Opposition Brief — Peabody Coal Co. v. Taylor

OO —— |

‘t) /} EIDED

vet JUN 25 1990

No. 89-1696

- LERK

Iu the Supreme Court of the United States a

OCTOBER TERM, 1990

PEABODY COAL COMPANY AND

OLD REPUBLIC INSURANCE COMPANY, PETITIONERS

U.

HUBERT C. TAYLOR AND DIRECTOR,

OFFICE OF WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

KENNETH W. STARR

Solicitor General

DAVID L. SHAPIRO

Deputy Solicitor General

CHRISTOPHER J. WRIGHT

Assistant to the Solicitor General

Department of Justice

ROBERT P. DAVIS Washington, D.C. 20530

Solicitor of Labor (202) 514-2217

ALLEN H. FELDMAN

Associate Solicitor

EDWARD D. SIEGER

Attorney

Department of Labor

Washington, D.C. 20210

QUESTIONS PRESENTED

1. Whether the rebuttal provisions of a Depart-

ment of Labor regulation satisfy Section 402(f) (2)

of the Black Lung Benefits Act, which requires the

Department to apply “[c]riteria * * * not more re-

strictive” than criteria applied during an earlier

phase of the black lung program.

2. Whether the statute, if construed to invalidate

the Department’s rebuttal provisions, violates the con-

stitutional guarantee of due process.

(1)

TABLE OF CONTENTS

Page

Neen. sacimamsennidevesesnchcaeenesse 1

Neen ee ssa wnsssunancwastesepavnoessvones 2

Statement ....................... (8 raya Rt ad ple 2

ac ocemacivsessnbenadvewsnsansone 6

Neen ec chssinbieedceseoswenssine 15

TABLE OF AUTHORITIES

Cases.

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

F.2d 1295 (8d Cir. 1989), petition for cert.

pending sub nom. Pauley v. Bethenergy Mines,

sss saawbaaninanetnvesonannns 6, 11, 12, 15

Dayton vy. Consolidation Coal Co., 895 F.2d 173

(4th Cir. 1990), petition for cert. pending, No.

a ss ssnubasabbboaistadeuvacs 7,14

Director, OWCP v. Beatrice Pocahontas Co., 698

LE __) 11

Haywood vy. Secretary of Health & Human Serv-

ices, 699 F.2d 277 (6th Cir. 1983) _.......0000000000... 4

Krahel v. Consolidation Coal Co., No. 89-2394 (4th

Neen ses nesnadinucaesnnsenvecsncssés 7

Martin v. Alabama By-Prods. Corp., 864 F.2d 1555

a cpemhahbavieionaioion 12

Meyer Vv. Zeigler Coal Co., 894 F.2d 902 (7th Cir.

1990), petition for cert. pending, No. 89-7383... 8

Mullins Coal Co. v. Director, OWCP, 484 U.S. 135

Ne ci cwantanonéédteusaxoueensuse 11

Pittston Coal Group v. Sebben, 109 S. Ct. 414

rc cnevstismensonoces 2, 4, 6, 9

Ramey Vv. Kentland Elkhorn Coal Corp., 755 F.2d

I cc swenccmacecssavenaveneocece 11

Robinette v. Director, OWCP, No. 88-1144 (4th

Neo cacunsicdwoapnanernonnpseense 7,9

Sherry v. Tesone Cocl Co., 4 Black Lung Rep.

(MB) 1-377 (Ben. Rev. Bd.), aff’d, 696 F.2d

Nee oss neneecenhvctosnecpecne 11

IV

Cases—Continued : Page

Snyder Vv. Buck, 340 U.S. 15 (1950) ...000022 14

Taft v. Alabama By-Products Corp., 733 F.2d 1518

IU, I a 11

Taylor v. Clinchfield Coal Co., 895 F.2d 178 (4th

Cir. 1990), petition for cert. pending, No. 90-

es eee aearel Te cae nae eee ee eee 7, 8,9

Wetherill v. Director, OWCP, 812 F.2d 376 (7th

TR 5 ie nea AAR ie Se ne RA ee eelee DV OT Ee DE ene 10

Wright v. Island Creek Coal Co., 824 F.2d 505

I, SI a Fe 13

Youghiogheny & Ohio Coal Co. v. Milliken, 866

fe ek ene eo 5, 6

Statutes, regulations and rules:

Black Lung Benefits Act, 30 U.S.C. 901 et seq......... 2

§ 402 (f) (2), 30 U.S.C. 902 (f) (2) .............. 24467

9,11, 12

20 C.F.R.:

I eos cela aoneaaameieiae 2

en coeuieicesectionbeeaens 2

Section 410.490 (c) (1) -(2) 2.0.2.2... 3

RSI EEE ec ne ee ME $13

ne Wwe ym LENE GR ES ( ) re 2

ection Taree te) (1 )-{8) .............................-.. 3

CO OD i cecccsstretccecncacvesmmnned 3, 6, 10

I UC OD ci ccceervene cence 13

Sup. Ct. R.:

IR ec rer ern ook es Oe ne 13

I 13

Miscellaneous:

Employment Standards Admin., United States

Dep’t of Labor, Annual Report on Administra-

tion of the Black Lung Benefits Act for Calen-

Cd, | Ce Ce 9

By DS Es | ne 11

Prunty & Solomons, The Federal Black Lung Pro-

grams: Its Evolution and Current Issues, 91

Le SS Sy RRO 12

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1696

PEABODY COAL COMPANY AND

OLD REPUBLIC INSURANCE COMPANY, PETITIONERS

U.

HUBERT C. TAYLOR AND DIRECTOR,

OFFICE OF WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 4a-

14a) and its order denying rehearing (Pet. App. la-

2a) are reported at 892 F.2d 503. The court of ap-

peals’ earlier opinion in this case (Pet. App. 18a-

22a) is reported at 838 F.2d 227. The decision and

order of the Benefits Review Board (Pet. App. 24a-

27a) and the decision and order of the administrative

law judge (Pet. App. 28a-40a) are unreported.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered

on August 28, 1989, and the order denying petitions

for rehearing was entered on February 1, 1990. Pet.

App. la-2a. The petition for a writ of certiorari was

filed on May 2, 1990. The jurisdiction of this Court

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

STATEMENT

1. The Black Lung Benefits Act, 30 U.S.C. 901

et seq., provides benefits to former coal miners and

their survivors for total disability or death due to

pneumoconiosis. Disability claims filed by June 39,

1973, were considered by the Department of Health.

Education, and Welfare (HEW) under reculations

that included a presumption of entitlement to benefits

(20 C.F.R. 410.490) that was available to certain

claimants. Claims filed after that date are considered

by the Department of Labor. Claims filed with the

Department of Labor before April 1, 1980, are sub-

ject to Section 402(f)(2) of the statute, 30 U.S.C.

902(f) (2), which provides that the “[c]riteria” ap-

plied to those claims “shall not be more restrictive

than the criteria applicable to a claim” adjudicated

by HEW. See Pittston Coal Group v. Sebben, 109

S. Ct. 414, 417-419 (1988).

In response to Section 402(f) (2), Labor promul-

gated its own presumption regulation, 20 C.F.R.

727.203. While there were only two ways to invoke

HEW’s presumption (see 20 C.F.R. 410.490(b) (1)),

there are five ways to invoke Labor’s presumption.

See 20 C.F.R. 727.203(a)(1)-(5). Once the pre-

sumption had been invoked, HEW’s regulation speci-

fied that the presumption could be rebutted (1) by

proving that the miner was doing his usual coal mine

3

work or comparable work or (2) by proving that the

miner was capable of doing such work. 20 C.F-.R.

410.490(c) (1) and (2). In contrast, Labor’s regula-

tion specifies four rebuttal methods. The first two

generally correspond to the two specified HEW meth-

ods. 20 C.F.R. 727.203(b)(1) and (2). The third

and fourth Labor methods allow a party contesting

entitlement to defeat a claim either (3) by proving

that the disability or death of the miner did not arise

in whole or in part from coal mine employment or

(4) by proving that the miner does not or did not

have pneumoconiosis. 20 C.F.R. 727.203(b) (3) and

(4).

2. In 1977, after 42 years of coal mining, respond-

ent Hubert Taylor applied for black lung benefits.

Pet. App. 29a, 3la. A deputy commissioner in the

Department of Labor’s Office of Workers’ Compensa-

tion Programs (OWCP) initially found him eligible

for benefits, but petitioner Peabody Coal Company,

the responsible coal mine operator, contested eligibil-

ity and obtained a hearing before an administrative

law judge. Pet. App. 30a.

The ALJ concluded that Taylor would be ineligible

for benefits under Labor’s interim presumption. The

ALJ concluded that Taylor had invoked the presump-

tion of eligibility based on his 42 years of coal min-

ing and on x-ray evidence showing pneumoconiosis.

Pet. App. 6a, 36a. But the ALJ found that Peabody

Coal had rebutted the presumption under Labor’s

second method of rebuttal (20 C.F.R. 727.203 (b) (2) )

by proving that Taylor had only a mild respiratory

impairment that did not prevent him from doing his

usual coal mine work. Pet. App. 6a, 37a-38a.

However, the ALJ concluded that HEW’s regula-

tion applied to the claim and awarded benefits. Pet.

App. 39a n.38. Under HEW’s regulation, Taylor’s

4

coal mine-related pneumoconiosis also invoked a pre-

sumption of eligibility. Jd. at 39a. Although HEW’s

second rebuttal provision was very similar to Labor’s,

the ALJ concluded that rebuttal was unavailable

under Labor’s method because HEW’s regulation had

been construed differently. Specifically, in Haywood

v. Secretary of Health & Human Services, 699 F.2d

277 (6th Cir. 1983), the court held that under HEW’s

second provision the presumption “can be rebutted

only by evidence establishing that the Claimant is not

vocationally disabled.” That is, the court concluded

that under HEW’s provision, the Secretary had to

show that the claimant could obtain work as a miner

in the immediate area of his residence. Pet. App.

39a; see also Haywood, 699 F.2d at 285. Because

“no evidence was offered” to show that Taylor could

return to coal mine work in the area where he lived,

the ALJ found HEW’s presumption unrebutted and

held that Taylor was entitled to benefits. Pet. App.

39a.

2. The Benefits Review Board reversed. Pet. App.

24a-27a. The Board held that Labor’s regulation ap-

plied, rather than HEW’s. 7d. at 26a. Because

Taylor had not challenged the ALJ’s finding of re-

buttal under Labor’s regulation, the Board affirmed

the denial of benefits on that basis. Jd. at 27a.

3. The court of appeals affirmed. Pet. App. 18a-

22a. It agreed with the Board that Section 402(f) (2)

of the statute required Labor only to apply medical

criteria that were no more restrictive than HEW’s

medical criteria, and did not require Labor to apply

all of HEW’s other rules. Pet. App. 2la-22a. After

this Court rejected that reading of the statute in

Sebben (109 S. Ct. at 421), it vacated the court of

appeals’ decision in this case and remanded for re-

consideration in light of Sebben. Pet. App. 23a.

5

4. On remand, the court of appeals reinstated the

ALJ’s award of benefits. Pet. App. 4a-l4a. The

court did not state which rebuttal methods were

at issue in the case, but it determined that Labor’s

“criteria” generally differed from HEW’s because

“all relevant medical evidence” must be considered

under Labor’s rebuttal provisions, while HEW’s pre-

sumption “cannot be rebutted by medical evidence.”

Id. at 8a. Moreover, in the court’s view, HEW’s

regulation did not allow rebuttal by Labor’s third

method (proof, by medical evidence, that total dis-

ability or death did not arise in whole or in part

from coal mining) or Labor’s fourth method (proof,

by medical evidence, that the miner does not or did

not have pneumoconiosis). bid. Labor’s considera-

tion of medical evidence, in the court’s view, violated

the statute. 7d. at 9a.

The court recognized that the Sixth Circuit had

upheld Labor’s rebuttal provisions in Youghioaheny

& Ohio Coal Co., v. Milliken, 866 F.2d 195 (1989),

and other cases, but “respectfully disagree[d]” with

the Sixth Circuit’s decisions. Pet. App. 9a. The court

also rejected Peabody Coal’s argument that pre-

cluding proof that petitioner is not totally disabled

on account of pneumoconiosis violated due process.

Id. at 13a. In the court’s view, Section 402(f) (2),

“in forbidding consideration of certain criteria on

rebuttal, [does not] operate!] in a ‘purely arbitrary’

manner.” Pet. App. 18a.

In an order denying rehearing, the court suggested

that there might be some circumstances when HEW’s

regulation allowed medical rebuttal, but reaffirmed

that “to the extent the Department of Labor regula-

tions allow rebuttal—when HEW’s do not—the Labor

rules are invalid.” Pet. App. 2a.

6

ARGUMENT

We agree with petitioners that the court of ap-

peals erred with respect to the questions presented

for review and that this. Court should review those

questions. The same questions are presented, how-

ever, in other cases pending before this Court, and

we do not believe that this case is an appropriate

vehicle for plenary consideration.

1. In Pittston Coal Group vy. Sebben, 109 S. Ct.

414 (1988), this Court held that the invocation por-

tion of Labor’s presumption (which ‘s not at issue

here) violates Section 402(f)(2)’s command to ap-

ply “criteria” no more restrictive than those applied

by HEW. The Court did not decide whether Labor’s

rebuttal provisions were valid because the respond-

ents in Sebben had conceded their validity. 109 S. Ct.

at 423. For the same reason, the Court did not de-

cide whether application of Labor’s rebuttal methods

was constitutionally required. Ibid.

Since Sebben, four courts of appeals have ad-

dressed the validity of Labor’s rebuttal provisions.

The Third and Sixth Circuits have upheld the pro-

visions. Bethenergy Mines, Inc. vy. Director, OWCP,

890 F.2d 1295 (3d Cir. 1989), petition for cert.

pending sub nom. Pauley vy. Bethenergy Mines, Inc.,

No. 89-1714 (filed May 7, 1990); Youghiogheny «:

Ohio Coal Co. y. Milliken, 866 F.2d 195 (6th Cir.

1989). In both of those cases, miners invoked La-

bor’s presumption by proving the existence of pneu-

moconiosis. 890 F.2d at 1296; 866 F.2d at 197. In

both cases, benefits were denied because coal mine

operators proved under Labor’s third rebuttal method

(20 C.F.R. 727.203(b)(3)) that the miners’ disabili-

ties did not arise in whole or in part from the dis-

ease. 890 F.2d at 1296, 1299; 866 F.2d at 197.

7

The court below and the Fourth Circuit, on some-

what different facts, have invalidated parts of

Labor’s rebuttal regulation. In Taylor v. Clinch field

Coal Co., 895 F.2d 178 (4th Cir. 1990), petition for

cert. pending, No. 90-113 (filed July 17, 1990), an

ALJ concluded that a miner who had invoked the

presumption did not have pneumoconiosis, so that the

relevant operator had rebutted the presumption un-

der Labor’s fourth method. 895 F.2d at 179. The

ALJ also concluded that the miner was not totally

disabled (in whole or in part) as a result of pneumo-

coniosis, so that the presumption had been rebutted

under Labor’s third method as well. Jbid. The

Fourth Circuit concluded that Labor’s four rebuttal

methods “permit rebuttal of more elements of entitle-

ment than do the interim HEW regulations which

permit rebuttal solely through attacks on the element

of total disability,” and held that they were contrary

to Section 402(f)(2). 895 F.2d at 182-183. Accord

Dayton vy. Consolidation Coal Co., 895 F.2d 173 (4th

Cir. 1990), petition for cert. pending, No. 90-114

(filed July 17, 1990).’

1In Taylor vy. Clinchfield Coal, the Fourth Circuit found no

substantial evidence of rebuttal under Labor’s third method,

but suggested that HEW’s regulation might have allowed a

third method of rebuttal “similar” to Labor’s third method,

and remanded for consideration of that issue. 895 F.2d at

183. In an unpublished decision following Taylor v. Clinch-

field Coal, the court concluded that this suggestion was “dicta”

and that HEW’s regulation allowed only two rebutta! methods.

. Robinette v. Director, OWCP, No. 88-1144 (4th Cir. Apr. 27,

1990), slip op. 8 & n.9, petition for cert. pending (filed July 25,

1990). See also Krahel v. Consolidation Coal Co., No. 89-2394

(4th Cir. Apr. 5, 1990) (unpublished), slip op. 5-6 (“we have

recently held that application of the rebuttal provisions of 20

C.F.R. § 727.203 (b) (3) and (4) violates 30 U.S.C. § 902(f)”).

8

In this case, an ALJ concluded that the presump-

tion had been rebutted under Labor’s second method

by medical evidence that the miner had only a mild

respiratory impairment that did not prevent him

from doing his usual coal mine work. Pet. App. 37a-

38a. The ALJ awarded benefits on the theory that

HEW’s second rebuttal method, unlike Labor’s second

methrd, required proof that a miner was not “voca-

tionally disabled,” i.e., could actually obtain work as

a miner. Jd. at 39a.

While this case turns on a narrow issue relating

to the second rebuttal provision, the court of appeals,

in affirming the award of benefits, spoke broadly. It

construed HEW’s regulation not to allow rebuttal by

medical evidence generally or by medical evidence

satisfying Labor’s third or fourth rebuttal methods.

Pet. App. 8a. Because Labor’s rebuttal rules allow

consideration of such evidence, the court concluded

that the rules violated the statute. Jd. at 9a. In its

order denying rehearing, the court suggested that

some medical evidence could be considered under

HEW’s regulation, but confirmed that it had “held

that to the extent the Department of Labor regula-

tions allow rebuttal—when HEW’s do not—the La-

bor rules are invalid.” Jd. at la-2a. See also Meyer

v. Zeigler Coal Co., 894 F.2d 902, 905 n.3 (7th Cir.

1990) (“this court held in [Taylor v. Peabody Coal]

that § 727.203(b)(3) was invalid”), petition for

cert. pending, No. 89-7383 (filed Apr. 27, 1990).

The courts of appeals have acknowledged the con-

flict. Both the Fourth Circuit, 895 F.2d at 183 n.2,

and the court below, Pet. App. 9a-lla, noted their

disagreement with the approach of the Sixth Circuit.

The Third Circuit also noted the conflict between the

9

Sixth Circuit and the court below “as to issues sim-

ilar to those before us,” and declined to attempt to

harmonize the decisions. 890 F.2d at 1302-1303.

And the dissenting judge in the Fourth Circuit rec-

ognized the conflict among all four circuits, stating

that “[i]t seems to me that by adopting the views

of the Third and Sixth Circuits concerning these

murky and confusing regulations we ! would] do less

violence to congressional intent, and [would] avoid

both upsetting the statutory scheme and raising due

process problems.” 895 F.2d at 184; see also Rohi-

nette v. Director, OWCP, No. 88-1144 (4th Cir.

Apr. 27, 1990) (unpublished), slip op. 7-8 n.8 (ask-

ing the Court to “definitively resolve this conflict”),

petition for cert. pending (filed July 25, 1990).

2. In our view, the conflict in the circuits requires

this Court’s resolution.» However, we do not believe

that this case should be the vehicle for plenary con-

sideration. The primary issue here is a narrow one

relating to the validity of one aspect of Labor’s sec-

* Although Section 402(f)(2) applies only to claims filed

before April 1, 1980 (see Sebben, 109 S. Ct. at 418-419), the

conflict among the courts of appeals can still be expected to

have a significant, detrimental impact on the administration

of the black lung program. An estimated 2,000 to 3,500 claims

governed by Section 402(f) (2) are still in litigation, and we

believe that a high percentage of them are affected by the

conflict. Because the present value of a single black lung

claim has been estimated at between $118,316 and $185,656,

see Employment Standarads Admin., United States Dep’t of

Labor, Annual Report on Administration of the Black Lung

Benefits Act for Calendar Year 1979, at 32 (1980), the claims

have great importance to individual claimants and, given

their cumulative value (as much as $650 million), great im-

portance to the coal industry.

10

ond rebuttal method—whether a coal mine operator

must present vocational evidence showing that a

claimant can obtain coal mine work in order to rebut

the presumption. Regardless of this Court’s resolu-

tion of this issue, it would be unnecessary in the cir-

cumstarices of this case for the Court to address di-

rectly the permissibility of Labor’s third and fourth

rebuttal methods.*

Furthermore, consideration of the validity of La-

bor’s second method of rebuttal raises issues different

from those raised by the third and fourth methods.

As discussed above, the language of Labor’s second

method is materially the same as the language of

HEW’s second method. The ALJ’s decision requiring

vocational evidence (proof of a miner’s ability to ob-

tain coal mine work in the immediate area of his

residence) under HEW’s regulation was based solely

on the Sixth Circuit’s 1983 construction of that reg-

ulation in Haywood. See Pet. App. 39a; 699 F.2d at

3’ The ALJ found that the operator had failed to rebut under

either the third or fourth methods (Pet. App. 38a), and the

court of appeals did not address the ALJ’s findings. More-

over, the ALJ’s findings appear to be correct. Labor’s third

rebuttal method requires proof that a disability did not arise

“in whole or in part’ from coal mine employment, and its

fourth method requires proof that the miner does not or did

not have pneumoconiosis. 20 C.F.R.-727.203(b) (3) and (4).

It is undisputed that respondent Taylor had pneumoconiosis,

the method by which he invoked Labor’s presumption, and

substantial evidence will likely support the ALJ’s finding that

this disease, although mild, contributed to his disability. Pet.

App. 38a. Cf. Wetherill v. Director, OWCP, 812 F.2d 376,

380 (7th Cir. 1987) (proof of no respiratory impairment,

while probably insufficient under Labor’s second method,

would rebut under the third method).

11

285. The issues concerning Labor’s second method

are therefore whether Haywood correctly construed

HEW’s language—contrary to other interpretations

of identical language in Labor’s regulation ‘—and, if

so, whether Section 402(f)(2) required Labor to

adopt this interpretation when it promulgated 20

C.F.R. 727.203.

Neither of these issues is relevant to determining

the validity of Labor’s third and fourth rebuttal

methods. These latter methods involve inquiries into

whether a miner’s disease or disability arose out of

coal mine employment, while the second method re-

lates to whether a miner is totally disabled. See

Mullins Coal Co. vy. Director, OWCP, 484 U.S. 135,

150-151 n.26 (1987). One question concerning the

validity of the third and fourth methods is therefore

whether HEW’s regulation, which specified rebuttal

only by methods comparable to Labor’s first two re-

buttal methods, nevertheless allowed the inquiries

into causation that take place under Labor’s third

and fourth methods. If the Department of Labor

correctly concluded that HEW did allow such in-

quiries, then Labor’s third and fourth methods are

valid. See 43 Fed, Reg. 36,826 (1978) (Department

of Labor’s view that HEW did allow four methods) ;

Bethenergy, 890 F.2d at 1302 & n.8 (agreeing with

4 The courts of appeals have by and large construed Labor’s

“usual coal mine work” rebuttal method not to require voca-

tional evidence. See Ramey v. Kentland Elkhorn Coal Corp.,

755 F.2d 485 (6th Cir. 1985); Taft v. Alabama By-Products

Corp., 733 F.2d 1518 (11th Cir. 1984); Director, OWCP v.

Beatrice Pocahontas Co., 698 F.2d 680 (4th Cir. 1983) ;

Sherry v. Tesone Coal Co., 4 Black Lung Rep. (MB) 1-377

(Ben. Rev. Bd.), aff’d, 696 F.2d 985 (3d Cir. 1982).

12

the Department). If HEW’s regulation did not allow

such inquiries, then the validity of Labor’s third and

fourth methods turns on whether Section 402(f) (2)

required Labor to limit rebuttal to the two HEW

methods. See Bethenergy, 890 F.2d at 1299-1301

(statute does not prohibit these inquiries). Petition-

ers’ due process argument similarly relates to the

third and fourth methods, as they contend that it

would be unconstitutional to order them to pay bene-

fits without permitting them to prove that the claim-

ant is not totally disabled as a result of coal mine

employment. See Pet. 18-21. That due process argu-

ment has no bearing on the question whether a coal

mine operator must present vocational evidence in

order to rebut the presumption.

We believe the Court should grant review in a case

where Labor’s third and fourth methods are directly

at issue. Those methods are more important than the

second method because they allow a broader range

of rebuttal. Parties contesting eligibility do not fre-

quently succeed under Labor’s second method because

recent courts of appeals decisions require them to

prove under this method that a miner does not have

any impairment, respiratory or nonrespiratory, that

prevents him from doing his usual coal mine work.

See, e.g., Martin v. Alabama By-Prods. Corp., 864

F.2d 1555, 1557 (11th Cir. 1989), and cases cited.’

In contrast, proof of the absence of any respiratory

or pulmonary impairment will rebut under Labor’s

5 The ALJ, who decided this case before those court deci-

sions had been issued, erroneously found rebuttal under

Labor’s second method by proof that the claimant was not

totally disabled as a result of a respiratory or pulmonary

condition. Pet. App. 37a-38a. The claimant did not challenge

this finding, however. Id. at 27a.

13

third method, Wright v. Island Creek Coal Co., 824

F.2d 505 (6th Cir. 1987), and proof that a respira-

tory or pulmonary impairment is not pneumoconiosis

will rebut under Labor’s fourth method, see 20 C.F.R.

727.203(b) (4). Because applicants for black lung

benefits are frequently aging miners who have some

disability, Labor’s third and fourth methods usually

provide the only realistic possibilities of rebutting a

presumption of entitlement. See also Pruntvy &

Solomons, The Federal Black Lung Program: Its

Evolution and Current Issues, 91 W. Va. L. Rev. 665.

695 (1989) (agreeing that Labor’s second method is

unavailable in most cases).

3. If the Court decides to review the validity of

Labor’s third and fourth methods in an appropriate

case, we do not believe it necessary for the Court to

grant review in this case as well in order to determine

the validity of Labor’s second rebuttal method. As

discussed above, the second method is distinct from

and not as important as the third and fourth meth-

ods. Moreover, the court below viewed the issue so

broadly that it did not address the specific issues re-

garding the validity of Labor’s second method: in-

deed, it did not seem to recognize that the case turns

on whether Labor’s second rebuttal method requires

vocational evidence. These factors would likely create

unnecessary complications for the Court.

In addition, respondent Hubert Taylor died on

April 27, 1988, 12 days after he filed the prior peti-

tion for a writ of certiorari in this case. We believe

it would have been proper for this Court to grant a

timely motion to substitute his personal representa-

tive. But Rule 35.1 of the Rules of this Court (form-

erly Rule 40.1) provides that “[t]he substitution of

14

a representative of the Heceased * * * must be made

within six months after the death of the party, or the

case shall abate,” and no such motion was made

within the specified period. See Snyder v. Buck, 340

U.S. 15, 21 (1950).

In May 1990, Mr. Taylor’s representative filed a

motion for substitution in this Court.® If the Court

concludes that the action has not abated and grants

the substitution motion, the proper disposition, in our

view, is for the Court to hold this case while it deter-

mines the validity of Labor’s third and fourth re-

buttal methods by reviewing one of the other pending

cases. The court below appears to have believed that

it invalidated Labor’s third and fourth methods, as

well as its second, by characterizing its decision as

holding that “to the extent the Department of Labor

regulations allow rebuttal—when HEW’s do not—the

Labor rules are invalid.” Pet. App. 2a. If this Court

upholds the validity of the third and fourth methods,

the rationale for the decision below would presum-

ably be undermined and the court of appeals should

therefore have an opportunity for reconsideration of

that decision.

6 The Court had not acted on this motion by July 20, 1990.

15

CONCLUSION

If the substitution motion is granted, the petition

for a writ of certiorari should be held and disposed

of as appropriate in light of the disposition of the

petition in Pauley y. Bethenergy Mines Corp., No.

89-1714, or Consolidation Coal Co. v. Dayton, No. 90-

114.’

Respectfully submitted.

KENNETH W. STARR

Solicitor General

DAVID L. SHAPIRO

Deputy Solicitor General

CHRISTOPHER J. WRIGHT

Assistant to the Solicitor General

ROBERT P. DAVIS

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

EDWARD D. SIEGER

Attorney

Department of Labor

JULY 1990

‘In our responses to the certiorari petitions in these two

cases, we set forth more fully our reasons for believing that,

of the petitions currently before the Court, they are the

strongest candidates for plenary consideration.

w U. S. GOVERNMENT PRINTING OFFICE; 1990 262203 20030