Opposition Brief — Peabody Coal Co. v. Taylor

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ve Supreme Court, u.S.

+ FILED

eh sto AUG 8 1930

ly JOSEPH F. SPANIOL. JP

No. 89-1696 —

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

PEABODY COAL COMPANY AND

OLD REPUBLIC INSURANCE COMPANY,

Petitioners,

HUBERT C. TAYLOR AND DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

BRIEF OF RESPONDENT HUBERT C. TAYLOR IN OPPOSITION

Jack N. VanStone (Counsel of Record)

VanStone & Associates

P.O. Box 3115

Tenth & Sycamore Streets

Evansville, Indiana 47730

(812)426-2811

Theodore Lockyear

Lockyear & Kornblum

550 Sycamore Street

P.O. Box 3515

Evansville, Indiana 47734

(812) 422-1199

Attorneys for Respondent Hubert C. Taylor

QUESTIONS PRESENTED

1. Whether, regardless of the correctness of the court of

appeals’ analysis concerning the validity and scope of the

rebuttal provisions of the Department of Labor (”DOL”) interim

regulation at 20 C.F.R. § 727.203, the record nonetheless

entitles Taylor tc an award of such benefits even under the

existing judicial interpretations of those provisions that are

least favorable to claimants?

2. Whether the rebuttal provision at § 727.203(b) (2)

violates Section 402(f) of the Black Lung Benefits Act, 30 U.S.C.

§ 902(f), if construed to permit the opponent of a claim to rebut

the presumption of disability solely by medical evidence showing

that the miner is physically able to do his usual coal mine work,

without any inquiry as to whether jobs entailing such work are

available to him?

3- Whether the rebuttal provisions of the DOL interim

regulation at 20 C.F.R. §§ 727.203(b)(3) and (b)(4) violate the

“not...more restrictive” mandate of Section 402(f)(2) of the Act

when applied to claimants who meet the invocation requirements of

the HEW interim provision at 20 C.F.R. § 410.490?

4. Whether Section 402(f)(2) or the Act violates the Due

Process Clause of the Fifth Amendment to the United States

Constitution if construed to prohibit employers from defeating

black lung benefit claims by application of any rebuttal

provisions in the DOL interim regulation that are “more

restrictive” than “criteria” in the HEW interim provision?

PARTIES TO THE PROCEEDING

Hubert Taylor was a claimant for disability benefits under

the Act. In the Seventh Circuit below he was the petitioner. In

this Court, he is the respondent named in the Petition for a Writ

of Certiorari. Because Taylor died, however, Charles Martin

(“Martin”), Personal Representative of Taylor’s estate, has filed

a Motion to Substitute, requesting that he be substituted for Mr.

Taylor as the named respondent here. If the Motion To Substitute

is granted, Martin will be the named individual respondent in

this Court.

The Director, Office of Workers’ Compensation Programs (the

“Director”), who was a respondent in the Seventh Circuit below,

is also a respondent here. See Sup. Ct. R. 12.4.

As set forth more fully in the Petition for a Writ of

Certiorari, the petitioners here (who were respondents in the

Seventh Circuit below) are the Peabody Coal Company and the Old

Republic Insurance Company (”Peabody”).

» 44 «

LE _O S

Page

TABLE i fey os Je yd: Fee es a ee ee ee ee ee ee ee iv

STATEMENT . cccccccccccccccccecccceeceeseeeeseececococe 1

A. The Black Lung Benefits Act And The

Interim Presumptions. ...cccccccccccsccecs . 1

B. TRIAS GHBGs cc srceccsesesevececs TrETrrrrrce Tn 3

REASONS WHY THE COURT SHOULD DENY THE PETITION

FOR A WRIT OF CERTIORARI... ...-eeeeeee eeoceccececcoes 8

A. The Court Should Deny The Petition Here In

Its Entirety Because The Judgment Of The Seventh

Circuit Is Correct Without Regard To Either

Question That The Petition Raises........ Terre 9

B. If The Court Does Not Deny The Petition Here

In Its Entirety, And Grants Review Of The Question

Involving The DOL Rebuttal Provisions At 20 C.F.R.

§§ 727.203(b)(3) And (b) (4) In One Of The Pending

Cases Presenting That Question, Then The Court

Should Grant Review Here Of A Narrower Statutory

Question Than The Petition Raises, One Involving

The DOL Rebuttal Provision At 20 C.F.R.

S PEF. S03 D) (2). avn cer ees a yee oer e ses 13

CONCLUSION... cccccccccccs Soe eee eeeeeneeresese coccece 28

- iii -

TABLE OF AUTHORITIES

Cases: Page(s)

Acheson v. Furusho, 212 F.2d 284 (9th Cir. 1954).. 20

, 816 F.2d 1116

PE Uh MUP Renee asesseseceeccesessecscsces 16,17

Anderson v. Yungkau, 329 U.S. 482 (1947).......... 19,20,

Vv », 9012 F. 24 131213

7 SE ee 16,17

Bethenergy Mines, Inc. v. Director, O.W.C.P.,

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

for cert. filed sub nom. Pauley v. Bethenergy

Mines, Inc., 58 U.S.L.W. 3725 (U.S. May 7,

1990) (NO. B9—1714) .cccccvecveccccvevsescseces 27,28

an s Vv a ocahontas Co., 3 BLR

1-773 (1981), aff’d sub nom. Director, O.W.C.P.

v. Beatrice Pocahontas Co., 698 F.2d 680 (4th

Cir. DOSS) cccccvecccsessessecesceecs 7 im Bl sm yh Oe Se + Pe FP

25,26

_ Bowen v. City of New York, 476 U.S. 467 (1986).... 21

Cohens v. Virginia, 19 U.S. (6 Wheat) 264 (1821).. 27

Crider v. Island Creek Coal Co., 723 F.2d 908

PRED COU CAE. LSED) ow ccccccccccessvseseces 26

oa -, 895 F.2d

173 (4th Cir. 1990), petition for cert.

filed, 59 U.S.L.W. 3055 (U.S. July 17,

Be, Gs WUE) cc ce cccnccecceccs Saar eos 28

Haywood v. Secretary of Health and Human Services,

a eee Ee SOU GE s. BOOS) con caccesncses sper 3,4,14,

Vv b - ucts Corp., 864 F.2d

Sr CE GENS SOME) cea aresneseseses eeocesece 11

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

1990), petition for cert. filed,

U.S.L.W. (U.S. Apr. 27, 1990) (N (No. 89-

T3B3) weccccvcvccescccscccccccccces e*eeeee e*eeeeee 27

Oravitz v. Director, O.W.C.P., 843 F.2d 738,

CSE CAP. ASS) a wcoccccvcscess peGase6eesaesers 11

- iv-

fe) v. Shonk, 906 F.2d 264

Prem CEP. BORG) Bocscase ore rey Se shanenees

Pit Vv. ’ U.S. ’

109 a ce. 414 CI9ESB) wc ccccccccccccsccscseccces

Vv t ° orp., 755 F.2d

485 (6th Cir. 1985) .cccccccccsecccsssesess eeee

Salfi v. Weinberger, 422 U.S. 749 (1975) .........

Snyder v. Buck, 340 U.S. 15 (1950) ...cceecececeees

Strike v. Director, O.W.C.P., 817 F.2d 395

F7UR Cas BOOT ic caccees Se Peer hee ent ere

Sykes v. Itmann Coal Co., 2 BLR 1-1089 (1980),

Taft v. Alabama By-Products Corp.,

York v. Benefits Review Board, 819 F.2d 134

Statutes:

rev'd sub nom. Sykes v. Director, O.W.C.P.,

812 F.2d 890 (4th Cir.

(llth Cir. 1984)

Sv Ww

(7th Cir.

eeeeer#kekess

ey,

837 F.2d 291

1988) ..ccccccccvecvccccccs

733 F.2d 1518

(6th Cir. 19B7) wccccccccccccccccccscsscescscces

Zipes v. Trans World Airlines, Inc., 455 U.S.

Se CN 64.54 5555 oo ks

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

et seq.

U.S.

(1982 and Supp. V 1987)

Cc.

Black Lung Benefits Act of 1972, Pub. L.

Pub. L.

153

No.

92-303,

§ 4(a),

86 Stat.

SG DOZ(D) ccccccsevccccccccescesceses

§ 9O2Z(£) (1) (A) cccccccccccvcccccces

§ 9O2Z(E) (2) ~-ccccccccccccccccccccces

G SAS{B) cc ccccccvesscsececssscesess

GS GIZA) co cccccccccccccsecccsescccsece

Page(s)

11,17

Black Lung Benefits Reform Act of 1977, Pub.

No.

Judiciary Act of 1925,

U.S.C.

u.8.Cs

Bee<Ge

U.S.C.

Regulations:

C.F.R.

§ 780 (1946)

95-239,

§ 11(a),

43 Stat. 941,

SO ee Ee ee

i Li ec duandeées

Fed. R.

Sup. Ct.

§ 921(c)

§ 404(d)

§ 405(g)

(1989)..

Civ.

(1986).

(1974)

Part 410 (Subpt. D)

ye es)

§ 410.412(a)(1)......

OMIM wi m

Part 718

§ 718.204(b) (1)..

35.1 (1990)..

40.1 (1984).

2 rare ee ee a ee

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$9.4 ¢1996).....

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25(a) (1) (1946).........

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Page(s)

19,20

18,19,

20,21

18,19

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24,25,

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Pt fret.

Passim

15,16

Part 725

§ 725.545(c)

Part 727

727.203

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H.R. Rep. No.

eoeereeneeseeeevrseeeeeeneeeeeeeeeeeeeee

eoeeeoeeeeeeeeeeeeeeeeevaeeeeeeeeeeeeeee

727.203 (a) (1)

727.203 (b) (1)

727.203 (b) (2)

727.203 (b) (3)

727.203 (b) (4)

1048,

BE aha ba CI ed a ee eld a gan

92d Cong.,

- vii -

2d Sess.

PSO7R) 25 0

Page(s)

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No. 89-1696

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

PEABODY COAL COMPANY AND

OLD REPUBLIC INSURANCE COMPANY,

Petitioners

Vv.

HUBERT C. TAYLOR AND DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents

os ———— es

==> = ee

BRIEF IN OPPOSITION TO A

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

A. The Black Lung Benefi t And nteri sumptions

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

(1982 and Supp. V_ 1987) (the *“Act”), and implementing

regulations, 1 coal miners who are or are presumed to be totally

1 The-~two principal regulatory provisions here are 20

C.F.R. § 410.490 and 20 C.F.R. § 727.203. We often refer to them

by their popular names: the “HEW interim presumption” or the “HEW

interim provision” (§ 410.490) and the “DOL interim presumption”

or the “DOL interim regulation” (§ 727.203). We sometimes refer

to the four “rebuttal provisions” of the DOL interim regulation

(at §§ 727.203(b)(1)-(b)(4)) as the “§ (b)(1),"% “§ (b)f2),"% "§

(b)(3),"% or “§ (b)(4)” rebuttal provisions. When we cite other

regulatory provisions of 20 C.F.R. defining eligibility for black

lung benefits, we usually omit the 20 C.F.R. reference. Except

when we otherwise indicate, all citations to 20 C.F.R. are to the

1989 edition.

disabled due to “pneumoconiosis” 2 are entitled to the benefits

the Act provides. Pittston Coal Group _v. Sebben, __ U.S.

, 109 S. Ct. 414, 418 (1988).

The Sebben Court reviewed the legislative and regulatory

history surrounding the adoption of the HEW interim provision at

§ 410.490 and the DOL interim regulation at § 727.203. 109 Ss.

ct. at 417-19. As relevant here, the Secretary of Labor adopted

the DOL interim regulation in an effort to comply with Section

402(f)(2) of the Act, 30 U.S.C. 902(f)(2), added by elie Black

Lung Benefits Reform Act of 1977, Pub. L. 95-239, 92 Stat. 95

(1978). In Section 402(f)(2), Congress required the Secretary of

Labor to develop and apply, to pending, newly filed, and some

previously adjudicated claims, interim eligibility standards

setting forth “"criteria...not...more restrictive than the

criteria applicable to a claim filed on June 30, 1973” (j,e.,

than the criteria applicable to a claim adjudicated under the HEW

interim provision at § 410.490). See Sebben, 109 S. Ct. at 418.

In Sebben this Court held that one requirement for

triggering, or invoking, the DOL interim presumption violates

Section 402(f) (2). 109 S. Ct. at 419-23. However, the Sebben

Court expressly declined to address the validity and scope of the

rebuttal provisions of the DOL interim regulation. Id. at 423.

These rebuttal provisions include two that are not found in the

. The Act defines “pneumoconiosis” as “a chronic dust

disease of the lung and its sequelae, including respiratory and

pulmonary impairments, arising out of coal mine employment.” 30

U.S.C. § 902(b).

HEW interim provision: § 727.203(b)(3), which permits rebuttal!

by proof that the miner’s disability or death did not arise ir

whole or in part from coal mine employment, and § 727.203(b) (4

which permits rebuttal by proof that the miner does not or did

not have pneumoconiosis. In addition, the Director currently,

interprets the DOL rebuttal provision at § 727.203(b) (2 tc

permit the opponent of a claim to rebut the DOL presumptior

solely by making a medical showing that the miner is physically

able to do his usual coal mine work. Jn contrast, the similarly-

worded HEW rebuttal provision at § 410.490(c)(2}) has beer

interpreted to require not only such a medical showing but alss«

an economic showing that the miner’s usual coai mine work is

available to him in the immediate area of his residence. Haywood

v. Secretary of Health and Human Services, 699 F.2d 277 (6th Cir

1983).

B. This Case.

Hubert Taylor was a coal miner. Ap. 3la. He worked in the

mines for 42 years, from 1934 to 1976, in a variety of jobs. i;

The last job that he performed over a substantial period of time

was that of “ramp operator.” Id.

Taylor filed a claim for benefits under Part C of the Act or

June 6, 1977. Ap. 29a. The Director approved the claim, but the

responsible operator, Peabody Coal Company (“Peabody”), appealed

and a hearing before an Administrative Law Judge ("ALJ") was

held. Ap. 30a. Based on Taylor’s 42 years of coal mine work and

nine x-ray readings of his lungs that were positive for

pneumoconiosis, the ALJ found that Taylor successfully invoked

the presumption at § 727.203(a)(1) that he was totally disabled

due to pneumoconiosis. Ap. 36a. The ALJ also found that the

presumption was not rebutted under § 727.203(b)(1), §

727.203(b) (3), or § 727.203(b) (4). Ap. 37a-38a. However, the ALJ

concluded that the presumption was rebutted under § 727.203(b) (2)

by medical evidence that, “from a pulmonary standpoint,” Taylor

could perform his “”usual coal mine employment.” Ap. 38a.

Section 727.203(b)(2) provides for rebuttal if “it is established

that the individual is able to do his usual coal mine work or

comparable and gainful work.”

The ALJ then proceeded to adjudicate Taylor’s claim under

the HEW interim provision at § 410.490. Finding that Taylor

invoked that presumption under § 410.490(b), the ALJ concluded

that Peabody had not rebutted the presumption under either of the

rebuttal provisions at § 410.490(c). Ap. 39a. The ALJ ruled

that the rebuttal provision at § 410.490(c)(2), in contrast to

its companion provision in the DOL regulation at § 727.203(b) (2),

requires the opponent of a claim to show that the miner is not

“vocationally disabled” -- i.e., that the miner’s usual coal mine

work is available in the immediate area of his residence. Ap.

39a (citing Haywood v. Secretary of Human Services, 699 F.2d 277

(6th Cir. 1983)). Because the record lacked any evidence

rebutting Taylor’s claim under that standard, the ALJ determined

that he was entitled to benefits under § 410.490. Ap. 39a.

Peabody appealed to the Benefits Review Board, which

reversed the ALJ’s award of benefits. Ap. 25a-27a.

Pursuant to 33 U.S.C. § 921(c) (as incorporated by 30 U.S.C.

§ 932(a)), Taylor appealed to the Seventh Circuit, which

initially affirmed the Board’s decision. Ap. 19a-22a ("Taylor

I”). Citing its then recent decision in Strike v. Director,

O.W.C.P., 817 F.2d 395 (7th Cir. 1987), the Seventh Circuit

egreed with the Board that the ALJ should not have applied the

HEW interim provision at § 410.490 to Taylor’s claim. Ap. at 2la-

22a.

Taylor sought review of the Seventh Circuit’s decision in

this Court pursuant to 28 U.S.C. § 1254(1) (1964). Ap. 23a. On

December 12, 1988, this Court granted Taylor’s writ of

certiorari, vacated the Seventh Circuit’s decision, and remanded

the case to that court for “further consideration in light of”

its recent ruling in Sebben. Id.

On remand, the Seventh Circuit reversed the Board’s decision

and reinstated the ALJ’s award of benefits to Taylor. Ap. 3a-l4a

(*“Taylor II”). In the court’s view, Sebben established that

Section 402(f)(2) of the Act was meant to prohibit the Secretary

of Labor from imposing on Section 402(f)(2) claimants any more

restrictive criteria, whether “evidentiary” or “adjudicatory,”

than those found in the HEW interim provision, including criteria

“applied...on rebuttal.” Ap. lla. Focusing on § 727.203(b) (2),

the DOL rebuttal provision that the Board had applied in

overturning Taylor’s award, the court held that reading the DOL

interim regulation to permit rebuttal by ‘”medical evidence

{alone}” would violate Section 402(f)(2) of the Act. Ap. 9a-

lla. This was because § 727.203(b)(2)’s companion HEW rebuttal

provision, in addition to requiring a medical showing that the

miner is able to do his usual coal mine work, also requires a

non-medical showing of such ability, Ap. la-2a (denying petitions

for rehearing), Ap. 9a-1lla, *% apparently a showing that jobs

demanding such work are actually available in the immediate area

of the miner’s residence. 30 U.S.C. § 902(f)(1)(A)? 20 C.F.R. §

410.412(a) (1).

Neither the ALJ, the Board, nor the panel in Taylor I ever

suggested that Peabody might be able to rebut the DOL interim

presumption under any rebuttal provision other than §

727.203(b) (2). Ap. 18a-22a, 25a-27a, 29a-40a. Nor did Peabody or

the Director even argue to the court of appeals that Peabody

3 According to Peabody, the court of appeals erred by

construing Section 402(f)(2) to make medical evidence non-

probative under the DOL interim regulation. Pet. at 8-14.

Respondent Taylor agrees that such a construction of Section

402(f)(2) would be erroneous. However, the court of appeals’

order denying rehearing emphatically rebuffs any notion that

Peabody has read the court correctly. In their petitions for

rehearing, both Peabody and the Director argued that the court of

appeals wrongly construed the HEW rebuttal provisions at §§

410.490(c)(1) and (c)(2) to "foreclose the use of medical

rebuttal evidence” and that such construction, under the

“not...more restrictive” mandate of Section 402(f)(2), carried

with it the incorrect holding that medical rebuttal evidence was

entirely foreclosed under the DOL interim regulation as well.

Ap. la. But the court’s order denying rehearing explained that

Peabody and the Director had read the court’s opinion

incorrectly: “”[Wje note that the precise extent to which the HEW

regulations allowed rebuttal was not at issue in this case. We

held that to the extent the Department of Labor regulations allow

rebuttal--when HEW’s do not--the Labor rules are invalid. We did

not hold that there are no conceivable circumstances under which

HEW rules might allow -edical rebuttal.” Ap. 2a.

-6-

might be able to rebut the presumption under any rebuttal

provision except § (b)(2). 4 Nonetheless, the court also

elected to discuss the third and fourth DOL rebuttal provisions

at §§ (b)(3) and (b) (4). According to the court, because §§

(b) (3) and (b)(4) lack parallels under the HEW interim

provision, they run afoul of the “not...more restrictive” mandate

of Section 402(f)(2). Ap. lla. The court also expressed its view

that striking §§ (b)(3) and (b)(4) from § 727.203(b) would not

violate the due process rights of employers like Peabody. A. 1lla-

13a.

Peabody and the Director both filed petitions for rehearing

or rehearing en banc, challenging, inter alia, the court of

appeals’ holding with respect to the types of evidence that are

relevant for rebuttal under § 727.203(b)(2). Peabody Pet. for

Rehearing at 6-7 (No. 86-2590); Dir. Pet. for Rehearing at 8-11

(No. 86-2590). According to the Director, the court of appeals

erred in holding that rebuttal under the “usual coal mine work”

clause of § 727.203(b) (2) must be based on vocational as well as

medical evidence. Dir. Pet. for Rehearing at 8-11 (No. 86-2590).

On February 1, 1990, the court denied both petitions. Ap. la-2a.

Peabody filed a timely petition for certiorari, invoking

4 In a footnote to its brief in Taylor I, Peabody

correctly observed that § (b)(3) sets forth the requirement that

a claimant’s disability must be attributable, at least in part,

to pneumoconiosis. Brief for Respondents at 10 and n.5, Taylor v.

Peabody Coal Co., 892 F.2d 503 (7th Cir. 1989) (No. 86-2590).

(citing cases). But Peabody never contended that it could

establish rebuttal under that subsection; and indeed it could

not. See p.9 infra.

this Court’s jurisdiction under 28 U.S.C. § 1254(1) (1964).

REASONS WHY THE COURT SHOULD DENY THE

PETITION FOR A WRIT OF CERTIORARI

The petition Peabody filed here should be denied because the

judgment below is correct without regard to either question that

the petition presents. See Section A infra. Peabody’s petition

presents two questions, a statutory one and a constitutional one.

Peabody claims that a circuit conflict exists with respect to the

statutory question, which involves the validity and scope of the

rebuttal provisions of the DOL interim regulation (§§

727.203(b)(1)-(b)(4)). Pet. at 8-14. The Director is more

precise, correctly pointing out that the DOL interim regulation’s

rebuttal provisions are the subject of two separate circuit

conflicts, one involving the scope of § 727.203(b)(2) ("the §

(b)(2) issue”) and the other involving the validity of §§

727.203(b) (3) and (b)(4) ("the §§ (b)(3)/(b) (4) issue”). Dir.

Op. Cert. Br. at 6-7, 9-11. No circuit conflict exists with

respect to the constitutional question, Pet. at i, * a question

that, in any event, would not arise unless this Court granted

review of the §§ (b) (3) /(b) (4) issue and then resolved that issue

against the coal companies.

However, if this Court does not deny the petition in its

entirety, and grants review of the §§ (b)(3)/(b)(4) issue in one

of the pending cases presenting that issue, then the Court should

5 Indeed, the court below is the only court to have passed

on the constitutional question that Peabody presents for review

or any related constitutional question.

- 8 -

grant review here of the § (b)(2) issue, a narrower statutory

issue than the petition raises. See Section B infra. Granting

review of the § (b)(2) issue here would make review of the DOL

rebuttal provisions complete if the Court also grants review of

the separate §§ (b)(3)/(b)(4) issue in one of the pending cases.

A. The Court Should Deny The Petition Here In Its Entirety

Because The Judgment Of The Seventh Circuit Is Correct

Without Regard To Either Question That The Petition Raises

The facts of Hubert Taylor’s claim entitle him to benefits

even when all four rebuttal provisions of the DOL interim

regulation are applied to his claim and ioe given the

constructions that are the least favorable to claimants that the

courts have adopted. Consequently, even if this Court were to

overturn the decision below, Taylor would still prevail on his

claim for black lung benefits. The judgment of the Seventh

Circuit is correct without regard to the statutory question

Peabody has framed or to the related constitutional question

Peabody also presents. Thus, this case is not a suitable vehicle

for resolving either of these questions.

The ALJ found that the evidence in this case does not rebut

the DOL interim presumption under three of its four rebuttal

provisions: §§ (b) (1), (b)(3), and (b) (4). Ap. 37a-38a. And

neither Peabody nor the Director suggested in the court below

that the ALJ erred with respect to any of these findings.

Indeed, the Director now concedes the correctness of the ALJ’s

findings with respect to §§ (b)(3) and (b) (4). Dir. Op. Cert.

Br. at 10 n.3. ©

The remaining DOL rebuttal provision, § (b)(2), provides for

rebuttal if “in light of all relevant evidence it is established

that the individual is able to do his usual coal mine work or

comparable and gainful work.” § 727.203(b)(2). The ALJ in fact

found that Peabody did establish rebuttal under the “usual coal

mine work” clause of this provision based on a non-examining

physician’s statement that, “from mona int, the

Claimant could perform his usual coal mine employment.” Ap. 38a

(emphasis added). The ALJ relied on the then prevailing

interpretation of that provision that the Benefits Review Board

had set forth in Sykes v. Itmann Coal Co., 2 BLR 1-1089 (1980).

Ap. 37a-38a (citing Sykes). In Sykes the Board had held that §

(b) (2) rebuttal could be established by a showing that the miner

did not have any respiratory or pulmonary impairments that were,

by themselves, totally disabling.

Regardless of whether the rationale of the court below is

correct, ’ the court’s conclusion that the ALJ erred in finding

rebuttal under § (b)(2) is surely correct. The Board’s Sykes

standard on which the ALJ relied has been completely discredited,

6 Peabody cannot rebut under § (b)(1) either. That

provision provides for rebuttal if the opponent of the claim can

show that the “individual is, in fact, doing his usual coal mine

work or comparable and gainful work.” Taylor last worked in

1976, Ap. 3la, eight years before his administrative hearing.

Ap. 29a.

7 Respondent Taylor agrees with the court’s holding in his

case that § (b)(2) rebuttal does not entail a purely medical

inquiry. See pp. 22-25 infra.

- 10 -

rejected by every court of appeals to have considered it. 8

Rather, the approved test that the courts have unanimously

adopted is simply whether or not the miner is able to engage in

his usual coal mine work; the question of causation (i.e.,

whether the miner’s disability was solely the result of

respiratory and/or pulmonary impairments) is irrelevant. See

cases cited in n.8 supra. Thus, as the Director himself has

conceded here, the ALJ applied the wrong test in finding the DOL

presumption rebutted under § (b) (2). Dir. Op. Cert. Br. at 12

n.5.

The record unequivocally establishes that Taylor prevails

even under the judicial reading of that approved test that favors

claimants the least--that § (b)(2) entails a purely medical

inquiry and rot also an inquiry into whether a claimant’s usual

coal mine work is actually available to him. Ramey v. Kentland

Elkhorn Coal Corp., 755 F.2d 485 (6th Cir. 1985); Taft v. Alabama

By-Products Corp., 733 F.2d 1518 (lith Cir. 1984); Director,

8 The Board’s decision in Sykes was itself ultimately

reversed in Sykes v. Director, O.W.C.P., 812 F.2d 890 (4th Cir.

1987). The words of § 727.203(b)(2) do not limit the inquiry

under this subsection to whether respiratory or pulmonary

impairments, rather than other types of impairment, disable the

miners. The Fourth Circuit stated: “”[the idea that a] causation

requirement may be imported into § 727.203(b)(2)...is belied by

the words of the regulation. Thus, Section 727.203(b)(2) is

concerned with the question of whether miners are _ totally

disabled for whatever reason. There is no inquiry into causation

in a proper § 727.203(b)(2) rebuttal.” Id. at 893-894. Following

Sykes, every court of appeals to consider the question has

agreed. Peabody Coal Co. v. Shonk, 906 F.2d 264 (7th Cir. 1990);

Maxtin—v._AlLabana—By-Products Corp. 864 F.2d 1555, 1557 (11th

Cir. 1989); Oravitz v. Director, O.W.C. ae 843 F.2d 738, 740 (3rd

Cir. 1988); York v. Benefits Review Board, 819 F.2d 134, 138 (6th

Cir. 1987).

- l1-

O.W.C.P. v. Beatrice Pochahontas Co., 698 F.2d 680 (4th Cir.

1983). The record do@s not include a single report or testimony

by any physician that Mr. Taylor was physically able to do his

usual coal mine work. Ap. 31a-39a. 9 Accordingly, Taylor should

prevail under § (b)(2) even if this Court ultimately determines

that the § (b)(2) rebuttal test entails a purely medical inquiry

so that the opponent of a claim need not also make an economic

showing that jobs requiring a miner’s usual coal mine work are

actually availabie to him.

Peabody seeks review here based on the contention that the

court of appeals wrongly, and in conflict with other circuits,

invalidated the third and fourth rebuttal provisions of the DOL

interim regulation (§§ (b)(3) and (b)(4)) and interpreted the

second rebuttal provision (§ (b)(2)) too favorably for claimants.

However, we have pointed out that Peabody could not establish

rebuttal under any of these provisions even if all of them were

applied to Taylor’s case and even if § (b)(2) were given the

existing judicial interpretation that is least favorable to

claimants. Thus, if this Court were to grant review in this case

to resolve either of the existing conflicts among the circuits,

see Section B infra, the Court would not need to reach the points

of the alleged conflicts. Accordingly, this Court should deny

9 One non-examining physician, based on his review of

Taylor’s hospital record and medical tests, testified that Taylor

“could perform his job from _a_ pulmonary standpoint.” Ap. 34a

(emphasis added). The ALJ relied on this statement to find §

(b) (2) rebuttal under the now discredited standard that the Board

adopted in Sykes.

- 12 -

the writ-of certiorari outright.

B. If The Court Does Not Deny The Petition Here In Its

Entirety, And Grants Review Of The Question Involving The

DOL Rebuttal Provisions At 20 C.F.R. §§ 727.203(b) (3)

And (b)(4) In One Of The Pending Cases Presenting That

Question, Then The Court Should Grant Review Here Of A

Narrower Statutory Question Than The Petition Raises, One

Involving The DOL Rebuttal Provision At 20 C.F.R. §

727.203 (b) (2)

1. The § (b)(2) Issue. While several other pending cases

are potential vehicles for resolving both the constitutional

question that Peabody raises and the circuit conflict concerning

the DOL rebuttal provisions at §§ 727.230(b)(3) and (b) (4), see

Dir. Op. Cert. Br. at 6-7, none of them is a vehicle for

resolving the separate circuit conflict concerning the DOL

rebuttal provision at § 727.203(b)(2). Indeed, none of them even

addressed any issue concerning the validity or the scope of §

(b) (2).

This case does present the question whether rebuttal under

the “usual coal mine work” clause of § (b)(2) requires a job-

availability inquiry. A conflict among the circuits as to this

question exists; but to our knowledge, this is the only case

pending before the Court that presents the question. We have

urged the Court to deny the petition here in its entirety. See

Section A supra. However, if the Court were to reject that

request, the question here would become whether the § (b) (2)

rebuttal question merits plenary review. 10 We submit that it

10 For the reasons stated by the Director in his response

here, Dir. Op. Cert. Br. at 12, the § (b)(2) question does not

carry with it any related constitutional question.

- 13 -

would, at least if the Court grants review of the §§ (b) (3)/

(b) (4) issue in one of the cases presenting that issue. 11

a. The conflict among the circuits involving § (b)(2) is

clear. The court of appeals below held that the § (b) (2)

rebuttal provision, if read to entail solely a medical inquiry

concerning whether a miner is physically able to do his usual

coal mine work, violates Section 402(f)(2) of the Act. Ap. 8a-

lla, Ap. la-2a (denying petition for rehearing). See also n.6,

supra; Haywood v. Secretary of Health and Human Services, 699

F.2d 277 (6th Cir. 1983) (rebuttal under “usual coal mine work”

Clause of § 410.490(c)(2) requires proof that such work is

actually available). In contrast, three other circuits have held

that Section 402(f)(2) of the Act allows the Secretary to require

solely a medical inquiry under § (b)(2) and does not direct the

Secretary to require the claimant’s opponent to make any economic

or other non-medical showing in order to rebut the presumption

under the “usual coal mine work” clause of § (b)(2). Ramey, 755

F.2d at 490; Taft, 733 F.2d at 1521-22; Beatrice Pocahontas, 698

F.2d at 682.

11 We recognize that it is unusual for a party to request

this Court to review a question on which he has prevailed in the

court of appeals, as Respondent Taylor has done here. However,

we emphasize that we are, in the first instance, requesting this

Court to deny Peabody’s petition in its entirety and that we only

request the Court to grant review of the § (b)(2) issue in this

case if the Court declines to deny Peabody’s petition. We base

this subsidiary request on our best assessment that it is the

course most likely to lead to the ultimate resolution of this

case in favor of Taylor’s estate.

- 14 -

b. Several factors make the § (b)(2) issue an important

one. First, the circuit conflict obviously creates substantial

administrative inequities in the administration of the black lung

benefits program. Moreover, tens, and perhaps hundreds, of

millions of doliars are at stake in this Court’s authoritative

resolution of the § (b)(2) rebuttal issue. Tens of millions are

at stake merely in pending cases governed by the DOL interim

regulation. 12 In addition, this Court’s resolution of the types

of inquiry pertinent to rebuttal under the “usual coal mine work”

clause of § (b)(2) would likely also inform, and perhaps be

decisive of, the judicial interpretation of the identical phrase

in 20 C.F.R. § 718.204(b) (1), one of the provisions of the DOL

permanent regulations that govern eligibility for all claims

filed on or after April 1, 1980. The DOL permanent regulations

govern far more claims than the DOL interim regulation does.

c. Presumably, Peabody believes that this Court should

grant review of the § (b)(2) issue in this case since the

statutory question Peabody presents for review in its petition

encompasses all of the rebuttal provisions of the DOL regulation,

including § (b)(2). However, the Director has stated his view

that granting review of the § (b)(2) issue in this case is

“not...necessary.” Dir. Op. Cert. Br. at 13. The Director sets

12 We estimate that between 500 and 1,000 claims governed

by the DOL interim regulation would be affected by this Court’s

resolution of the § (b)(2) rebuttal issue, putting at issue

between $60 million and $120 million. See Dir. Op. Cert. Br. at

9 and n.2 (estimating present value of a single black lung claim

at between $118,318 and $185,656).

- 15 -

forth several reasons for this view, none of which is persuasive.

First, the Director asserts that the § (b)(2) rebuttal

method is “not as important” as the §§ (b)(3) and (b)(4) methods

because §§ (b)(3) and (b)(4) “allow a broader range of rebuttal.”

Id. However, the estimated $60 million to $120 million at stake

in § (b)(2) cases alone certainly appears to be “important”

enough to deserve this Court’s review. Moreover, the Director’s

assertion fails to take into account the potential impact that an

authoritative resolution of the § (b)(2) issue could have on

claims governed by the DOL permanent regulations, all of which

must satisfy the “usual coal mine work” clause that §

718.204(b) (1) also includes.

In addition, the Director asserts that “[p]Jarties contesting

eligibility do not frequently succeed under” § (b)(2) and that §§

(b)(3) and (b)(4) “usually provide the only realistic

possibilities of rebutting a presumption of entitlement.” Id.

As support for this assertion, however, the Director cites only a

law review article, written by two attorneys who represent coal

companies, that sets forth no authority whatever for the

proposition. Indeed, at least one of the authors of the article

has represented coal companies that, in several reported court of

appeals cases alone, successfully defeated claims under the

prevailing interpretation of § (b)(2). E.g., Bartley v. L & M

Coal _Co., 901 F.2d 1311 (6th Cir. 1990); Adams _v. Peabody Coal

Co., 816 F.2d 1116 (6th Cir. 1987); Ramey, 755 F.2d at 486-488

- 16 -

and nn.3, 7. 123 His experience would appear to belie the

unsupported assertion in his article and suggests, consistent

with our experience, that many claims have been defeated under

the present interpretation of § (b)(2). See also, e.g., Peabody

Coal Co. v. Shonk, 906 F.2d 264 (7th Cir. 1990).

The Director also asserts that reviewing the § (b) (2) issue

would likely entail “unnecessary complications” for the Court

because the court below viewed rebuttal under the DOL interis

regulation “broadly.” Dir. Op. Cert. Br. at 13. However, the

Director has chosen not to specify what the “unnecessary

complications” might be. The decision below has not prevented

the Director from ascertaining, and informing the other parties

of, the precise contours of the § (b)(2) issue--in the Director’s

words, “whether a coal mine operator must present vocationa.

evidence showing that a claimant can obtain coal mine work ir

order to rebut the presumption.” Id. at 10. And nothing would

appear to prevent the parties here from briefing adequately for

the Court this well-defined legal issue.

Furthermore, in light of the Director’s acknowledgement that

this case “turns on” the § (b)(2) issue alone, jd. at 8, his

suggestion that the Court should hold this case while it reviews

the separate §§ (b)(3)/(b)(4) issue in one of the other pending

cases, jd. at 14, is both anomalous and illogical. We are aware

of no case in which any party has contended, much less in which

13° Mark E. Solomons, one of the authors of the the article

was counsel for the coal companies in Bartley, Adams, and Rame,

and is counsel of record for Peabody here as well.

-=i17 <-

any court has held, that § (b)(3) or § (b)(4) entails a

vocational inquiry or any other non-medical inquiry. Thus, there

is no reason to expect that this Court’s resolution of the §§

(b) (3)/(b) (4) issue would undermine the lower court’s conclusion

that rebuttal under § (b)(2) entails a non-medical inquiry

(presumably a vocational or economic inquiry), whether or not

such rebuttal entails a medical inquiry as well.

d. In urging this Court not to grant plenary review of the

§ (b)(2) rebuttal issue, the Director also notes that respondent

Hubert Taylor died on April 27, 1988 while his prior petition for

a writ of certiorari was pending, but that William Martin, the

representative of Mr. Taylor’s estate, did not file a motion to

substitute himself for Mr. Taylor until May 1990. Dir. Op. Cert.

Br. at 13-14. Citing Snyder v. Buck, 340 U.S. 15, 21 (1950), the

Director suggests--without making a directed argument to this

effect--that this case may have abated under Sup. Ct. R. 35.1

(formerly Sup. Ct. R. 40.1), which provides that "(t)he

substitution of a representative of the deceased***must be made

within six months after the death of a party, or the case shall

abate.” 14 If the Court were to accept this suggestion, then

presumably it would direct vacation of the court’s judgment

below. Such a result would defeat both Peabody’s request that

the Court grant its petition here and Taylor’s (Martin’s) request

14 This Court granted the prior petition for a writ of

certiorari on December 12, 1988. Ap. 23a. Accordingly, the case

was pending in this Court more than six months after Taylor’s

death without a substitution motion being filed.

- 18 -

that the Court deny the petition. See Section A supra.

When this case was before this Court in 1988, counsel for

Taylor did not file a motion for substitution within the six-

month period specified in former Sup. Ct. Rule 40.1 because he

overlooked that rule. He apologizes to this Court for his

oversight, which he sought to rectify by filing a substitution

motion promptly after a repesentative of Taylor’s estate was

appointed. However, the Director’s suggestion that this case

should abate is completely without merit.

To begin with, Snyder is wholly inapposite here, both

because it construes Section 11(a) of the Judiciary Act of 1925,

43 Stat. 941, 28 U.S.C. § 780 (1946) (governing substitutions for

public officers ceasing to hold office), not Sup. Ct. R. 35.1 or

any of its predecessors (governing substitutions for parties

other than public officers), and because it is a mandamus

case. 15 Much more enlightening is Anderson v. Yungkau, 329 U.S.

15 The plaintiff in Snyder sought a writ of mandamus to

compel a federal official to pay her a widow’s allowance. The

official retired, and neither party moved to substitute the

official’s successor within the six-month period that the statute

allowed for substitution. In holding that the action abated, the

Court enforced the entirely reasonable congressional

determination that, when no timely substitution is made for a

retired federal official against whom mandamus is sought, then a

court should conclude that the action is no longer necessary

because the successor official must have been willing to

discharge the duty that the retired official had allegedly

refused to perform. However, the circumstances that prevail in

this suit for statutory black lung benefits are quite different,

since the Director has continued to defend both his decision to

deny Taylor benefits and the challenged rules that animated that

denial. Accordingly, any conclusion that the controversy between

the parties here might no longer exist, would be entirely

unreasonable. Similarly, unlike Snyder, here it would be

unreasonable to presume that the estate no longer desires the

- 19 -

482 (1947). There, this Court addressed the two-year

substitution period in former Fed. R. Civ. P. 25(a)(1), 126

which, like current Sup. Ct. R. 35.1, did govern substitutions

for parties who were not public officers. And the Court

construed the two-year period there as a statute of limitations.

329 U.S. at 485. 17 Significantly, reliance on statutes of

limitations can be waived by parties, Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 398 (1985), which is precisely what

happened here. Peabody, the party who is liable for payment of

Taylor’s claim to benefits, has expressly waived any reliance on

black lung benefits Taylor sought since the statutory and

regulatory scheme here--42 U.S.C. § 404(d), incorporated by

reference into 30 U.S.C. § 923(b); 20 C.F.R. § 725.545(c)--

provides both that Taylor’s claim for benefits survives him and

designates the priority order of successor beneficiaries. See

, 212 F.2d 284, 292 (9th Cir. 1954) (even when

no timely motion to substitute has been made, abatement under

former Sup. Ct. R. 19(4)} and § 11(a) of the Judiciary Act of 1925

is appropriate only when it is reasonable to presume that

continuation of the litigation would result in a judgment that

“would not be effective”).

16 Former Fed. R. Civ. P. 25(a)(1) provided, in relevant

part that:

"If a party dies and the claim is not’ thereby

extinguished, the court within 2 years after the death

may order substitution of the proper parties. If

substitution is not so made, the action shall be

dismissed as to the deceased party.”

17 The text of Sup. Ct. R. 35.1 informs the conclusion

that the specified six-month time period is a statute of

limitations, since, under the circumstances described in the

rule, it provides for an additional “designated time” beyond the

six month period in which the substitution may be made. See 42

U.S.C. § 405(g) (requiring that a civil action be filed within

sixty days of final administrative decision or such additional

time as Secretary of HHS may permit); Salfi v. Weinberger, 422

U.S. 749, 763-64 (1975) (construing 60 day period in § 405(g) as

a statute of limitations).

- 20 -

the six-month limitations period in Sup. Ct. R. 35.1. See

Petitioners’ Memorandum In Response To Motion To Substitute Party

(urging that Martin’s motion to substitute be granted nunc pro

tunc as of the date of Taylor’s death). We have found no case

holding that, under the rules of this Court, a party’s failure to

make a timely substitution motion for a party who was not a

public officer oemunttated abatement where the party in whose

favor the abatement would have run has waived his timeliness

(statute of limitations) objection.

Moreover, assuming that the six-month substitution period in

Sup. Ct. R. 35.1 is a statute of limitations, as Anderson

suggests it is, then its application must also be guided by

“equitable” considerations. Bowen v. City of New York, 476 U.S.

467, 479 (1986). Such equitable considerations strongly counsel

against abatement of this case, whether the result of abatement

here would be Y"only” significant additional delay in the

litigation of this case or the denial of benefits to Taylor and

his estate, or both. Taylor’s claim has already been pending for

over 13 years, has been twice before the court of appeals, and

is now before this Court for the second time. In addition,

because Peabody has waived any reliance on the abatement rule--

indeed, it has urged this Court to allow this litigation to

proceed--the Court can disregard any injury that Peabody may

incur because the action is allowed to continue in this Court.

Moreover, the Director has effectively conceded that the facts of

Taylor’s claim would entitle him to the black lung benefits he

- 21-

sought, see pp. 9,11 supra, and neither Taylor nor his estate has

done anything to suggest that this Court should not honor

Congress’ intent that eligible claimants should receive black

lung benefits. Both Peabody and Taylor are urging that this

Court’s decision finally resolve this case on its merits. Under

these circumstances, they should be afforded such a decision, if

at all possible.

e. Of the four circuits that have squarely addressed the §

(b) (2) rebuttal issue in published opinions, only the court below

has reached the correct conclusion. It relied on Section

402(f)(2) of the Act for its interpretation that § (b)(2) is not

limited to a purely medical inquiry concerning a miner’s ability

to do his usual coal mine work. In Sebben, this Court held that,

under Section 402(f)(2)’s “not...more restrictive” directive, the

“criteria” the Secretary of Labor applies to Part C claims under

the DOL regulation must be at least as favorable to the

individual claimant as the “criteria” applicable to a claim filed

on June 30, 1973 (e.g., under the HEW interim provision). Sebben,

109 S. Ct. at 420-22. Thus, the central issue here is the

threshold question--whether the HEW rebuttal provision at §

410.490(c)(2), which parallels the rebuttal provision at §

727.203(b) (2), permits rebuttal solely by medical evidence

establishing that a miner can physically do his usual coal mine

work.

The only court of appeals that has squarely addressed this

- 22 -

question concerning § 410.490(c)(2) concluded that the party

opposing the claim “cannot rebut the presumption of total

Gisability [under § 410.490(c)(2)] unless he demonstrates that

the claimant is not vocationally disabled in the immediate area

around his home.” Haywood, 699 F.2d at 285. In the Haywood

court’s view, HEW’s separate regulation at § 410.412(a) (1)

requires this conclusion. Id. 18 The court was correct. Section

410.412(a)(1) defines the “criteria” of § 410.490(c)(2), so that

under Sebben principles it also defines the “criteria” that

establish the “"restrictivity” floor for criteria under §

727.203(b) (2). Section 410.412(a)(1) has this function because,

being cross-referenced in § 410.490(c)(2), it expressly defines

the phrase “usual coal mine work or comparable and gainful work”

in § 410.490(c)(2). Section 410.412(a)(1) defines that phrase to

include the requirement that such work be “gainful work in the

immediate area of his [the miner’s] residence.” § 410.412(a)(1).

Consequently, to establish that a claimant is able to do his

“usual coal mine work” or other “comparable and gainful work,”

18 Section 410.412(a) provides:

“({a] miner shall be considered totally disabled due to

pneumoconiosis if: (1) His pneumoconiosis prevents him

from engaging i j j j

j requiring the skills and abilities

comparable to those of any work in a mine or mines in

which he previously engaged with some regularity and

over a substantial period of time... .”

(emphasis added). This provision actually has statutory force

and effect for all Part C claims because Section 402(f)(2) of the

Act, through its “not...more restrictive” mandate, incorporated §

410.490, including its cross-references to § 410.412(a) (1).

- 23-

the opponent must show at least that “gainful work” of both types

exists “in the immediate area of his [the miner’s] residence” as

well as that the miner is physically able to do it.

Section 410.412(a)(1) implements Section 402(f)(1)(A) of the

Act, which the 1972 amendments added to the statute. Pub. L. No.

92-303, § 4(a), 86 Stat. 153. Section 402(f)(1)(A) provides:

[A] miner shall be considered totally disabled when any

respiratory and pulmonary impairment or impairments

resulting from employment in a mine or mines prevents

him from engaging in gainful employment requiring the

skills and abilities comparable to those of any

employment in a mine or mines in which he has

previously engaged with some regularity over a

substantial period of time.

30 U.S.C. § 902(f)(1) (A). Like § 410.412(a)(1), its implementing

regulation, Section 402(f)(1)(A) of the Act does not distinguish

“usual coal mine work” from “comparable and gainful work.”

Rather, Section 402(f)(1)(A) sets forth but a single category of

“qualifying” work, work that qualifies ar otherwise eligible

miner for benefits because he is unable to perform it. Thus,

when § 410.490(c)(2) refers to a miner’s “usual coal mine work or

comparable and gainful work” and then cross-references §

410.412(a)(1) to define that term, the phrase “usual coal mine

work,” which nowhere appears either in § 410.412(a)(1) or in

Section 402(f)(1)(A) of the Act, must be understood simply as one

type of “comparable and gainful work.”

The central point in this context is that Section

402(f)(1) (A) of the Act and § 410.412(a)(1) set forth a single

category of qualifying work that must be “gainful”--j.e., offer

an individual the opportunity to earn income. But work cannot

- 24 -

possibly meet this criterion unless it actually exists. And §

410.412(a)(1) adds the further requirement that such qualifying

work must exist in the “immediate area of [the miner’s}]

residence.” Accordingly, when Section 402(f)(1)(A) of the Act

and § 410.490(a)(1) are scrutinized, claims in which the miner

invokes the § 410.490 presumption may not be denied solely by a

medical showing that the claimant is physically able to do his

“usual coal mine work” or other “comparable and gainful work”

absent an accompanying economic showing that both types of work

exist in the immediate area of his residence,

The legislative history of the 1972 amendments confirms this

understanding of the “criteria” applicable both to Part B claims

and, by virtue of the later amendment adding Section 402(f)(2) to

the Act, to Part C claims. In particular, in the Conference

Report accompanying the 1972 amendment to the _ statutory

definition of “total disability”, the conferees stated that a

claimant should not be found to be totally disabled if he is “in

fact engaging in substantial work involving skills and abilities

comparable to those of any mine employment [he worked at

regularly]...or if it is clearly demonstrated that he is capable

of performing such work and such work is available to him in the

immediate area of his residence.” H.R. Rep. No. 1048, 92d Cong.,

2d Sess. 7 (1972) (emphasis added). 19

19 The circuit court decisions holding, contrary to the

court of appeals below, that rebuttal under the “usual coal mine

work” clause of § (b)(2) only requires a medical showing--

Ramey, Taft, and Beatrice Pocahontas--all ignore or slight §

410.412(a)(1), Section 402(f)(1) of the Act, and the legislative

- 25 -

In sum, if the Court does not deny Peabody’s petition

in its entirety, and grants review of the §§ (b)(3)/(b)(4) issue

in one of the pending cases raising that issue, then the Court

should grant review in this case of the § (b)(2) issue.

2. ssue. The Director adequately

describes the separate circuit conflict concerning the §

(b) (3)/(b) (4) issue. Dir. Op. Cert. Br. at 6-7. Although the

court below addressed the §§ (b)(3)/(b)(4) issue and the

constitutional issue related to it, we submit that the court’s

conclusions with respect to those issues are merely dicta. 20

history. All of these cases were incorectly decided for several

reasons, including those stated by Judge Jones in his separate

opinion in Ramey, 755 F.2d at 493-99.

Taft, and Beatrice Pocahontas also ignore or slight

the fact that the Director’s former position was that rebuttal

under the “usual coal mine” work clause of § (b)(2) requires an

economic showing. At least as early as 1981, the Director’s

position was that an opponent of a claim could not rebut under

the “usual coal mine work” clause of § (b)(2) solely by showing

that the miner was physically able to perform such work. The

Director’s position was that the opponent also had to show that

such work was “available” to him, which, according to the

Director, meant not only that such work existed “in the immediate

area of his residence,” § 410.412(a)(1), but also that “the miner

would have a reasonable opportunity of being hired” for such

work. Blankenship v. Beatrice Pocahontas Co., 3 BLR 1-773, 781

(1981) (describing, but rejecting, the Director’s understanding

that rebuttal under the “usual coal mine work” clause of § (b) (2)

required such a showing), aff’d sub nom. Director, 0O.W.C.P. v.

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

Director reversed his position only after, and solely because,

two circuits rejected it. Brief for Director at 8,

Island Creek Coal Co., 723 F.2d 908 (Table) (6th Cir. 1983) (unpublished).

20 As we have noted at pp. 6-7 supra, neither the ALJ, the

Board, the panel in Taylor I, Peabody, nor the Director has

suggested that Peabody might be able to defeat Taylor’s claim

under any rebuttal provision other than § 727.203(b) (2). Ap.

- 26 -

This concern is a factor weighing against the Court’s selection

of this case as a vehicle for resolving the §§ (b) (3)/(b) (4)

issue. If the Court does not deny Peabody’s petition here in its

entirety, and decides to grant review of the §§ (b) (3)/(b) (4)

issue in one of the pending cases, we submit that Bethenergy

Mines, Inc. v. Director, O.W.C.P., 890 F.2d 1295 (3d Cir. 1989),

petition for cert. filed sub nom. Pauley v. Bethenergy Mines,

Inc., 58 U.S.L.W. 3725 (U.S. May 7, 1990) (No. 89-1714), is the

most appropriate vehicle for resolving that issue and the

constitutional issue related to it. 21

29a-40a; Ap. 25a-27a; Ap. 18a-22a. See also Dir. Op. Cert. Br.

at 8 (*[T)his case turns on a narrow issue relating to the second

rebuttal provision [§(b)(2)]”). Consequently, resolving Taylor’s

case did not require the court of appeals to decide whether

Peabody had successfully defeated Taylor’s claim under any of the

other rebuttal provisions. Nor did the court have to decide the

related constitutional issue. Thus, the court’s discussions of

§§ (b) (3) and (b)(4) and of the related constitutional issue are

merely dicta. Cohens v. Virginia, 19 U.S. 6 (Wheat) 264, 399-400

(1821).

To be sure, in Meyer v. Zeigler Coal Co., 894 F.2d 902 (7th

Cir. 1990), ition for cert iled, U.S.L.W. (U.S.

Apr. 27, 1990) (No. 89-7383), the court stated that it had “held

in Taylor [II]...that § 727.203(b)(3) was invalid because it

violated 30 U.S.C. § 902(f)(2).” Id. at 905 n.3. However,

whether a court’s statement is holding or dicta should be

determined not by the court’s characterization of the statement

but by whetner the court needed to decide the issue in question

to resolve the case. United States v. Crawley, 837 F.2d 291,

292-93 (7th Cir. 1988).

21 we are informed that petitioner Pauley in the Bethenergy

Mines case (No. 89~1714) will file a reply to the briefs of the

respondents in that case and will discuss, among other things,

the reasons for her view that Bethenergy Mines is the most

appropriate vehicle for resolving the §§ (b)(3)/(b) (4) issue and

the constitutional issue related to it. We agree with what we

understand the substance of that discussion will be. In

addition, the Bethenergy Mines case is also one of the two

pending cases that the Director calls “the strongest candidates

- 27 -

CONCLUSION

The Court should deny Peabody’s petition for a writ of

certiorari in its entirety. If the Court does not deny the

petition here in its entirety, and grants review of the §§

727.203(b) (3)/(b) (4) issue in one of the pending cases presenting

that issue, then the Court should also grant review in this case

of the § 727.2063(b)(2) issue set forth as question 2 in this

brief in opposition.

Respectfully submitted,

PRL IL Ay Ge,

Jack N. VanStone

Jack N. VanStone (Counsel of Record)

VanStone & Associates

P. O. Box 3115

Tenth & Sycamore Streets

Evansville, Indiana 47730

(812) 426-2811

Theodore Lockyear

Lockyear & Kornblum

550 Sycamore Street

P.O. Box 3515

Evansville, Indiana 47734

(812) 422-1199

Attorneys for Respondent Hubert C. Taylor

for plenary consideration.” Dir. Op. Cert. Br. at 15 n.7. We

disagree with the Director concerning his other “candidate,”

-, 895 F.2d 173 (4th Cir. 1990),

, 59 U.S.L.W. 3055 (U.S. July 17, 1990)

(No. 90-114). In our view, Dayton is not an appropriate vehicle

for resolving the §§ (b)(3)/(b)(4) issue for reasons that, we

understand, will also be set forth in petitioner Pauley’s reply

in the Bethenergy Mines case.

- 28 -

CERTIFICATE OF SERVICE

Jack N. VanStone hereby certifies that he is a member of the

Bar of the Supreme Court of the United States, is the counsel of

record for respondent Hubert C. Taylor herein, and that on August

8, 1990, he served three (3) copies of the attached Brief of

Respondent Hubert C. Taylor In Opposition upon:

Mark E. Solomons

Laura Metcoff Klaus

ARTER & HADDEN

Suite 400

1919 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Peter A. Gabauer

Robert F. Stauffer

William E. Hynan

National Coal Association

1130 17th Street, N.W.

Washington, D.C. 20036

Kenneth W. Starr,

Solicitor General

Christopher J. Wright

Deyartment of Justice

Washington, D.C. 20530

Service was made by depositing these copies in a United States

mailbox in Evansville, Indiana, first class postage pre-paid,

Hh, Sie _

SG: N. VanStone, Esq.

Counsel of Record for

Respondent Hubert C. Taylor

properly addressed to these parties.

VANSTONE & ASSOCIATES

P.O. Box 3115

Tenth & Sycamore Streets

Evansville, Indiana 47730

(812) 426-2811

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.