on Maine); Maine v. United States Dep't of Labor, 669 F.2d 827, 829

(1st Cir. 1982) (relying on EDF).

‘See 4 J. Stein, et al., Administrative Law § 24.02, at 24-21 n3

( 1993) (relying on EDF and Transportation Management), 3 K. Davis,

—_ Law Treatise § 16.9, at 257-258 (2d ed. 1980) (relying

on '

* Commonwealth of Puerto Rico v. Federal Maritime Commission, 468

F.2d 872 (D.C. Cir. 1972), cited by Respondent Santoro, is notable

because that pre-EDF D.C. Circuit case actually supports AIA’s position

here. The Puerto Rico court asserted that the rule in APA section 7(e)

is subject to ‘‘reasonable construction and limitations,”’ and then ex-

plained the construction of the rule in the ordinary case: “the rule

requiring the proponent of an order to sustain the burden of its jus-

—— rests on pe policy requiring a person seeking a change from

es quo to take on the burden of justifying the change.”

F.2d, at 881. In BLBA and LHWCA benelit con oe claimant a.

a change from the status quo, and therefore bears the burden of jus-

tifying the change. In other cases, the burden may be elsewhere because

another party is properly the “proponent.”

Much the same point is made in 4 J. Stein, et al., Administrative

Law § 24.02 (1993), upon which petitioner relies. The commentators

there explain that the difficulty in assigning the burden of persuasion

under the APA stems from the problem of determining the “propo-

nent.” In many cases, courts have held that a party holding a gov-

ernment-approved claim or license is the ‘proponent’ even when the

government initiates proceedings to challenge that claim or license. /d.,

at 24-25 - 24-27. The determination that the party in receipt of a benefit

remains the proponent is another explanation for decisions like EDF.

which involved the attempt to suspend certain pesticide registrations.

The holder of the benefit in that case was the chemical company, upon

whom the D.C. Circuit placed the burden of persuasion. In the present

cases, the claimants seek BLBA and LHWCA benefits and are therefore

the “proponents.” See infra n.6.

EDF is plainly wrong on this issue.* The D.C. Circuit

reached its result in that case by misreading the language

and legislative history of the APA, as well as earlier fed-

eral court decisions that had reached the opposite result.’

The better reading, consistent with the ordinary meaning

of the language in the APA and its legislative history, is

that section 7(c) assigns the burden of persuasion.

B. The Ordinary Meaning of APA Section 7(c), in Line

with Traditional Practice, Is That ‘‘Burden of Proof”’

Places on the Proponent the Burden of Persuasion.

It is a cornerstone of statutory construction that un-

defined words in a statute must be given their ordinary

or common meaning. Smith v. United States, 113 S. Ct.

2050, 2054 (1993); Morales v. Trans World Airlines, Inc.,

112 S. Ct. 2031, 2036 (1992); Perrin v. United States, 444

U.S. 37, 42 (1979). The ordinary and most common mean-

ing of the phrase “burden of proof’ is the burden of

persuading the factfinder by a particular quantum of proof.

Although some courts and commentators have used “‘bur-

den of proof’? to mean only the burden of producing evi-

dence, the far more common and natural reading of that

phrase is the burden of persuasion, which generally in-

cludes the initial burden of producing evidence as well.

Thus, Black’s Law Dictionary begins its definition of

“burden of proof’ with the common understanding, and

then explains its two components:

[T]he necessity or duty of affirmatively proving a fact

or facts in dispute on an issue raised between the

* As with Transportation Management, rejection of the EDF reading

of the burden of proof under section 7(c) will not undermine the holding

of that case. The D.C. Circuit could have reached the same result by

holding, as have other courts, that the ‘“proponent’’ in a proceeding

challenging the validity of a government license or registration is the

holder of the government benefit. See supra n.5. Moreover, the D.C.

Circuit’s discussion of APA section 7(c) in EDF ultimately was dictum,

as the court concluded that the APA did not apply to the suspension

hearings at issue. 548 F.2d, at 1015.

’ See infra at 13-18.

parties in a cause. The obligation of a party to es-

tablish by evidence a requisite degree of belief con-

cerning a fact in the mind of the trier of fact or the

court.

Burden of proof is a term which describes two dif-

ferent concepts; first, the “burden of persuasion”,

which under the traditional view never shifts from

one party to the other at any stage of the proceeding,

and the second, the “burden of going forward with

the evidence’, which may shift back and forth be-

tween the parties as the trial progresses.

Black’s Law Dictionary 196 (6th ed. 1990). See also 9A

Uniform Laws Annotated, Uniform Rule of Evidence 1(4)

(1965) (“ “Burden of proof’ means the obligation of a party

to meet the requirements of a rule of law that the fact

be proved either by a preponderance of the evidence or

by clear and convincing evidence or beyond a reasonable

doubt, as the case may be. Burden of proof is synonymous

with ‘burden of persuasion.’ ”’).

Consistent with this ordinary understanding, this Court

regularly used “burden of proof’’ to mean burden of per-

suasion in the years prior to the passage of the APA.

E.g., Commercial Molasses Corp. v. New York Tank Barge

Corp., 314 U.S. 104, 108-110 (1941) (in admiralty suit be-

tween shipowner and shipper, “burden of proof’’ on shi-

powner means that “the shipper must prevail if, upon the

whole evidence, it remains doubtful whether the loss is

within the exception’); Radio Corp. of America v. Radio

Engineering Laboratories, Inc., 293 U.S. 1, 7, 8 (1934)

(one asserting prior invention defense against presump-

tively valid patent has “burden of proof” to make its case

beyond a reasonable doubt); Brosnan v. Brosnan, 263 U.S.

345, 347-349 (1923) (establishment of prima facie case by

party with “burden of proof” “did not relieve him from

the ultimate burden of persuasion’’); Cantrell v. Wallick,

117 U.S. 689, 695-696 (1886) (same as Radio Corp.).

Other federal courts have recognized that “burden of

proof” in its “primary sense” means the burden of per-

10

suasion. E.g., United States v. Smith, 215 F.2d 217, 219

(6th Cir. 1954); Bawer v. Clark, 161 F.2d 397, 400 (7th

Cir.), cert. denied, 332 U.S. 839 (1947); Reliance Life Ins.

Co. v. Burgess, 112 F.2d 234, 237-238 (8th Cir.), cert. de-

nied, 311 U.S. 699 (1940). The Ninth Circuit in 1938 ex-

plained that the “proper sense” of the phrase “burden of

proof” is “the burden of proving ‘ne issue in controversy

to the degree required therein.” Dept. of Water & Power

v. Anderson, 95 F.2d 577, 583, cert. denied, 305 U.S. 607

(1938).

Congress has used the phrase “burden of proof”’ in stat-

utes other than the APA, and federal courts have had

little difficulty finding that these statutes assign the bur-

den of persuasion. The Internal Revenue Code, for ex-

ample, uses “burden of proof” in several sections. See,

eg., 26 U.S.C. §534; 26 U.S.C. §6902(a); 26 U.S.C.

§ 7454(a). In each instance, federal courts assign to the

statutorily-designated party the burden of persuasion. E.g.,

R. Gsell & Co., Inc. v. CIR, 294 F.2d 321, 325-326 (2d

Cir. 1961); Bos Lines, Inc. v. CIR, 354 F.2d 830, 836 (8th

Cir. 1965); CIR v. Southern Bell Tel. & Tel. Co., 102 F.2d

397, 401-402 (6th Cir. 1930); Toledano v. CIR, 362 F.2d

243, 247 (5th Cir. 1966). See also Kerner v. Flemming,

283 F.2d 916, 921 n.8 (2d Cir. 1960) (Friendly, J.) (noting

that Congress had spoken “clearly” in these Internal Rev-

enue Code provisions in assigning the burden of persua-

sion). Other statutes are to the same effect.*

*E.g., 19 U.S.C. § 1615 (“burden of proof” in forfeiture proceedings

under Tariff Act of 1930); United States v. All Right, Title and Interest

in Real Property Known as 785 St. Nicholas Ave., 983 F.2d 396, 403

(2d Cir.) (§ 1615 assigns “burden of proof ... to demonstrate by a

preponderance of the evidence’’), cert. denied, 113 S. Ct. 2349 (1993),

United States v. Land, Property Recorded in Name of Neff, 960 F.2d

561, 563 (5th Cir. 1992) (same); 11 U.S.C. § 362(g) (“burden of proof”

in hearing concerning relief from automatic stay in bankruptcy); 2 L.P.

King, Collier on Bankruptcy q 362.11, at 362-82 (15th ed. 1990) (§ 362(g)

assigns the “burden of proof (risk of nonpersuasion)’’). Compare also

8 U.S.C. § 1160(>X3\BXi) (alien has “burden of proving by a prepon-

derance of the evidence”) with 8 U.S.C. §§ 1160(bX3\BV\ii) & (iii) (re-

1]

That Congress ordinarily uses “burden of proof’ to mean

more than the burden of production is evident as well from

the Communications Act of 1934. That statute twice ex-

plains that a party has both “the burden of proceeding

with the introduction of evidence and the burden of proof.”

47 U.S.C. §§ 30%e) & 312(d). The contrast between these

> — is potent evidence of the meaning of “burden

of proof.”’

pe doen. yyy proof” in APA section 7(c)

is info not only by ordinary meaning of that

phrase, but from the larger statutory context. Section 7(c)

assigns the burden of proof to the “proponent” of a rule

or order, that is, to the party seeking to change the status

quo. The traditional rule is that a party seeking to change

the status quo bears the burden of persuasion. In common

parlance, the plaintiff bears the burden of proof. See 2

J.W. Strong, McCormick on Evidence 428 (4th ed. 1992)

(‘The burdens of pleading and proof with regard to most

facts have been and should be assigned to the plaintiff

who generally seeks to change the present state of affairs

and who therefore naturally should be expected to bear

the risk of failure of proof or persuasion.”’); 9A Wigmore

on Evidence § 2485, at 286 (Chadbourn rev. 1981) (‘in

practical affairs generally, the burden of proof (in the sense

of risk of nonpersuasion) signifies that upon a person de-

siring action from M will fall the penalty of M’s nonaction

unless M can be persuaded .* . as to the truth of the

propositions prerequisite to his action’’).

ferring to “burden of proof” in clause (i)).

Petitioners in Wilson v. Omaha Indian Tribe, 442 U.S. 653, 669

(1979), argued that the phrase “burden of proof” in 25 U.S.C. § 194

assigns only the burden of production. The Court responded that the

phrase ‘‘may” be ambiguous, but held, in light of the “evident purpose”’

of the statute and other statutory , that the statute assigned

both the burden of persuasion and the burden of producing evidence.

12

One important example of this rule appears in state

workers’ compensation schemes, the analogs of the BLBA

and LHWCA, which uniformly assign the burden of per-

suasion to the proponent of the benefit ‘award. The leading

authority on workers’ compensation describes the “‘basic

rule” that the burden of proof is on the claimant; even

where there are presumptions in favor of an award of

benefits, as in the BLBA and LHWCA, the claimant re-

tains the burden of persuasion on the facts necessary to

invoke those presumptions:

The burden of proving his case beyond speculation

and conjecture is on the claimant. This means that

claimant must establish the work-connection of his

injuries, the causal relationship between a work-con-

nected injury and his disability, the extent of his dis-

ability, and all the other facets of his claim by a

preponderance of the evidence; he cannot prevail if

the evidence is merely evenly balanced. Although he

is aided, in some jurisdictions, by presumptions that

help to supply the minimum evidence necessary to

support an award, he must first establish the facts

required to invoke the presumption.

3 A. Larson, The Law of Workmen's Compensation

§ 80.33(a), at 15-864 - 15-871 (1993) (citing cases from nu-

merous jurisdictions; emphasis added).

At common law, the party seeking the affirmative bears

the burden of proof (i.e., persuasion) on that issue.’ The

burden of production might shift during the course of the

13

adjudication, but the ultimate burden of persuasion re-

mains with the party asserting the affirmative:

The weight of the evidence, or, as it is otherwise

expressed, the preponderance of the evidence, may

vary from side to side as a triai progresses; but the

burden, which rests upon the plaintiff to establish the

material averments of his cause of action by the pre-

ponderance of all of the evidence, never shifts. The

party who maintains the affirmative of an issue car-

ries the burden of proof through the whole case, al-

though he may be aided by such a rebuttable

presumption of law, or such facts as would prima facie

support this contention. His opponent need do no more

than counterbalance the presumption or prima facie

case.

Ginn v. Dolan, 90 N.E. 141, 142 (Ohio 1909) (emphasis

added). Accord Arthur v. Unkart, 96 U.S. 118, 122 (1877)

(“The burden of proof is upon the party holding the af-

firmative of the issue. ... [T]he other party shall be pre-

sumed to be innocent until proved to be guilty.’’) (internal

quotations omitted); Pacific Portland Cement Co. v. Food

Mach. & Chem. Corp., 178 F.2d 541, 547 (9th Cir. 1950);

Smith v. Hill, 122 N.E. 310 (Mass. 1919), aff'd, 260 U.S.

592 (1923); Nikitiuk v. Pishtey, 219 A.2d 225, 229 (Conn.

1966).

It is not surprising, in light of this established principle

and the ordinary meaning of “burden of proof,” that, prior

to EDF and Transportation Management, this Court and

other federal courts recognized that section 7(c) assigns

the burden of persuasion. In American Trucking Ass’n v.

United States, 344 U.S. 298 (1953), the Court held that

—_— n “4 was rs applicable to the administrative action

issue, but that section 7(c) placed on a

ponent the burden of persuasion: " -

Appellants . . . point to the requirement of § 7(c), that

the proponent of a rule or order shall have the bur-

den of proof”, and insist that the Commission .. . did

not satisfy this burden by preponderating evidence.

14

But even assuming that the Commission was a sta-

tutory “proponent” of the regulation and that it did

not actively introduce the requisite degree of proof in

support of its position, we think it plain that the

requirement is inapplicable to the instant proceedings.

Id., at 318-319.

Steadman v. SEC, 450 U.S. 91 (1981), is even more to

the point. The Court determined in that case that section

7(c) requires factfinding by a preponderance of the evi-

dence. In its statement of the question, the Court plainly

assumed that section 7(c) assigns the burden of persuasion.

The Court declared that it was to determine ‘‘the degree

of proof which must be adduced by the proponent of a

rule or order to carry its burden of persuasion in an ad-

ministrative proceeding.” Jd., at 95 (emphasis added). Other

federal courts reached the same conclusion about section

1c). E.g., NLRB v. Atlanta Coca-Cola Bottling Co., 293

F.2d 300, 309 & n.15 (5th Cir. 1961); United States v.

Springer, 491 F.2d 239, 242 (9th Cir.), cert. denied, 419

U.S. 834 (1974)."° Judge Friendly, in Kerner v. Flemming,

283 F.2d 916, 921-922 (2d Cir. 1960), found the matter so

plain that he assumed “We may agree that . . . under

The EDF court distinguished these decisions with the summary

assertion that the cases “appear to think of ‘burden of proof as the

burden of producing evidence.” 548 F.2d, at 1013. This is demonstrably

false. In Atlanta Coca-Cola, the Fifth Circuit recognized explicitly that

the NLRB General Counsel retains the “burden of proof” even if the

employer may have a burden of production to rebut the General

Counsel's prima facie case. 293 F.2d, at 309 n.15 (“‘Although the burden

of going forward with evidence to rebut a prima facie case rests on

the employer, the burden is not on the employer to show the absence

of discrimination; it is on the General Counsel to show its presence’’).

Springer is to the same effect. The court there explained that only

after the government has presented a prima facie case of invalidity of

a mining claim does section 7(c) place the burden of proof on the

claimant as “‘proponent”’ to establish that the claim is valid. 491 F.2d,

at 242. The claimant’s burden in such cases must be more than pro-

ducing evidence to balance the government's case, or there would have

been no need for the Ninth Circuit to hold that the claimant is the

“proponent” under section 7(c).

15

§ 7(c) of the Administrative Procedure Act, 5 U.S.C.A.

§ 1006(c), an applicant for a disability pension has the ul-

timate burden of persuasion.”

‘These cases all decided the matter correctly, consistent

with the plain language of APA section 7(c).

C. The Legislative History of APA Section 7(c) Su

ports the Understanding That “‘Burden of Proof”

Includes the Burden of Persuasion.

“Burden of proof’ was not the original

phrase Congress

used in section 7(c) of the APA. An earli

bill, H.R. 1203, provided: ae

The proponent of a rule or order shall have the burden

of proceeding except as statutes otherwise provide.

H.R. 1203 § 7(c), 79th Cong., 1st Sess. (emphasis added)

(reprinted in Legislative History of the Administrative Pro-

cedure Act (‘‘Legislative History”), S. Doc. 248, 79th Cong.,

2d Sess. 158 (1945)). Congress changed “burden of pro-

ceeding” to “burden of proof’’ before it passed the APA.

This was a transformation by design. If Congress meant

to assign only the burden of production in section 7(c), the

change from the unequivocal “burden of proceeding’ to

burden of proof,”” which ordinarily encompasses more than

merely producing evidence, would have been worse than

meaningless, it would have been counterproductive. This

statutory alteration alone is a strong signal that “burden

' The EDF court's attempt to distinguish Kerner fails as w

D.C. Circuit noted that footnote 8 of Kerner proclaims that A ta

has often spoken far mere clearly when it has desired to fix a burden

of proof. (citing statutes]"" The EDF court read this footnote as an

assertion that Kerner did not find APA section 7(c) to contain such a

clear statement. 548 F.2d, at 1014 n.5. In fact, footnote 8 of Kerner

is appended not to a citation to section 7(c), but to a citation to pro-

visions of the Social Security Act, 42 U.S.C. §§ 416(iN1) & 423(c\2),

provisions that do not contain the phrase “burden of proof.” That the

Kerner court found section 7(c) to provide a clear statement is certain

from the statutory sections Kerner listed as examples of Congress’ clear

statements: provisions of the Internal Revenue Code. discussed supra

that use the phrase “burden of proof.” .

16

of proof” in section 7(c) means something more than bur-

den of proceeding. Compare the Communications Act of

1934, quoted supra at 11.

But the legislative history contains further support. A

1945 Senate Judiciary Committee Print presents the lan-

guage of H.R. 1203, together with the text of the APA

as and explains the “shifts of language from one

provision to another.” Legislative History at 11. Regarding

section 7(c), the Committee Print explains that “The pro-

vision relating to the burden of proof is the standard rule.”

Id., at 31. In a context in which the most common meaning

of the phrase “burden of proof” included the burden of

persuasion, the traditional rule placed the burden of per-

suasion on the proponent, and Congress had changed the

from “burden of proceeding’ to “burden of

proof,” there is nothing else that the “standard rule” could

mean except that APA section 7(c) assigns the burden of

persuasion to the proponent.”

* The Attorney General reached this conclusion as well. In his state-

ment regarding the Committee Print of October 5, 1945, the Attorney

General asserted that “The first sentence [of section 7(c)] states the

customary rule that the proponent of a rule or order shall have the

burden of proof.” Legislative History at 411.

Petitioner, as well as the court in EDF, point to a later statement

in the Attorney General's Manual on the Administrative Procedure Act

(1947). The Attorney General, relying entirely on the same legislative

history the EDF court relied upon, there asserted that “There is some

indication” that “burden of proof’ was not intended in any “strict

sense” but as synonymous with the burden of going forward. /d., at

75. Petitioner implies that the Court should defer to this “interpre-

tation” of the APA from the Attorney General. Petitioner's Brief at

38 n.22.

There is nothing in the Attorney General's Manual to which the

Court can defer. The Attorney General reached no conclusion regarding

“burden of proof,” but stated only that there is “some indication” that

it refers to the burden of going forward. The next sentence of the

Manual, which begins “In either case,” evinces the Attorney General's

uncertainty. Nor is this the type of statement to which this Court owes

any deference. The Attorney General's assertion regarding the burden

of proof involved no independent policy judgment nor any special ex-

pertise; this Court is fully capable of discerning legislative history. See

17

The D.C. Circuit’s analysis in EDF is based entirely on

another reading of the legislative history. The EDF court,

like the petitioner here, relied on the following statement

from the Senate Judiciary Committee Report on the APA:

That the proponent of a rule or order has the burden

of proof means not only that the party initiating the

proceeding has the general burden of coming forward

with a prima facie case but that other parties, who

are proponents of some different result, also for that

purpose have a burden to maintain. Similarly the re-

quirement that no sanction be imposed or rule or

order be issued except upon evidence of the kind spec-

ified means that the proponents of a denial of relief

must sustain such denial by that kind of evidence.

For example, credible and credited evidence submitted

by the applicant for a license may not be ignored

except upon the requisite kind and quality of contrary

evidence. No agency is authorized to stand mute and

arbitrarily disbelieve credible evidence. Except as ap-

plicants for a license or other privilege may be re-

quired to come forward with a prima facie ing,

no agency is entitled to presume that the conduct of

any person or status of any enterprise is unlawful or

improper.

Legislative History at 208. The House Judiciary Committee

— te language, as well as this addi-

In other words, this section means that every pro-

ponent of a rule or order or the denial thereof has

the burden of coming forward with sufficient evidence

therefor; and in determining applications for licenses

or other relief any fact, conduct, or status so shown

by credible and credited evidence must be accepted

as true except as the contrary has been shown or

such evidence has been rebutted or impeached by duly

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

U.S. 837, 844 (1984), pieced

18

credited evidence or by facts officially noticed and

stated.

Legislative History at 270.

b 4 this

F.2d, at 1015. That court erred when it leapt from th

fact about a particular passage of legislative history to the

conclusion that APA section 7(c) is concerned only wi

the burden of producing evidence. That Congress intended

section 7(c) to address issues of burden of production does

not mean that section 7(c) has nothing to say about burden

of persuasion. The EDF court's extrapolation from one

piece of legislative history required it to ignore the ordi-

nary meaning of “burden of proof,” ignore historic prac-

tice, and ignore the powerful additional legislative history

indicating that “burden of proof” includes the burden of

persuasion.

tees plain] concerned with those administrative cases

in which the Samet” sought a license or other priv-

ilege from the government. In such cases, the government

would not be allowed “to stand mute and disbelieve cred-

ible evidence.” Rather, the proponent’s | ishment of

a prima facie case places the burden on the government

(or any other opponent of a rule or order) to come forward

with evidence to the contrary. If the government is unable

to rebut the prima facie case, the proponent is entitled to

prevail on the strength of the prima facie case alone; a

dence must be accepted as true” unless it has been re-

butted.

.

19

The foregoing describes the entirety of the quoted pas-

sages from the Committee Reports. Those Reports simply

do not address the issue of the ultimate burden of per-

suasion; the plain language of the statute and other leg-

islative history accomplish that. Taken together, the

7(c) describes the “standard rule” on burden of proof.

Under section 7(c), as under the traditional scheme, the

proponent has the burden of persuasion. The proponent

cient evidence to establish a prima facie case. Ultimately,

the proponent will prevail only if the preponderance of the

evidence is in its favor; the proponent must meet its bur-

den of persuasion.” See Ginn, 90 N.E., at 142, and other

cases cited supra at 13.

II

APA SECTION 7(C) IS FULLY APPLICABLE TO THESE

CASES

Petitioner argues in the alternative that APA section

7(c) does not apply to benefit claims under the BLBA and

LHWCA because certain provisiors of those statutes

supersede section 7(c). Petitioner reaches that result only

by a misreading of statutory and regulatory language.

Nothing in the BLBA or LHWCA supersedes section 7(c).

The burden of persuasion the APA assigns to proponents

is fully applicable to these cases.

“ This is, of course, precisely the system this Court recently reaf-

firmed for claims of employment discrimination under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. $§ 2000e, et seq. That statute places

the burden on the plaintiff to establish a prima facie case. The defendant

then must rebut the prima facie case, or suffer judgment in favor of

plaintiff. St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2748 &

20

| Is

A. The BLBA Regulation Petitioner Relies Upon

Grossly Insufficient To Supersede the APA.

Section of the BLBA, 30 U.S.C. § 932(a), incor-

porates i omelien of the LHWCA, including 33

U.S.C. §91%d), which in turn incorporates APA section

7(c). The incorporation in BLBA section 422(a) is _—

to an exception where “otherwise provided in this |

section or by regulations of the Secretary. Petitioner con-

tends that section 718.3(c) of the BLBA regulations, 20

C.F.R. § 718.3(c), triggers this exception and prevents ap-

plication of APA section 7(c) to BLBA adjudications.

Petitioner’s Brief at 43-45. Section 718.3(c) provides:

In enacting [the Black Lung Benefits] Act, Congress

intended that claimants be given the benefit of all

reasonable doubt as to the existence of total or partial

shall be construed and applied in that spirit and is

designed to reflect that intent. However, no claim

shall be approved unless the record considered as a

whole, in light of any applicable presumptions, pro-

vides a reasonable basis for determining that the cri-

teria for eligibility under the Act and this part have

been met.

Petitioner concedes that “Section 718.3(c) is not the

original source of the ‘true doubt’ rule,” Petitioner s Brief

at 29, but argues nonetheless that this regulation provides

a sufficient statement of the rule to overcome the appli-

cation of APA section 7(c), which otherwise would place

the burden of persuasion on the claimant. Section 718.3(c)

is a slender reed upon which to base a supersedure ar-

gument.

It would take an act of interpretive legerdemain to find

the true doubt rule in this internally inconsistent regula-

tion. The third sentence of section 718.3(c) appears plainly

to require that the claimant establish entitlement to ben-

efits by a preponderance of the evidence. That sentence

requires that the “record considered as a whole, which

must include opposing evidence, provide a ‘reasonable ba-

21

sis” for determining that the claimant is eligible for ben-

efits. The only way the entire record can provide a

“reasonable basis” for finding any fact is if the evidence

weighs in favor of that fact; when the evidence is in equi-

poise, it is not reasonable to conclude that a fact has been

established.

Sentence one of section 718.3(c), on the other hand,

imposes a very different, and irreconcilable, burden of

proof. Taken literally, this sentence would impose on the

employer in BLBA benefit cases a burden akin to that the

government bears in criminal trials: to prove beyond a

reasonable doubt that the claimant is not entitled to ben-

efits. Petitioner understandably does not argue for such a

rule, but petitioner also fails to explain how this sentence.

or any other part of section 718.3(c), leads one to the true

doubt rule.

Petitioner’s concocted interpretation of section 718.2(c)

falis far short of the showing necessary to overcome ap-

plication of APA section 7(c) to the BLBA. Section 12 of

the APA commands that a “{s]ubsequent statute may not

be held to supersede or modify [section 7(c), among others]

except to the extent that it does so expressly.” 5 U.S.C.

§ 559. To override section 7(c) of the APA, a statute must

state explicitly, in clear language, Congress’ intent to do

so. Rusk v. Cort, 369 U.S. 367, 379-380 (1962); Brownell

v. Tom We Shung, 352 U.S. 180, 185 (1956): Shaughnessy

v. Pedreiro, 349 U.S. 48, 51 (1955); Ass’n of Data Proe-

essing Service Orcenizations, Inc. v. Board of Governors

of the Federal Reserve System, 745 F.2d 677, 686 (D.C.

Cir. 1984) (Scalia, J.).

BLBA section 442(a) does not provide such an express

statement of supersedure. Rather, that statutory section-

provides only that other parts of the statute or regulations

may preclude incorporation of several different LHWCA

(and consequently APA) provisions. To meet the section

12 requirement, therefore, any such statutory section or

regulation must, at a minimum, provide an express state-

22

ment of supersedure.’* It is difficult to imagine superse-

dure language less express or clear than 20 C.F.R.

§ 718.3(c). Not only does that regulation not mention sec-

tion 7(c) or burden of proof, it makes no sense.

B. Nothing in the LHWCA Is Inconsistent with the

Burden of Proof in Section 7(c).

Petitioner contends that the LHWCA eschews any sta-

tutorily-defined burden of proof. LHWCA section 23(a), 33

U.S.C. § 923{a), provides:

In making an investigation or inquiry or conducting

a hearing the deputy commissioner or Board shall not

be bound by common law or statutory rules of evi-

dence or by technical or formal rules of procedure,

except as provided by this chapter; . . .

According to petitioner, this provision is contrary to the

burden of proof requirements of APA section 7(c), and

therefore supersedes that section pursuant to the “‘oth-

erwise provided by statute” exception in section 7(c).

Petitioner's Brief at 45-47. Petitioner is wrong about both

the meaning and effect of LHWCA section 23(a).

Petitioner notes the apparent circularity between

LHWCA section 23(a) and APA section 7(c): Section 7(c)

assigns a burden of proof, except as otherwise provided

by statute. Section 23(a) voids formal rules of evidence

and procedure, except as provided in that chapter of the

LHWCA. That chapter of the LHWCA incorporates APA

section 7(c). See 33 U.S.C. § 919%d). Petitioner would break

the circularity in favor of section 23(a), but provides no

explanation for this arbitrary choice other than that it

* Some courts have questioned whether the Secretary of Labor has

any authority at all to issue regulations inconsistent with the incor-

porated LHWCA provisions. See U.S. Pipe & Foundry Co. v. Webb,

595 F.2d 264, 273-274 (5th Cir. 1979); Director, OWCP wv. Peabody Coal

Co., 554 F.2d 310, 341 (7th Cir. 1977). Even if the Secretary has such

authority, however, any regulations issued pursuant to section 442(a)

that purport to supersede APA section 7(c) must meet the express

statement requirement.

23

would prevent “the entire argument [from] becomfi ir-

cular.” Petitioner’s Brief at 46. cares eo

In fact, there is no circularity. The LHWCA definitivel

tips the balance in favor of APA section 7(c). Section 1944)

of the LHWCA, 33 U.S.C. § 919(d), does more than simply

incorporate the relevant APA provisions. That section de-

clares that APA provisions are to apply to LHWCA benefit

hearings (nlotwithstanding any other provisions of this

chapter.” 33 U.S.C. § 919d) (emphasis added). The

LHWCA thereby mandates that section 23(a) and other

provisions of that chapter of the LHWCA are not to be

read to ‘Supersede application of the relevant APA pro-

visions, including section 7(c).° Yet that is precisely what

petitioner attempts to do.

There is also no circularity between LHWCA section

23(a) and APA section 7(c) because there is no inconsis-

tency between the rule in section 23(a) and the burden of

proof assigned by section 7(c). Petitioner assumes without

justification that the rejection of formal rules of evidence

and procedure in section 23(a) sweeps away the burden of

proof as well. To the contrary, it is beyond dispute that

the assignment of the burden of proof to one party or

another is not a rule of evidence or procedure, but a rule

of substantive law. E.g., American Dredging Co. v. Miller

114 S. Ct. 981, 988 (1994); Cities Service Oil Co. v. Dunlap

308 U.S. 208, 212 (1939); Central Vermont R. Co. v. White

238 U.S. 507, 512 (1915); CIR v. Bain Peanut Co., 134

F.2d 853, 857 (5th Cir. 1943). See generally 9A Wigmore

on Evidence § 2485, at 286 n.4 (“It is ... a fallacy to

Suppose that the necessity of apportioning the burden of

proof is a ‘technical, formal, legal’ doctrine”). LHWCA

= ae simply has nothing to say about the burden

proof.

See also 20 C.F.R. § 702.339 (“In making an investigati

02. tigation or in-

quiry or conducting a hearing, the administrative law judge shall not

24

The federal courts have long understood that the lan-

guage in section 23(a) is concerned primarily with rules of

evidence and the admissibility of proof; claimants are not

to be restricted in making their case by the hearsay rule

and other technical rules of evidence or procedure. E.g.,

Bell Helicopter Int'l, Inc. v. Jacobs, 746 F.2d 1342, 1344

(8th Cir. 1984); Avondale Shipyards, Inc. v. Vinson, 623

F.2d 1117, 1121-1122 (5th Cir. 1980); Tampa Ship Repair

& Dry Dock Co., Ine. v. Director, OWCP, 535 F.2d 936,

938 (5th Cir. 1976); Southern Stevedoring Co., Inc. v. Voris,

190 F.2d 275, 277 (5th Cir. 1951). Indeed, the APA in-

corporates these same principles. E.g., Richardson v. Per-

ales, 402 U.S. 389, 409-410 (1971); Evosevich v.

Consolidation Coal Co., 789 F.2d 1021, 1025 (3d Cir. 1986).

This relaxation of the rules for putting on proof is inde-

pendent of the substantive issue of which party ultimately

is required to convince the factfinder. ‘No amount of

informality can alter the elementary requirement that the

claimant allege and prove the substance of all essential

elements of his case.’ '’ U.S. Industries/Federal Sheet Metal,

Inc. v. Director, OWCP, 455 U.S. 608, 614 n.7 (1982) (quot-

ing 3 A. Larson, The Law of Workmen’s Compensation

§ 78.10, at 15-12 (1976)).

The language in section 23(a) derives from New York's

original workers’ compensation law; nearly identical lan-

guage appears in most state workers’ compensation stat-

utes. 2B A. Larson, The Law of Workmen's Compensation

§ 79.30, at 15-426.100 (1993). The state courts understand

that the rejection of rules of evidence does not disturb the

burden of proof, which remains on the claimant:

The provision{] ... to the effect that the commission

shal] not be bound by common-law or statutory rules

of evidence or by technical or formal rules of pro-

cedure ... sweep{s] away procedural technicalities, to

the end that claimants may be afforded the protection

intended by the act ... but they do not dispense with

proof of the employe’s [sic] claim. On the contrary,

they impose upon him the imperative duty of proving

his case by ‘competent evidence.’ To hold otherwise

25

would amount to taking money from one person and

giving it to another without any legal basis for doing

so.

Lappinen v. Union Ore Co., 29 N.W.2d 8, 15-16 (Minn.

1947) (internal citations omitted). See generally 2B Law

of Workmen's Compensation § 79.30. So too does the true

doubt rule give benefits to claimants without proof of en-

titlement.

TRUE DOUBT IS AN UNFAIR AND UNWARRANTED

RULE THAT UNDERMINES THE REASONED

ADJUDICATION OF BENEFITS CLAIMS

If the true doubt rule worked as petitioner claims, the

question these cases present would not be wor this

Court’s attention. According to petitioner, the true doubt

rule “provides only that when an adjudicator finds the

evidence on both sides of point evenly balanced . . ., un-

certainty should be resolved in favor of the claimant.”

Petitioner’s Brief at 18-19. If, in fact, the rule served

solely as a ‘“‘tie-breaker” in the extraordinary instance

where evidence is in equipoise, the rule would still violate

APA section 7(c), but it would be of little, if any, practical

significance. In practice, however, the true doubt rule is

not reserved for the extraordinary case of equipoise.

Rather, ALJs invoke the rule frequently in abrogation of

their responsibility to decide the issues before them, and

as a license to award benefits irrespective of the merits

of the claim.

Federal and state courts recognize that it is “a rare

case when, assuming the evidence is weighed by the pre-

ponderance of evidence standard, the conflicting evidence

is in equipoise.”” United States v. DiGilio, 538 F.2d 972,

988 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977). See

also Medina v. California, 112 S. Ct. 2572, 2579 (1992)

(allocation of the burden of proof affects only “a narrow

class of cases where the evidence is in equipoise’’); People

v. Bilyew, 383 N.E.2d 212, 215 (Ill. 1978) (it is “rare”

26

that evidence “‘is so nicely balanced’”’ that it can be deemed

in equipoise); Preston v. Keith, 584 A.2d 439, 443 n.8

(Conn. 1991) (“the allocation of the burden of proof de-

termines which party prevails on an issue only in the rel-

atively rare case where the factfinder concludes that the

evidence on that issue is in equipoise’’). In the overwhelm-

ing majority of cases, there will be some factor by which

the factfinder can determine that the evidence on one side

or the other preponderates. As one state supreme court

justice put the matter, “it may be that there have been,

or will be, cases in which the evidence is in perfect equi-

poise .... But I am not sure I have ever seen such a

case in over twenty years on the bench.” Miller v. Leon-

ard, 588 So.2d 79, 84 (La. 1991) (Hall, J., concurring).

Despite the obvious rarity of true equipoise, ALJs de-

termining eligibility for benefits under the BLBA and

LHWCA declare the evidence in absolute balance with re-

markable regularity. Indeed, recent volumes of the Black

Lung Reporter are filled with administfative cases invoking

the true doubt rule on one issue or another.'* Far from

a once-in-a-career experience, some ALJs issue decisions

invoking the true doubt rule multiple times each year."

* See, e.g., Gasperetti v. Director, OWCP, 16 BLR 3-956, 3-959 (1992);

Kennedy v. Shannon Pocahontas Mining Co., 16 BLR 3-942, 3-947 (1992);

Kintzel v. Kintzel Coal Co., 16 BLR 3-841, 3-848 (1992); McGlone v.

Maiden Mining, Inc., 16 BLR 3-717, 3-721 (1992); Pupo v. State Coal

Co., 16 BLR 3-685, 3-691 (1992); Griffiths v. B-D Mining Co., 16 BLR

3-673, 3-682 (1992); Smith v. Peabody Coal Co., 16 BLR 3-622, 3-628

(1992); Shajf v. U.S. Steel Mining Co., 16 BLR 3-612, 3-616 (1992);

Willinsky v. Director, OWCP, 16 BLR 3-536, 3-540 (1992); Artz v.

A&H Coal Co., 16 BLR 3-192, 3-197 (1992); Sanson v. Director, OWCP,

16 BLR 3-183, 3-189 (1992); Poff v. Westmoreland Coal Co., 16 BLR

3-53, 3-60 (1991); Beal v. Director, OWCP, 15 BLR 3-297, 3-301 (1991);

Sutherland v. Clinchfield Coal Co., 14 BLR 3-862, 3-865 (1991); Nickles

v. Tackett & Manning Coal Co., 14 BLR 3-827, 3-830 (1991).

" See, e.g., Nickles v. Tackett & Manning Coal Co., 14 BLR 3-827,

3-830 (1991) (ALJ Gilday); Stills v. Pyro Mining Co., 14 BLR 3-834,

3-847 (1991) (ALJ Gilday); Slone v. Wolf Creek Collieries, 15 BLR 3-

430, 3-441 (1991) (ALJ Gilday); Mills v. Plastics Universal Corp., 15

BLR 3-838, 3-844 (1991) (ALJ Gilday).

27

It is highly doubtful that true equipoise, which is such

a rarity in all other areas of jurisprudence, is commonplace

in benefits cases under the BLBA and the LHWCA. The

inordinate invocation of true doubt in BLBA and LHWCA

cases is, in itself, a strong indication that the rule is noth-

ing more than a convenient mechanism for ALJs to avoid

making difficult decisions.

Greenwich Collieries is a perfect example. Petitioner as-

serts that the ALJ in that case properly applied the true

doubt rule to resolve ‘conflicting evidence of the existence

of pneumoconiosis.” Petitioner’s Brief at 33 n.20. At the

same time, petitioner confesses error on another issue,

declaring that the ““ALJ’s opinion does not ... reflect an

adequate evaluation or weighing of the evidence concern-

ing whether the claimant was totally disabled. The ALJ

therefore did not properly justify her resort to the ‘true

doubt’ rule.” Jd., at 34 n.20. Petitioner’s failure even to

hint at how it decided whether the ALJ “‘permissibly ap-

plied the ‘true doubt’ rule” on either issue is a revealing

example of the lawless nature of the true doubt inquiry.

The true doubt rule is in fact a highly subjective test

that leads to arbitrary and unfair results. As such, the

rule is directly contrary to a fundamental purpose of the

APA, which was intended to create uniform and predict-

able standards of administrative adjudication. See, e.g.,

Attorney General’s Manual on the Administrative Proce-

dure Act at 9 (1947) (one of the “four basic purposes” of

the APA is to “prescribe uniform standards for the con-

duct ... of adjudicatory proceedings’’).

The BLBA and LHWCA serve the same purpose. Those

acts are not simple remedial statutes intended solely for

the benefit of employees. Like all workers’ compensation

schemes, these laws provide indemnity and medical ben-

efits on a no-fault basis, in exchange for the employee's

relinquishing the right to sue the employer in tort. In so

doing, these workers’ compensation programs provide a

system of quick and predictable adjudications:

28

[The LHWCA] was designed to strike a balance be-

tween the concerns of the longshoremen and harbor

workers on the one hand, and their employers on the

other. Employers relinquished their defenses to tort

actions in exchange for limited and predictable lia-

bility. Employees accept the limited recovery because

they receive prompt relief without the expense, un-

certainty, and delay that tort action entails.

Morrison-Knudsen Constr. Co. v. Director, OWCP, 461 U.S.

624, 636 (1983) (emphasis added).

The true doubt rule undermines predictability and fair-

ness in adjudication. Such inequity is not justified by a

reflexive characterization of the BLBA and LHWCA as

“‘remedial.”” Most statutes, including all state workers’

compensation laws, are remedial. That the BLBA and

LHWCA benefit injured employees does not warrant the

arbitrariness that results from permitting a party to change

the status quo without meeting its burden of proof.

CONCLUSION

For the foregoing reasons, this Court should affirm the

judgments of the Court of Appeals.

Respectfully submitted,

CRAIG A. BERRINGTON *WILLIAM J. KILBERG

Bruce C. Woop THEODORE J. BouTrous, JR.

AMERICAN INSURANCE ASSOCIATION MARK SNYDERMAN

1130 Connecticut Ave., N.W. GiBsON, DUNN & CRUTCHER

Washington, D.C. 20036 1050 Connecticut Ave., N.W.

(202) 828-7100 Washington, D.C. 20036

(202) 955-8500

Attorneys for Amicus Curiae

*Counsel of Record