Petition for Writ of Certiorari — Brown v. Penn Central Transportation Co.

lan Bur Court, U.S.

| FILED

OS’1116 0) 6 1993

No.

DFFICE OF THE cifpK

Supreme Court of the United States

October 1993 Term

Willies Brown

Petitioner,

vs.

Penn Central Transportation Co. Director,

OWCP U.S. Dept of Labor

U.S. Court of Appeals for the Third Circuit

Case No. 87-BLA 1264 OWCP No. 260-001-1809

BRB No. 89-1662-BLA Case No. 92-3011

Respondents

Petition of Writ of Certiorari

To The United States Court of Appeals

For the Third Circuit

State of Pennsylvania

Petiion for Writ of Certiorari

Belinda S. Morton

Counsel of Record for Petitioner.

? a

Pro se ps Bho ai

Willie J. Brown

312 Harper Heights Road

Beckley, WV 25801

(304) 253-8536

SEP 07 1993

Question Presented

Administrative Law Judge Ben L. O’Briew. of the United

States, at the hearing granted claimant thirty 30) days leave

to submit rebuttal testimony as to Dr. Zaidivar’s medical

report within thirty (30) days. No such testimony was

received within the thirty (30) days peried. Claimant’s

counsel then submitted the medical report of Dr. Floresca on

September 28, 1°38, dated September 21, 188. Outside of

the thirty (30) days time period, however, as the submitted

report is probative as to the contested issues. It is marked

and admitted into evidence as claimant’s exhibit No. 2.

Additionally, closing arguments were received on behalf

of both claimant an:: employer.

The record is now closed.

ISSUES

1. Whether the claimant has pneumoconiosis as defined

by the act and regulations.

2. Whether claimant’s pneumoconiosis arose out of coal

mine employment.

3. Whether claimant is totally disabled.

4. Whether claimant’s disability is due to pneumoconiosis.

5. Whether Penn Central Transportation Company is a

responsible operator.

Finding of fast, and conclusions of law.

Dated: Apri! 28, 1989.

Page i

a

PARTIES TO THE PROCEEDING

Ms. Sally Mrvos, Court Clerk; U.S. Court of Appeals the

Third Circuit.

Mr. Steven Breeskin, Deputy Commissioner, U.S. Dept. of

Labor. |

Administrative Law Judge, Ben L. O’Brien, U.S. Dept. of

Labor.

Lisa L. Lahrman, Executive Counsel, Clerk of the i

Benefits Review Board, U.S. Dept. of Labor.

Betty J. Stage, Chief Administrative Appeals Judge.

Roy P. Smith, Administrative Appeal Judge.

Leonard N. Lawrence, Administrative Law Judge for

Benefits Review Board.

Ms. Kathleen Grady, Deputy Clerk, and Judges.

Present: Sloviter, Chief Judge, Becker, Stapleton,

Greenberg, Hutchinson, Scirica, Cowen, Nygaard, Alito,

Roth, and Lewis.

Circuit Judge

Rule 29.(1) for the required listing of parent companies

and non-wholly owned subsidiaries:

(1) I started working for Pennsylvania Railroad 5/5/1948.

(2) December 31, 1969 The New York Central and the

Pennsylvania Railroad merged and was called Penn Central

Transportation Co.

(3) In 1976 Penn Central claimed bankruptcy and they

turned the men over or leased us over, rather, to Conrail

Railroad.

(4) Conrail leased some of the men over to Amtrak, that

was the change.

BEST AVA

AMTRAK nYS&

CONRAIL

BROWN, w#ILLIE JAMES

200-0171609

00755

1977-78 PASS

EMPLOYEE IDENTIFICATION CARD |

sai WILLIE, J. BROWN

No

Signature

¢ Approved NX. Tutt

"“S PENNSYLVANI iA RAILROAD *

x , 1960 BE 1983

a88 _. wrs. W. J. Brom — » :

. Wife of Tracknan

a |

- ~- yt.* . .

Goo EAST OF PITTSBORGH, ENE AND BUFFALD

NTIL DECEMBER “Sist, 1960 wniew otherwise ordered

nen countersigned by 62 A. %. Howard d

WT VALID ON TRAINS 28, 29, 48, 47, 60, 61. 152 AND 153 ©

a

A

fuse pase ACCEPTED BY ME FOR USE

‘

;

‘

sim.

a")

E

Penn Central No. B121271.

Work Pass 1969, 70, 71.

Over - entire system

conditions for New York

Division are on back.

Men were sent anywhere

were needed with

room and board paid by

company.

Pennsylvania Railroad pass

1960 (back with conditions).

Work Pass over entire

system

Penn Central and Amtrak

Work Pass 1976 annual pass

No. PC62111.

I still retain all of my passes

from 1948 until now. If

needed I will send copies.

Also including Conrail

Railroad.

TABLE OF CONTENTS

THs Gr UC RTE SEG iv

STATEMENT OF JURISDICTION ............. 1

STATEMENT OF THE ISSUES ............... 2

STATEMENT OF THE CASE

Fi I on ae ee ee FF ie Se es 2

i 6 Dk a kbs cee ee ot 3

C. Statement of the Relevant Facts ............. 4

STATEMENT OF RELATEDCASES ............ 5

EE CE DOE oe hes ne Peet oe . 5

ARGUMENT

I. THE ERROR OF THIS COURT'S CLERK’S OFFICE

IN FAILING TO DESIGNATE PENN CENTRAL AS A

RESPONDENT IN THIS CASE DOES NOT DEPRIVE

THIS COURT OF JURISDICTION OVER PENN

CENTRAL; THAT CLERICAL ERROR IS SUBJECT

TO CORRECTION IN THISCOURT ......... 6

Il. THE BENEFITS REVIEW BOARD PROPERLY

AFFIRMED, AS SUPPORTED BY SUBSTANTIAL

EVIDENCE, THE ALJ’S FINDING THAT BROWN

WAS NOT A MINER UNDER THE ACT ...... 10

SE eige aye hee Kk 48 ook WOES Oe 15

CERTIFICATE OF SERVICE ............... 16

Page iv

TABLE OF AUTHORITIES

Cases Page

Carozza v. U.S. Steel Corp.,

127 F.2d 74 (3d Cir. 1984) ...-. +--+ ee eee 6

Chathas v. Smith,

848 F.2d 93 (7th Cir. 1988) ......--+--++s: 13

Foreman v. Director, OWCP,

794 F.2d 569 (11th Cir. 1986) ....-.-.--->-: 16

Griffith v. Director, OWCP,

868 F.2d 847 (6th Cir. 1989) .....---+++s> 14

Hanna v. Director, OWCP,

860 F.2d 88 (3d Cir.1988) .....-+++-- 14, 15

Kertesz v. Crescent Hills Coal Co.,

788 F.2d 158 (3d Cir. 1986) ....-.---+s+ ees 6

Longmire v. Guste,

921 F.2d 620 (5th Cir. 1991) .....-+++++- 13

Norfolk & Western Railway Co. v. Roberson,

918 F.2d 1144 (4th Cir. 1990), cert. denied,

111 8.Ct. DIS (1GS1) 2. ee te ees 9

Oil, Chemical & Atomic Workers Local 6-418 v. N.L.R.B.,

694 F.2d 1289 (D.C. Cir 1982) .....++++-+-: 12

Pennsylvania Electric Co. v. FMSHRC,

969 F.2d 1501(3d Cir. 1992) ......---- 15, 16

Southard v. Director, OWCP,

732 F.2d 66 (6th Cir. 1984) ......----- 15, 16

Stroh v. Director, OWCP,

810 F.2d 61(3d Cir. 1987) ......-+-:-: 14, 15, 17

Torres v. Oakland Scavenger Co.,

108 S.Ct. 2405(1988) .....--- ee eee es 11-12

Whisman v. Director, OWCP,

8 Black Lung Rep. (MB) (Ben. Rev. Bd. 1985) . . 4,14

Wisniewski v. Director, OWCP,

929 F.2d 952 (3d Cir. 1991) .....-- +++ ees 12

Page v

Table of Authorities ( continued)

Statutes: Page

Internal Revenue Code, as amended,

26 U.S.C. §1 et seq.

gis Te Le a a a eae 9

Federal Coal Mine Health and Safety Act, as amended,

30 U.S.C. §801 et seq.

Section 2(h) (2), 30 U.S.C. §802(h)(2) ....... 17

Section 2(i), 30 U.S.C. §802(i) 2... ........ 15

Black Lung Benefits Act, as amended,

30 U.S.C. §§901-945 (1982)

SPC Cea ae wet tc tt eet ew 2

Section 402(d), 30 U.S.C. §902(d) ....... 13, 14

Section 415,30 U.S.C.§925 ............. 8

Section 422(a), 30 U.S.C. §932(a) ....... 1,6, 11

co ee ee 10

Longshore and Harbor Workers’ Compensation Act,

as amended, 33 U.S.C. §901 et seq.

Section 21(b) (3), 33 U.S.C. §921(b) (3) ...... 2.6

Section 21(c), 33 U.S.C. §921(c) ....... 1,11, 13

Regulations:

Title 20, Code of Federal Regulations

eens gia sc Shle esd oXereg_ ee 14

ek A GE Br ore 17

ee ED c=, Gow eh decedent’ ® 0 8 15

ow re 14

on, go nw bs te tne 14

eh So ra 10

re eee ce ee eed 8

DCR gg Sok we wel cvs 2

eer ee 2

Ce ng ok Semin i 9,10

CS. 5. gf 5 6 6 + a. 8 ee 9

ee ee IED 724. We. 6 Roe SN. 9

ee ee 9

GR On cc et 6 eh 6 we oe 9

I i ee Gee eg 10

Table of Authorities (continued)

ee 10 :

20 C.F.R. §725.602a) ............00e. 10 |

em ge cee ew es 2

Rules:

Federal Rules of Appellate Procedure

I ey et in se ed 11

I a SR eT Fhe i eae a air mane 12

I Si a et a a ee ee 12

EE xe 6 oo 64 WN Se ee ees es 12

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 92-3011

WILLIE J. BROWN,

Petitioner

Vv.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES DEPARTMENT OF

LABOR,

Respondent

On Petition for Review of an Order of the Benefits Review

Board, United States Department of Labor

BRIEF OF THE FEDERAL RESPONDENT

STATEMENT OF APPELLATE AND SUBJECT MATTER

JURISDICTION

This Court has jurisdiction over this appeal from a final

order of the Benefits Review Board, United States

Department of Labor, pursuant to section 21(c) of the

Longshore and Harbor Workers’ Compensation Act, 33

U.S.C. §921(c), as incorporated by section 422(a) of the Black

Lung Benefits Act (the “Act”), 30 U.S.C. §932(a). The injury

in this case, within the meaning of section 21(c), occurred in

the State of New Jersey and the Commonwealth of

Pennsylvania. Claimant’s petition for review of the Benefits

Review Board’s decisions of October 28, 1991 and December

30, 1991 was timely filed on January 6, 1992.

The Benefits Review Board had jurisdiction to review the

decision of the Department of Labor administrative law judge

pursuant to section 21(b) (3) of the Longshore Act, 33 U.S.C.

Page 1

§921(b) (3), as incorporated. Claimant’s appeal of the

administrative law judge’s decision of April 28, 1989 was

timely filed on May 4, 1989. See 20 C.F.R. §§725.479,

725.481, 802.205.

STATEMENT OF THE ISSUES

1. Whether the error of the Clerk’s Office in failing to

serve Penn Central Transportation Company with the

petition for review of the Board’s decision deprives this Court

of jurisdiction over Penn Central.

2. Whether the petitioner's employment as a trackman

constitutes “coal mine employment” and, thus, whether

petitioner is a “miner” as defined in the Black Lung Benefits

Act.

STATEMENT OF THE CASE

A. Course of Proceedings

Willie J. Brown ("Brown") filed an application for benefits

under Part C of the Black Lung Benefits Act, 30 U.S.C. §901

et seq., ("the Act") on May 15, 1986. Director’s Exhibit ("DX")

1.) During the administrative processing of Brown’s claim,

the Department of Labor ("DOL") identified Penn Central

Transportation Company ("Penn Central") as the responsible

operator which would be liable for payment of any benefits

ultimately awarded to Brown. DX 16. Penn Central contested

its identification as the responsible operator. DX 17. Brown’s

claim was administratively denied by DOL on August 15,

1986. DX 14. DOL concluded that Brown’s work as a

trackman was not coal mine employment and that Brown

failed to establish that he had pneumoconiosis arising out of

coal mine employment. Jd. Brown requested a hearing, which

was held before Administrative Law Judge Ben L. O’Brien

("the ALJ") on August 22, 1988 in Beckley, West Virginia.”

The ALJ issued a Decision and Order denying benefits on

April 28, 1989. Brown, representing himself, appealed to the

Benefits Review Board ("the Board"), which affirmed the

ALJ’s denial of benefits in a Decision and Order dated

October 28, 1991. The Board summarily denied Brown’s

‘ Exhibit numbers refer to exhibits in the official record before the Benefits Review

Board. By Order dated February 21, 1992, the Court granted Brown’s motion to

proceed on the original record.

?Brown was represented by counsel at the hearing before the ALJ.

Page 2

motion for reconsideration on December 30, 1991. Brown,

representing himself, filed a timely petition for review with

this Court.

In his original petition for review, Brown named only the

Director as a respondent.° As a result, the Clerk’s Office

captioned this case as Brown v. Director, OWCP and did not

designate Penn Central as a respondent. Counsel for the

Director contacted the Clerk’s Office to alert them to the

presence of Penn Central as responsible operator in this

case.* In a telephone convers: sion, the Clerk’s Office

indicated that Penn Central would not be a party to this

appeal unless it filed a motion to intervene. By letter dated

February 18, 1992, counsel for Penn Central stated that he

had received the same information from the Clerk’s Office

and that Penn Central would not file a motion to intervene.

Hence, on February 25, 1992, the Director filed a motion to

reform the caption of this case by adding Penn Central as a

respondent. After originally being referred to the merits

panel on March 2, 1992, this motion was referred to a

motions panel of the Court on April 10, 1992. On September

10, 1992, the motion was referred back to the merits panel,

where it is now pending. As per the Order of April 10, 1992,

the Director’s response brief is due on September 24, 1992.

B. Decisions Below

The sole issue considered by the ALJ was whether Brown

qualified as a miner under the Act. Applying the three-prong

test enunciated by the Board in Whisman v. Director, OWCP,

8 Black Lung Rep. (MB) 1-96 (Ben. Rev. Bd. 1985), the ALJ

found that Brown did not work at or around a coal mine or

coal preparation facility (the “situs” test); that the coal that

Brown cleaned up or unloaded in the course of his duties as a

trackman was already fully processed and in the stream of

commerce (the “status” test); and that Brown’s duties as a

trackman were not integral to the extraction or preparation

of coal (the “function” test). Thus, the ALJ found that Brown

3 Subsequently, in a letter dated February 26, 1992, Brown attempted to add Penn

Central as a respondent.

* This case was defended before both the ALJ and the Board by Penn Central. The

Director did not appear at the hearing before the ALJ and filed a letter of

non-participation with the Board.

Page 3

was not a miner under the Act. Accordingly, benefits were

denied.

On appeal, the Board affirmed the ALJ’s findings under

each prong of the Whisman test as supported by substantial

evidence. Hence, the Board affirmed the ALJ’s denial of

benefits on the basis that Brown was not a miner. The Board

also summarily denied Brown’s motion for reconsideration.

C. Statement of the Re!« vant Facts

Brown testified that he was employed as a trackman” for

the Pennsylvania Railroad and its successors, including Penn

Central, Conrail and Amtrak, from 1948 until 1982 on the

New York Division (later renamed the New Jersey Division).

Hearing Transcript ("Tr.") at 20-22. He testified that his

duties involved cleaning and repairing railroad tracks and

statior. facilities. Jd. He also stated that his duties included

unloading coal at the heating plant for the Pennsylvania

Station in Newark, New Jersey ("Newark Penn Station"). Tr.

at 24, 29-30. Although he never worked in an underground

coal mine or at a strip mine, Tr. at 33, Brown testified that

he was exposed to coal dust while cleaning up coal that had

spilled along the tracks or that had been spilled in a

derailment and while unloading coal for the heating plant at

Newark Penn Station. Tr. at 29-30, 32-33, 34. He also

testified that he could not differentiate raw and processed

coal and that he did not know what a tipple, colliery or

breaker were. Tr. at 23, 33.

William M. Worthington ("Worthington"), a systems and

track analysis engineer for Conrail, testified at a deposition

that the duties of a trackman included installing ties,

surfacing track, working derailments, general cleanup and

assisting in inspections. Employer’s Exhibit ("EX") 9 at 11.

Worthington further testified that there were no coal mines,

collieries, breakers or coal processing plants on the New York

Division, which extends from Albany, New York to

Holmesburg, Pennsylvania, at any time since 1948. EX 9 at

8, 13. This testimony was corroborated by the deposition

testimony of Frederick Day ("Day"), an assistant engineer for

5 Brown also testified that he worked as a welder beginning in 1973. Tr. at 37. The

record does not indicate what his duties as a welder were, or whether they were

performed in addition to or in lieu of his duties as a trackman.

Page 4

bridges and buildings for Conrail. EX 8 at 6-7. Finally,

Worthington testified that all coal used at generating plants

was processed and that no raw coal yas housed, stored or

transported on the New York Division.® EX 9 at 12-15, 21.

STATEMENT OF RELATED CASES

This case has not been before this Court prior to the

present appeal. To the best of the Director's knowledge, there

is no case pending before the Court, or about to be presented,

which addresses similar issues.

STANDARD OF REVIEW

The Board reviews ALJ decisions to determine if they are

supported by substantial evidence and in accordance with

law. 33 U.S.C. §921(b) (3), as incorporated by 30 U.S.C.

§932(a). This Court, in turn, reviews Board decisions to

determine if the Board properly applied its standard of

review. Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 162

(3d Cir. 1986). On questions of law, the Court’s review is

plenary. Carozza v. U.S. Steel Corp., 727 F.2d 74, 77 (3d Cir.

1984).

® Worthington testified that he could differentiate raw and processed coal based on

his previous employment with Bethlehem Steel Corporation. EX 9 at 8-9.

Page 5

ARGUMENT

THE ERROR OF THIS COURT'S CLERK’S

OFFICE IN FAILING TO DESIGNATE PENN.

CENTRAL AS A RESPONDENT IN THIS CASE DOES

NOT DEPRIVE THIS COURT OF JURISDICTION

OVER PENN CENTRAL; THAT CLERICAL ERROR IS

SUBJECT TO CORRECTION BY THIS COURT.

The Director, Office of Workers’ Compensation Programs,

is currently the sole respondent in this case. We have filed a

motion to reform the caption by adding Penn Central as a

respondent. By Order dated September 10, 1992, a motions

panel of the Court referred this motion to the merits panel.

We now renew our request that Penn Central be designated

as a respondent in this case.

In response to our original motion, Penn Central argued

that because Brown failed to name them in his original

petition for review, they cannot now be named as a

respondent. The Clerk’s Office’s statement that Penn Central

could only participate by intervening appears to reflect the |

same view. Both the Clerk’s Office and Penn Central,

however, appear to labor under the assumptions that Brown

could take his appeal against only the Director and that, in

fact, he did so. Neither assumption is correct. Mr. Brown’s

original petition for review was filed pro se, and gives no

indication on its face that Mr. Brown is somehow Attempting

to release Penn Central from potential liability.’ Moreover,

even assuming that Brown did intend to appeal against the

Director alone, he could not do so, since he cannot choose

which party would be liable for payment of benefits.

Unlike most civil cases, an individual applying for black

lung benefits cannot choose the party from which he will

’ The effect of the ALJ and Board decisions, of course, is to release Penn Central

from liability on the basis that Brown is not entitled to any black hung benefits. That

issue, discussed below in Argument II, is different from whether Penn Central can

be released from ntial liability (i.e., from liability if Brown is found entitled to

benefits) simply by a clerical error.

Page 6

recover. For example, in a personal injury case with multiple

tortfeasors, the plaintiff can choose which tortfeasors to sue.

Those sued would be jointly liable. Similarly, if, at the trial

level, verdicts were returned in favor of the defendants, the

plaintiff would have the choice of which, if any, defendants to

appeal against. By contrast, if a claimant 8 found to be

entitled to benefits under Part C of the Act,® those benefits

will be paid by either the Black Lung Disability Trust Fund

("Trust Fund") or by a responsible operator.

During the administrative consideration of Brown’s

claim, DOL identified Penn Central as the putative

responsible operator and notified it of the claim. DX 16; see

20 C.F.R. §725.412. Penn Central contested its status as

responsible operator,” and also controverted Brown’s

entitlement to benefits. Brown’s claim was administratively

denied by DOL and was also denied by the ALJ. Brown then

appealed to the Board, which affirmed the denial of benefits

and also denied Brown’s motion for reconsideration. Penn

Central appeared and defended the claim before both the

administrative law judge and the Benefits Review Board.

A “responsible operator” is defined in the applicable

regulations. The owners and operators of coal mines and coal

preparation facilities, as well as certain coal mine

construction and transportation employers, may qualify as

operators under the Act. 20 C.F.R. §725.491. A railroad

employer like Penn Central may meet this test and be

considered an operator. Norfolk & Western Railway Co. uv.

Roberson, 918 F.2d 1144, 1150 (4th Cir. 1990), cert. denied,

111 S.Ct. 2012 (1991). A responsible operator is the employer

for whom a miner most recently engaged in coal mine

employment for at least one year. 20 C.F.R. §725.492(a) (1).

In addition, a responsible operator must have been the owner

or operator of a coal mine or preparation facility or been a

coal mine construction or transportation employer for any

period subsequent to June 30, 1973, 20 C.F.R. §725.492(a)

® Part C is the portion of the Act administered by the Department of Labor; it covers

claims filed after December 31, 1973. Claims filed prior to that date were covered

under Part B of the Act, which was administered by the Social Security

Administration ("SSA"), or section 415, 30 U.S.C. 925, which was administered in

part by SSA and in part by DOL.

* This issue has never been adjudicated.

Page 7

(3), and the miner must have worked for the resposible

operator for at least one day subsequent to December 31,

1969. 20 C.F.R. §725.492(a)(2).

The liability of the Black Lung Disability Trust Fund for

payment of benefits under Part C of the Act is similarly

determined by statute and by regulation. Where it has been

determined that no operator can be held liable for the

payment of benefits, the ultimate liability will lie with the

Trust Fund. 26 U.S.C. §9501(d1XB); 20 C.F.R. §725.490.

Also, if a claim meeting certain conditions is approved

pursuant to section 435 of the Act, 30 U.S.C. §945, liability

transfers from the responsible operator to the Trust Fund.!

20 C.F.R. §725.496. Otherwise, liability lies with the

responsible operator. 20 C.F.R. §725.490. The Act makes no

provision, however, for a claimant’s election to recover

benefits from a party other than the one specified by

regulation. In short, it is not within a claimant’s prerogative

to choose which party will pay benefits.

In this case, the Department named Penn Central as the

putative responsible operator. Under the applicable

regulations, Penn Central, once named, is a party to this

case. 20 C.F.R. §725.360(a)(3). Although Penn Central has

contested their designation as responsible operator, that

issue has never been resolved by the administrative law

judge, and is not now before this Court. Thus, if Brown is

ultimately awarded benefits, liability will lie with Penn

Central unless that company can successfully challenge the

Department’s designation. It cannot evade this liability on

the basis that Brown erroneously failed to name Penn

Central as a respondent in his petition for review or based on

its failure to participate in the appeal. Hence, we submit that

Brown cannot elect to appeal against only the Director.

This analysis of Black Lung Benefits Act procedures is

borne out Ly the responsibilities that the Act places on the

Clerk’s office once a petition for review is filed. The

incorporated provision of the Longshore and Harbor Workers’

© The Trust Fund will also pay “interim” benefits in cases where the Department of

Labor has determined that the claimant is eligible for benefits, but the responsible

operator has controverted claimant’s entitlement 20 C.F.R. §725.522(b). If, however,

the responsible operator is ultimately determined to be liable, it must reimburse the

Trust Fund for the benefits paid. 20 C.F.R. §725.602(a).

Page 8

Compensation Act, 33 U.S.C. §921(c), provides that appellate

review of a Board order may be obtained simply by filing a

written petition praying that the Board’s decision be modified

or set aside. “A copy of such petition shall be forthwith

transmitted by the clerk of the court, to the Board, and to the

other parties...” 33 U.S.C. §921(c), as incorporated by 30

U.S.C. §932 (a) (emphasis added). When Brown filed his

petition for review, Penn Central was already a party to this

case. Contrary to the position of the Clerk’s office, Penn

Central does not have to file a motion to intervene.!! Instead,

it was the responsibility of the Clerk to serve the petition on

both the Director and Penn Central.

Penn Central has asserted, in response to the Director's

motion to reform the caption, that Mr. Brown’s petition for

review is insufficient to confer jurisdiction over Penn Central,

and that it did not receive sufficient notice of Mr. Brown’s

appeal. We have demonstrated why Mr. Brown’s failure to

properly designate the responding parties in this case is not a

jurisdictional defect. Although Rule 3(c) of the Federal Rules

of Appellate Procedure imposes a jurisdictional requirement

that all appealing parties be named with specificity in a

notice of appeal, Torres v. Oakland Scavenger Co., 108 S.Ct.

2405, 2408 (1988), there is no such requirement for the

naming of responding parties. Oil, Chemical & Atomic

Workers Local 6418 v. N.L.R.B, 694 F.2d 1289, 1299 (D.C. Cir

1982); see also Fed. R. App. p 3(d), as incorporated by Fed. R.

App. p. 15(c) (failure of Cierk to serve notice of appeal on all

parties does not effect validity of appeal). !?

Furthermore, contrary to Penn Central’s assertion in its

response to the Director’s motion to reform caption, Penn

Central was on notice of its continuing status as a

respondent in this case, despite Brown’s failure to name it as

a respondent in his original petition for review, simply by

virtue of the nature of proceedings under the Act. Penn

11 Penn Central has declined to file such a motion. The Director is now defending

the claim before this Court, thereby saving Penn Central substantial time and

resources.

‘2 Although Fed. R. App. P. 15a) states that the petition shall “designate the

respondent,” there is no indication that this is the type of jurisdictional requirement

that would affect the Court’s ability to hear Brown’s appeal, see Wisniewski v.

Director, OWCP, 929 F.2d 952, 954-956 (3d Cir. 1991), or to grant Brown the relief

he seeks, namely, benefits payable by his former employer, Penn Central.

Page 9

Oe ae re ©

Central was on notice of its potential liability from the time it

was notified of the existence of Brown’s claim. Although Penn

Central has contested its designation as responsible operator,

it has never been dismissed from this case. Since, as we have

shown above, Brown cannot elect the party from which he

seeks to recover, Penn Central cannot reasonably claim that

it believed that it was “off the hook” and need not defend this

appeal merely because Brown did not name it as a

respondent in his petition given the structure of the Act and

the regulations, the identity of the parties to this appeal was

clear from the outset.!* Moreover, Penn Central received

notice of this appeal well in advance of any briefing deadline.

Thus, it cannot show any prejudice from Brown’s failure to

name it in his original petition for review.

Under 33 U.S.C. 921(c), the “error” in failing to designate

Penn Central as a respondent in this proceeding is properly

charged to the Office of the Clerk. This error is both

excusable, given the paucity of information available to the

Clerk’s Office when the petition for review was

acknowledged, and non-jurisdictional. Therefore, the Director

respectfully requests that the Court correct the action of the

Clerk’s Office and designate Penn Central as a respondent in

this appeal.

II

THE BENEFITS REVIEW BOARD PROPERLY

AFFIRMED, AS SUPPORTED BY SUBSTANTIAL

EVIDENCE, THE ALJ’S FINDING THAT BROWN WAS

NOT A MINER UNDER THE ACT.

The Act provides benefits to coal miners who are totally

disabled due to pneumoconiosis arising out of coal mine

employment. The sole issue addressed by the ALJ and the

Board, and, thus, the sole issue on the merits before this

'3 Similarly, in both of the cases cited by Penn Central, responding parties which

were not specified in the notice of appeal did not lack notice because they were

deemed to have actual knowledge of their status. Longmire v. Guste, 921 F.2d 620,

623 (5th Cir. 1991); Chathas v. Smith, 848 F.2d 93, 94 (7th Cir. 1988).

Page 10

Court, was whether Brown was a “miner” as defined in the

Act. Section 402(d) of the Act defines a miner as

any individual who works or has worked in or

around a coal mine or coal preparation facility in the

extraction or preparation of coal. Such term includes

an individual who works or has worked in coal mine

construction or transportation in or around a coal

mine, to the extent such individual was exposed to coal

dust as a result of such employment.

30 U.S.C. §902(d); see also 20 C.F.R. §§725.101(a) (26),

725.202(a).

This Court has developed a two-part test for determining

whether an individual qualifies as a miner under the Act.

First, he must work in or around a coal mine or coal

preparation facility (the “situs” test); second his work must

be integral to the extraction or preparation of coal and not

ancillary to its delivery and commercial use (the “function”

test). Stroh v. Directors OWCP, 810 F.2d 61, 63 (3d Cir.

1987).

A claimant, including a transportation worker, must

satisfy both tests to qualify as a miner. Jd. Moreover, the

claimant bears the burden of proving that he worked as a

miner. 20 C.F.R. §718.403; see Hanna v. Directors, OWCP,

860 F.2d 88, 91 (3d Cir. 1988) ("[Bloth elements of that test

must be proven before a claimant can be determined eligible

for benefits under the Act"), Griffith v. Director, OWCP, 868

F.2d 847, 848 (6th Cir. 1989) (claimant bears the burden of

proving the length of his coal mine employment). Applying

Stroh to the present case, it is clear that Brown has not

proven either requirement.

Brown cannot satisfy the function requirement. To satisfy

the function requirement, Brown’s job must have been

integral to the extraction or preparation of coal and not

ancillary to its commercial delivery. Stroh, 810 F.2d at 63. It

is clear that Brown’s work never involved the actual

- Although both the ALJ and the Board applied the three-part Whisman test rather

than the two-part test of Stroh, this error was harmless. As the Court noted in

Stroh, the “status” requirement of Whisman is subsumed in the “function”

requirement of Stroh. 810 F.2d at 64. Moreover, the ALJ’s factual findings make it

clear that Brown is not a miner, regardless of the test used.

Page 11

pF ce an se ttn

extraction of coal from the ground. Moreover, his work does

not fall within the definition of “preparation” of coal. Coal

preparation includes

the breaking, crushing, sizing, cleaning, washing,

drying, mixing, storing and loading of ... coal, and

such other work of preparing ... coal as is usually done

by the operator of the coal mine.

30 U.S.C §802(i); see also 20 C.F.R. §725.101(aX(25). The

preparation process is complete when the coal is removed

from the tipple and loaded “for transport into the stream of

commerce.” Hanna, 860 F.2d at 93. Activities beyond that

point, related to the delivery of fully processed coal to the

ultimate consumer, do not fall within the definition of coal

preparation. Id.; Stroh, 810 F.2d at 64; Southard v. Director,

OWCP, 732 F.2d 66, 69-70 (6th Cir. 1984); accord

Pennsylvania Electric Co. v. FMSHRC, 969 F.2d 1501 (3d

Cir. 1992).

Applying these principles to this case, it is clear that

Brown was not engaged in coal preparation. The record

demonstrates that only processed coal was transported on

the New York Division. EX 9 at 12-15. This coal had already

been removed from the tipple and loaded for transport into

the stream of commerce. Thus, when a coal train derailed on

the New York Division and Brown helped clean up the spilled

coal, his work was ancillary to the delivery of coal to

consumers. Likewise, his work unloading coal for the heating

plant at Newark Penn Station was not integral to the

extraction and preparation of coal. Brown unloaded fully

processed coal for use in generating heat for the train station,

a step in the delivery of coal to a consumer. See Foreman v.

Director, OWCP, 794 F.2d 569, 571 (11th Cir. 1986)

(individual employed by coal consumer who loaded coal into

boiler of power plant not engaged in coal mine employment);

Southard, supra, 732 F.2d at 69 (unloading and stockpiling of

coal for a retailer not coal preparation because the coal was

already prepared and in the stream of commerce). There is no

evidence that Brown’s other duties as a trackman and welder

had any connection to the extraction or preparation of coal.

Thus, Brown was not engaged in the extraction or

preparation of coal; his work was merely ancillary to the

commercial delivery and use of fully processed coal. Hence,

Page 12

the ALJ properly found that he does not satisfy the function

requirement.

It is similarly clear that Brown cannot independently

meet the situs requirement.!° He testified that he never

worked in a coal mine, underground or surface, Tr. at 33, and

there is no evidence of record that he ever worked in a coal

mine. Indeed, there were no coal mines or collieries along the

entirety of the New York Division. EX 9 at 13; EX 8 at 6-7.

The only places where Brown was exposed to coal dust were

the track locations where he cleaned up spilled coal and at

the heating plant for Newark Penn Station. None of these

places were coal mines or coal preparation facilities.

For the purposes of the Act, a coal mine is defined as

an area of land and all structures, facilities,

machinery, tools, equipment, shafts, slopes, tunnels,

excavations, and other property, real or personal, ...

used in the work of extracting (coal) ... and in ... the

work of preparing the coal so extracted, and includes

custom coal preparation facilities.

30 U.S.C. §802(h) (2); see also 20 C.F.R. §725.101(a) (24).

The record does not identify the precise locations at which

Brown cleaned up spilled coal, but there is no evidence that

any of these locations were used for the extraction or

preparation of coal. Moreover, Worthington and Day, the

Conrail officials, both stated that there were no coal mines or

coal preparation facilities on the New York Division. EX 9 at

13; EX 8 at 6-7. Thus, the ALJ properly found that Brown’s

work cleaning up spilled coal was not performed in or around

coal mines or around coal preparation facilities. As to the

heating plant for Newark Penn Station, Brown’s duties in

unloading coal were clearly ancillary to the commercial use of

coal. The plant burned processed coal, apparently to provide

heat and electricity for the train station. EX 9 at 21. The

piant was the ultimate consumer of the coal Brown unloaded

and there is no evidence that any coal preparation activities

were carried on there. Thus, the ALJ acted properly in

° If Brown had met the “function” requirement, i.e., performed work which was

integral to the extraction or preparation of coal, the area in which he worked could

have been considered a «eyed “situs,” under the “functional analysis” espoused by

this Court in Pennsyles..a Electric Co. v. FMSHRC, 969 F.2d 1501 (3d Cir. 1992).

Page 13

concluding that Brown’s work at the heating plant was not in

or around a coal mine or coal preparation facility. Since

Brown did not work in or around a coal mine or coal

preparation facility, he does not meet the situs requirement

and he cannot qualify as a miner under the Act. Stroh, supra.

Since Brown satisfied neither the situs nor the function

requirement, he cannot be considered a miner under the Act

and is not eligible for benefits. Therefore, the Court should

affirm the denial of benefits. In the event that the Court does

not affirm the ALJ’s finding that Brown was not a miner,

then this case must be remanded for consideration of the

merits of Brown’s claim and of the responsible operator issue,

as neither the ALJ nor the Board addressed these issues.

Page 14

CONCLUSION

The Director respectfully requests that the Court affirm

the denial of benefits in this case. The ALJ rationally found

that Brown was not a miner under the Act and that finding

wes properly affirmed by the Board. The Director also

requests that the Court designate Penn Central as a

respondent in this case. If the Court does not affirm the

denial of benefits, then the Director requests that the case be

remanded for consideration of the issue of responsible

operator and for consideration on the merits.

Respectfully submitted,

MARSHALL J. BREGER

Solicitor of Labor

DONALD S. SHIRE

Associate Solicitor

MICHAEL J. DENNEY

Counsel for Appellate Litigation

BARRY H. JOYNER

Attorney

U.S. Department of Labor

Office of the Solicitor

Suite N-2605

Frances Perkins Building

200 Constitution Ave., N.W.

Washington, D.C. 20210

(202) 357-0398

(202) 219-4398

Attorneys for the Director, Office

of Workers’ Compensation Programs

Page 15

CERTIFICATE OF SERVICE

I hereby certify that on September 24, 1992, two copies of

the foregoing pleading were served by mail, postage prepaid,

on the following:

Willie J. Brown

312 Harper Heights Road

Beckley, West Virginia 25801

J. Lawson Johnston, Esq.

Dickey, McCamey & Chilcote

Two PPG Place

Suite 400

Pittsburgh, Pennsylvania 15222-5402

BARRY H. JOYNER

Attorney

U.S. Department of Labor

Page 16

APPENDIX CONTAINING THE DOCUMENTS

SET FORTH IN RULE 14(K)

PHYSICIANS PRIMARY HEALTH CARE, INC.

February 12, 1988

RE: Willie J. Brown

SS: 260-01-1809

DOB: 11-24-22

To Whom It May Concern:

This is in reference to the above named patient, who is a

sixty-five year old black male, who has been at my office for

the second time on February 11, 1988 for re-evaluation of his

occupational lung disease.

CLINICAL HISTORY

According to the patient, he has had a long standing

history of progressive shortness of breath, spells of coughing

and progressive fatigue for approximately eight years. His

cough is usually nonproductive. He is easily exhausted and

tired that walking a distance of one hundred yards on a level

ground is difficult because of dyspnea. He is unable to climb

up a hill or walk up a flight of stairs without resting.

Recently, he has been complaining of tightness on both sides

of the chest, aggravated by coughing. He takes Dilor G, one

tablet four times daily. He could not perform any usual or

ordinary physice] exertion because of smothering.

| PAST HISTORY

No history of heart disease, high blood pressure or

diabetes mellitus. No history of asthma. No previous injuries.

He was treated for peptic ulcer disease. He stated he worked

34 years in and around the mines as a trackman for the 4

railroad, which exposed him to the hazards of the coal dust. |

SOCIAL HISTORY

He is a nonsmoker. Denies drinking alocholic beverages.

FAMILY HISTORY

Noncontribuatory

Page 17

PHYSICAL EXAMINATION

When the patient was seen, he was conscious and in mild

respiratory difficulty.

VITALSIGNS T_ 98.8

P 64

oe

BP 180/108

WT 162

HT 5’8

HEAD Normocephalic.

ENT Unremarkable.

NECK No palpable masses. Carotid arteries

normal.

Jugular vein visible but not distended.

CHEST Increased AP diameter.

LUNGS Bilateral rhonchi breathing with

diminished breath sounds bilaterally.

HEART Regular sinus rhythm, the sounds

are faint.

ABDOMEN No mass, no tenderness.

EXTREMITIES No edema, mild clubbing of the fingers.

LABORATORY Enclosed.

DIAGNOSIS 1. Coal Worker’s Pneumoconiosis.

2. Diffuse Chronic Interstitial Lung Disease.

3. Peptic Ulcer Disease, by history.

OPINION AND RECOMMENDATIONS

The above trackman has shown clinical evidence of an

occupational lung impairment, confirmed by the

Sphirometric Studies, revealing an FEV1 of 1.67 1/1 sec and

an FEV3 of 213 1/3s, consistent of Severe Pulmonary Defect

and moderate restrictive defect. The ABG showed a PO2 of

32.2. The chest x-ray showed minimal Chronic Diffuse

Interstitial Lung Disease with Aortic Athrosclerosis. The

EKG suggests a right cardiac strain, indicative of chronic

lung disease.

The above findings strongly indicates his pulmonary

impairment is directly related to the exposure of the hazards

of his occupation as a trackman and that he is totally and

Page 18

fi

i

} *

na

permanently disabled from his gainful employment as a

trackman or its comparible job.

I trust that this examination is helpful in assisting his

claim.

Sincerely yours,

Jose P. Floresca, M.D.

JPF/aln

Enclosures

CC: 2

Page 19

PHYSICIANS PRIMARY HEALTH CARE, INC.

BECKLEY, WV 25801

JOSE P. FLORESCA, M.D.

September 21, 1988

Belinda S. Morton

Attorney At Law

106 Maple St.

Fayetteville, WV 25840

RE: Willie J. Brown

SS: 260-01-1809

Dear Ms. Morton:

This is in response to your letter, dated September 5,

1988, requesting a review and comment to the medical report

of Dr. Zaldivar. Upon reviewing the medical report, he

diagnosed the case as asthma. He mentioned that the patient

had worked in the mines for thirty-four years and had a

history of shortness of breath since 1979. He also mentioned

of exertional dyspnea in walking up stairs and walking one

_— hundred—yards and no family history of asthma or

emphysema was noted. The sphirometric studies done at his

office on August 3, 1988 showed an FEV1 of 1.4 before

4 bronchodilator and 1.54 after inhalation of bronchodilator.

His comment was Moderate Irreversible Obstruction Airway

Trapping. His chest x-ray reading revealed small opacities,

Category 0/1, t/t and no other examinations were performed

such as sputum exam, CBC or serum IGE.

In my opinion and by definition of asthma, it is a

reversible airway obstruction not due to any other disease

and categorized by hyperirritability of the airway. Usually

diagnosed by the following: (1) Clinical history of paroxysmal

attacks of wheezing, not a continuous progressive shortness

of breath, (2) presence of family history of asthma

approximately one half of the family members, (3) blood

eosinophila of more than 250-400 cu/mm., (4) sputum

eosinophila with Charcot-Leyden crystals (5) Dynamic Lung

Volume, (6) Flow Rate, (7) improvement of airway

obstruction with aerosolized bronchodilators.

Page 20

¥ —

My medical opinion and comment to the above medical

report, is that the chronic lung disease this patient is

experiencing or constitutional symptoms are more related

and induced by the prolonged exposure to an offending

substance due to his occupation. He had an exposure to the

coal dust for approximately thirty-four years. He has a

history of a slow, progressive dyspnea for nine years. Asthma

usually has a paroxysmal attacks with periods or intervals of

having no symptoms and improvement with bronchodilators.

The chest x-ray, as read by Dr. Bassali and Dr. Zaldivar,

showed opacities which are discreet nodular pulmonary

fibrosis and commonly associated with Coal Workers’

Pneumoconiosis. The sphirometric studies showed airway

obstruction or pulmonary defect that have not responded to

aerosolized bronchodilators. Although blood and sputum

examinations for eosinophilia and serum IGE determination

were not done with this patient, I am fully convinced that

these tests are negative on the above miner. I have a report

of the CBC, which will be enclosed with this report.

Therefore, based on the medical report of Dr. Zaldivar,

the chest x-ray of Dr. Bassali, the sphirometric studies of Dr.

Daniels and the clinical evidences that I have gathered from

the patient himself, with medical certainty, the above

findings strongly indicate that his lung disorder is directly |

related to the heavy exposure of coal dust from his

occupational environment. So, I feel, he should be totally and

permanently disabled from his usual and regular gainful

employment.

I trust that this report should be verified by medical

references to establish the above comment.

Sincerely yours,

Jose P. Floresca, M.D.

JPF/aln

Dictated 9/21/88

Transcribed 9/21/88

Page 21

Belinda S. Morton

Attorney at Law

106 Maple Street, Box 636

Fayetteville, WV 25840

(304) 574-3000

July 12, 1988

Willie Brown

Rt. 3, Box 42

Beckley, WV 25801

RE: Black Lung

Dear Mr. Brown:

Department of Labor has requested that you be examined

by Dr. George Zaldivar, his office is located at 3100 McCorkle

Avenue, Southeast, Charleston, West Virginia. Your

appointment is scheduled for August 3, 1988 at 7:30 a.m.

This is a special appointment that was made for you.

Please be absolutely certain to keep this appointment exactly

at the time and date scheduled as a failure to do so would

seriously delay the settlement of your case.

During this medical examination, you should fully

explain to the doctor all of the problems that you are

presently having with your disability, and you should

cooperate fully with his examination of you.

If you have any questions concerning this matter, please

feel free to contact my office. Necessary expenses incurred in

connection with this examination will be paid for by the

employer.

ANY STATEMENT MADE TO THEIR DOCTOR CAN

BE USED AS EVIDENCE AGAINST YOU IN YOUR CASE.

Sincerely,

BELINDA S. MORTON, ESQ.

BSM/syj

Page 22

George L. Zaldivar, M.D., Ltd.

Lung Diseases and Internal Medicine

Suite 404

3100 McCorkle Avenue, S.E.

Charleston, West Virginia 25304

History and Physical Examination

Willie J. Brown

Penn Central Transportation

Federal Black Lung Claim

Case No.: 87-BLA-1264

OWCP No.: 260-01-1809

Date of Examination: 8/3/88

Mr. Brown is a 65 year old Negro male.

CHIEF COMPLAINT: Shortness of breath and cough.

HISTORY OF PRESENT ILLNESS: He has been short of

breath since 1979. When he walks up stairs he is short of

breath. Walking 100 yards on the level causes him to be short

of breath. Since 1979 he has used two pillows to sleep

because of shortness of breath. No swelling of his feet or

ankles. Wheezing is noted at all times, however, it is worse in

hot weather. Cough productive of sputum has been present

since 1981. The last chest pain he had was in 1979. At that

time he also had a stomach ulcer. He hasn’t had any chest

pain since.

PAST MEDICAL HISTORY: Medications - Dylor G 1 tablet

q.i.d., Theophylline Elixir which he takes every three hours,

Primatene mist. According to him the Primatene mist helps

him. Allergies - None. Habits - He states that he smoked for

one year in 1981 at one pack of cigarettes per day. He quit at

that time. Surgeries - None.

WORK HISTORY: He worked in the mines for 34 years,

quitting in 11/82. He states that he quit his job because he

couldn’t perform it due to shortness of breath. All of the time

in the mines he was a trackman. He repaired track and

cleaned track with rakes and shovels. However, he was also

pulled to do other jobs such as a truck driver outside the

mines in 1965. He has been a welder. He has driven different

kinds of equipment. However, he said that his main job was

as a trackman.

Page 23

PERSONAL AND SOCIAL HISTORY: He is married and has

had three children.

FAMILY ILLNESSES: There is no family history of asthma

or emphysema.

PERSONAL ILLNESSES: No personal history of asthma or

emphysema. He has been told that he has Black Lung. There

is no history of heart disease.

REVIEW OF SYSTEMS: Weight has remained stable. Eyes -

No complaints now. He says that while welding he had some

damage to his eyes. Ears - No complaints. Mouth - He does

not wear dentures. Lungs - As stated. Heart - No complaints.

GI - He has had stomach ulcers in the past. GU - No

complaints. MS - No complaints.

PHYSICAL EXAMINATION: Height 66", weight 158#, BP

160/90 in the right arm while sitting, primarily, pulse 70,

respiration 14. In general, he is an alert, well developed

Negro male in no acute distress. Eyes - Fundi are intact. Ears

- Tympanic membranes are normal. Mouth - Oropharynx is

healthy. He is edentulous. Neck - No bruits heard, no mass

palpated. Heart - Sl is equal to S2 without murmurs or

gallops. The lungs are clear to auscultation without wheezes,

crackles or rales even before the breathing test was

performed. The abdomen showed no mass or tenderness.

Extremities - No edema of the legs or clubbing of the fingers.

Radial and popliteal pulses are 2+ and equal. Genital and

rectal examination were not performed.

IMPRESSION: _ 1. History of shortness of breath

2. Normal examination of the lungs.

3. Hypertension on this examination.

George L. Zaldivar, M.D., F.C.C.P.

GLZAyl

Page 24

George L. Zaldivar, M.D., Ltd.

Lung Diseases and Internal Medicine

Suite 404

3100 McCorkle Avenue, S.E.

Charleston, West Virginia 25304

August 17, 1988

Mr. John T. Pion, Attorney

Dickie, McCamey & Chilcote

Suite 400

Two PPG Place

Pittsburgh, PA 15222-5402

Re: Mr. Willie J. Brown

SS#: 260-01-1809

Dear Mr. Pion:

Enclosed you will find the history and physical

examination and all laboratory information obtained from

Mr. Brown during his visit to my office on 8/3/88. I have also

reviewed the information which you sent me.

There is a letter from Dr. Jose Floresca who stated that

there was coal worker's pneumoconiosis and severe

pulmonary impairment resulting from it. This was dated

2/12/88.

Chest x-ray read by Dr. Dominic Gaziano dated 6/18/86.

He read it as no evidence of pneumoconiosis.

Chest x-ray from Dr. C. R. Daniel of 6/18/86. He read it as

U 1/0 as well as emphysema.

Blood gas study of 6/18/86 from Dr. Daniel shows a PH of

: 7.41, PC02 of 40 and P02 of 79 at rest. With exercise the PH

was 7.32, PC02 of 37 and P02 of 92. These are normal blood

gases.

Ventilatory study from Dr. Daniel of 6/18/86 shows a vital

capacity of 2.7 or 80% of predicted with an FEV 1 of 1.65 for

an FEV 1% of 61 representing mild airway obstructions. The

tracings were acceptable.

Discharge summary of 4/30/86. At that time he had acute

pancreatitis which is a disease unrelated to coal mine work.

Page 25

Chest x-ray read by Dr. Bassali dated 5/9/86 as minimal

chronic interstitial disease.

Blood gases from Dr. Floresca dated 5/7/86 shows a PH of

7.36 with a PCO2 of 63.2 and PCO2 of 37. These blood gases

are abnormal, but it has come to my attention that Dr.

Floresca’s blood gases have been performed improperly for

several years until 1988. Up to that time he was improperly

calibrating the blood gas instrument using a barometric

pressure of 740 mm. of mercury which is not the prevailing

barometric pressure in Beckley. The barometric pressure

there ranges between 697 and 710 mm. of mercury. The

improper calibration results in inaccurate blood gas results.

These gases cannot be accepted as accurate.

Dr. Floresca reported the ventilatory studies with a vital

capacity of 2.55 or 64% of predicted and an FEV 1 of 1.67 for

an FEV 1% of 65. The tracings were not submitted and

therefore I cannot make any statement as to the adequacy of

this study.

My own findings were as follows.

1). Summary of the history and physical examination as

listed under “impression”.

2). Normal hemoglobin.

3). Subtherapeutic theophylline level.

4). Only fair effort during the spirometry which shows the

presence of moderate irreversible airway obstruction.

5). Mild degree of air trapping by lung volume without

any restriction of total lung capacity.

6). Normal diffusing capacity.

7). Low carboxyhemoglobin level of a current non-smoker.

8). No radiographic evidence of pneumoconiosis.

9). Normal resting and exercise blood gases (see

comments).

COMMENTS: Mr. Brown complained of dizziness at one

minute. The blood pressure was normal and the heart rate

was 65. Because he was unsteady on the bicycle I had no

choice but to terminate the exercise at that point. The blood

Page 26

gases were entirely normal and therefore hypoxemia was not

at all related to the episode. The episode appeared to have

been due to anxiety given the normal blood pressure and

heart rate.

In summary judging from the information which you sent

me and my own information, Mr. Brown has a history

compatible with asthma. He has wheezing affected by

weather changes. He has noticed that inhalants such as

Primatene Mist helps his breathing. He is not taking

sufficient medications which is the reason for the very low

theophylline level. Mr. Brown does not have coal worker’s

pneumoconiosis. Asthma is a disease of the general

population absolutely unrelated to coal mine work.

From the pulmonary standpoint as of the time Mr. Brown

was in my office he had moderate pulmonary impairment

which would prevent him from performing the job of a

trackman as he described it to me. He can however perform

the job of a driver. Perhaps with more intensive treatment of

the asthma he might improve his ventilatory capacity.

In conclusion Mr. Brown has asthma. He does not have

coal worker's pneumoconiosis. From the pulmonary

standpoint as of the time of my examination he had moderate

impairment which would prevent him from performing the

job of a trackman.

Sincerely,

Geroge L. Zaldivar, M.D., F.C.C.P.

GLZ/mem

Page 27

As an appendix to the opinion of U.S. Court of Appeals for

the Circuit. The opinion of the District Court or the opinion of

the OWCP as required by Rule 14. 1(k).

DATE: April 28, 1989

CASENO.: —87-BLA-01264

OWCPNO.: —260-01-1809

IN THE MATTER OF

WILLIE J. BROWN,

Claimant

v.

PENN CENTRAL TRANSPORTATION COMPANY

Employer

and

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS,

Party-in-Interest

Appearances:

BELINDA S. MORTON, ESQUIRE

For the Claimant

JOHN PION, ESQUIRE

For the Employer

NO APPEARANCE

For the Director

BEFORE: BEN L. O’BRIEN

United States

Administrative Law Judge

DECISION AND ORDER DENYING BENEFITS

This proceeding arises from a claim for benefits under the

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

accordance with the Act and the Regulations issued

thereunder, this case was referred to the Office of

Administrative Law Judges by the Director, Office of

Workers’ Compensation Programs, for a formal hearing in

order to determine the Claimant’s eligibility for benefits

under the Act.

Page 29

Benefits under the Act are awardable to Miners who are

totally disabled within the meaning of the Act due to

pneumoconiosis, or to the survivors of Miners whose death or

total disability was caused by pneumoconiosis.

Pneumoconiosis is a dust disease of the lungs arising from

coal mine employment and is commonly known as Black

Lung.

A formal hearing of this case was held in Beckley, West

Virginia on August 22, 1988, at which time all parties were

afforded full opportunity to present evidence and argument

as provided in the Act and the Regulations issued

thereunder. The Regulations referred to herein are contained

in Title 20 of the Code of Federal Regulations.

The following abbreviations will be used in this Decision:

DX for Director’s Exhibit, CX for Claimant’s Exhibit, EX for

Employer's Exhibit and Tr. for Transcript of the Hearing.

At the hearing, Claimant was granted leave to submit

rebuttal testimony as to Dr. Zaldivar’s medical report within

thirty days. No such testimony was received within the thirty

day time period. Claimant’s counsel then submitted the

report of Dr. Floresca on September 28, 1988, outside of the

thirty day time period. However, as the submitted report is

probative as to the contested issues, it is marked and

admitted into evidence as the contested issued, it is marked

and admitted into evidence as Claimant’s Exhibit No. 2.

Additionally, closing arguments were received on behalf of

both Claimant and Employer. The record is now closed.

ISSUES —

1. Whether the Claimant has pneumoconiosis as defined

by the Act and the Regulations;

2. Whether Claimant’s pneumoconiosis arose out of coal

mine employment;

3. Whether Claimant is totally disabled;

4. Whether Claimant's’ disability is due to

pneumoconiosis;

5. Whether Penn Central Transportation Corporation is a

responsible operator.

Page 30

i . .

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BACKGROUND AND HISTORY

The Miner, Willie J. Brown, was born on November 24,

1922. He completed the fourth grade. Claimant worked as a

railroad trackman from 1948 to 1982.

DATE OF FILING

Claimant filed an application for benefits under the Act

on May 15, 1986 (DX-1). The claim was denied on August 15,

1986 (DX-14). Claimant thereupon requested the present

hearing (DX-15).

COAL MINE EMPLOYMENT

To establish that Claimant was a Miner within the

meaning of the Act, he must prove the following:

1. The work was done at a place where coal was being

processed rather than at a place where the coal was a

finished product in the stream of commerce (status of

the coal test);

2. The “Miner” was performing a function integral to the

extraction or preparation of coal, not ancillary to the

delivery and commercial use of processed coal

(function test); and

3. The “Miner’s” work occurred in or around a coal mine

or coal preparation facility (situs test). Whisman v.

Director, 8 BLR 1-96 (1985).

Claimant was employed as a trackman with Penn Central

Transportation Corporation from 1948 to 1982. At the

hearing, Claimant testified that coal cars went by on the

tracks while he was working (TR. at 21). However, he was

unaware of whether the coal that was hauled on the tracks

was raw or processed coal (Jd. at 23). Claimant testified that

he never cleaned coal nor did he ever rake coal near a tipple.

He did, however, sometime load and unload coal into a

furnace and clean train wrecks (Jd. at 24). Claimant testified

that he was exposed to a lot of dust, gas, and smoke while

working for the railroad (Jd. at 26). On cross examination,

Claimant was asked:

Q: Do you know what a tipple is? Or a colliery or a

breaker?

I would say I don’t know.

Have you ever been to a tipple or a colliery or a

breaker?

That's —- I don’t understand what you mean.

© ?

Did you ever work as an underground coal Miner, Mr.

Brown?

od

Underground coal Miner?

Yes.

No, I worked underground but not as a coal Miner.

Did you ever work in a strip mine operation?

No.

POP Pe

(Id at 33.)

The record also contains the deposition testimony of

William Worthington, a systems engineer and track analyst

for Conrail (EX-9), and Frederick Day, an assistant engineer

in charge of bridges and buildings for Conrail (EX-8). Both

men averred that there were no coal mines or collieries in the

area that Claimant worked. Moreover, they testified that the

coal that was hauled in Claimant’s area was processed coal

that was directly consumed.

After considering the above, I find Claimant has not

presented sufficient evidence to establish that he was a coal

Miner. Claimant has not met the criteria elucidated in

Whisman. Claimant testified that he did not work as either

an undergound Miner or a strip Miner. He further testified

that he never raked nor cleaned coal. Moreover, Employer

established, through the deposition testimony of Mr.

Worthington and Mr. Day, that there were no coal mines or

collieries in Claimant’s work area. Mr. Worthington and Mr.

Day both testified that the only coal hauled in Claimant’s

area was processed coal. Claimant testified that he

sometimes unloaded coal into a pit at the heating plant and

he sometimes cleaned coal spills along the tracks (Tr. at 22,

Page 32

24, 29, 30, 35). However, this coal was already processed and

was being hauled to the ultimate consumer, and therefore,

does not qualify as coal mine employment. Claimant has not

met the “status” test as the coal was a finished product in the

stream of commerce. Moreover, Claimant has not met the

“function” test, as his work as a trackman was ancillary to

the delivery and commercial use of processed coal, rather

than an integral function in the extraction or preparation of

coal. Finally, Claimant clearly has failed to establish that he

worked in or around a coal mine or coal preparation site.

Claimant testified that he never worked in or around a coal

mine (Id. at 34). Moreover, he could not identify a tipple,

colliery or a breaker (Jd. at 33). After considering the above

evidence, Claimant has clearly failed to establish that he was

a Miner as defined in the Act.

ORDER

The claim of Willie Brown for benefits under the Act is

hereby DENIED.

BEN L. O'BRIEN

United States

Administrative Law Judge

NOTICE OF APPEAL RIGHTS: Pursuant to 20 CFR

§725.481, any party dissatisfied with this Decision and Order

may appeal it to the Benefits Review Board within 30 days

from the date of this decision, by filing a notice of appeal with

the Benefits Review Board, Suite 757, 1111 20th St., N.W.,

Washington, D.C. 20036.

Page 33

U.S. Department of Labor

Benefits Review Board

800 K Street N.W.

Washington, D.C. 20001-8001

BRB No. 89-1662 BLA.

OWCP NO. 260-01-1809.

WILLIE J. BROWN

Not-Published

Claimant-Petitioner Received

Nov. 1, 1991

W.J.B.

V.

PENN CENTRAL TRANSPORTATION

q COMPANY

Date Issued: OCT. 28, 1991

Employer-Respondent

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR

Party-in-Interest DECISION and ORDER

Appeal of the Decision and Order of Ben L. O’Brien,

Administrative Law Judge, United States Department of

Labor.

Willie J. Brown, Beckley, West Virginia, pro se.

John T. Pion (Dickie, McCamey & Chilcote, P.C.),

Pittsburgh, Pennsylvania, for employer.

Before: STAGE, Chief Administrative Appeals Judge,

SMITH, Administrative Appeals Judge, and LAWRENCE,

Administrative Law Judge.*

*Sitting as a temporary Board member by designation pursuant to the Longshore

and Harbor Workers’ Compensation Act, as amended in 1984, 33 U.S.C. §921(b) (5)

(Supp. V 1987).

| Page 34

PER CURIAM:

Claimant appeals, pro se, the Decision and Order

(87-BLA-1264) of Administrative Law Judge Ben L. O’Brien,

on a claim filed pursuant to the provisions of Title IV of the

Federal Coal Mine Health and Safety Act of 1969, as

amended, 30 U.S.C. $901 et seq. (the Act). Based on the date

of filing, May 16, 1986, the administrative law judge

adjudicated the claim pursuant to the permanent regulations

found at 20 C.F.R. Part 718. The administrative law judge

determined that the evidence of record was insufficient to

establish that claimant was a miner as defined in 20 C.F.R.

§725.101(a) (26). Accordingly, benefits were denied. The

employer, Penn Central Transportation Company, responds

seeking affirmance of the decision below.

In an appeal by a claimant proceeding without the

assistance of counsel, the Board considers the issue raised to

be whether the decision below is supported by substantial

evidence. McFall v. Jewell Ridge Coal Corp., 12 BLR 1-176

(1989); Stark v. Director, OWCP, 9 BLR 1-36 (1986). The

administrative law judge’s Decision and Order must be

affirmed if it is supported by substantial evidence, is rational,

and is in accordance with law. 33 U.S.C. §932(a), O’Keefe v.

Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359

(1965).

The administrative law judge found that claimant was

employed as a trackman with the Penn Central

Transportation Company from 1948 to 1982. See Decision

and Order at 3. In order to establish that claimant was a

miner within the meaning of the Act and regulations, the

Board has held that he must satisfy a three-prong test, viz.,

it must be established that the “miner” worked with coal that

was still in the course of being processed, and not yet a

finished product in the stream of commerce (status of the coal

test); that the “miner” performed a function integral to the

extraction or preparation of coal, and not one merely

ancillary to the delivery and commercial use of processed coal

(function test); and that the “miner’s” work occurred in or

around a coal mine or coal preparation facility (situs test).

Whisman v. Director, OWCP, 8 BLR 1-96 (1985); see also 30

U.S.C. §902(d); 20 C.F.R. §725.101(a) (26).

Page 35

Claimant testified that his employment as a trackman

brought him into contact with coal that was being

transported in freight trains. He stated also that he cleaned

up coal that spilled onto the tracks, that he cleaned up train

wrecks, and that daily he unloaded coal from cars and put it

into a pit at a heating plant. See Hearing Transcript at

21-24, 29, 30, 34-35. Claimant stated further that he did not

know the difference between raw and prepared coal. See

Hearing Transcript at 30. In determining whether claimant

satisfied the “status” test, the administrative law judge

considered the deposition testimony of Frederick Day and

William Worthington, two Conrail employees. Mr. Day

testified that the coal hauled in the New York division,

claimant’s division, was all directly consumed. See

Employer’s Exhibit 8 at 7-8. Mr. Worthington testified that

all of the coal hauled through the New York division was

prepared coal. See Employer’s Exhibit 9 at 16. Based on this

testimony, the administrative law judge found that claimant

failed to meet the “status” test because the coal around which

he worked was processed coal. This finding is within the

discretion of the administrative law judge, see Shaw v.

Director OWCP, 7 BLR 1-652 (1985), is supported by

substantial evidence, and is therefore affirmed.

The administrative law judge next determined that

claimant failed to meet the “function” test. The

administrative law judge stated that claimant’s work as a

trackman was ancillary to the delivery and commercial use of

processed coal, rather than an integral function in the

extraction or preparation of coal. See Decision and Order at

4. As the administrative law judge considered the witnesses’

testimony and permissibly determined that claimant worked

around trains that hauled processed coal, it does not appear

that claimant’s work was an integral function in the

extraction or preparation of coal. See Richardson v. Denver

Rio Grande Western Railroad Co., 7 BLR 1-700 (1985). Thus,

the administrative law judge’s determination that claimant

failed to meet the “function” test is affirmed as it is supported

by substantial evidence.

The administrative law judge then addressed the “situs”

test. The administrative law judge considered claimant’s

statements that he had never worked in or around a coal

Page 36

mine and that he could not identify a tipple, colliery, or a

breaker, as well as the testimony of Mr. Day and Mr.

Worthington that there were no mines in the area where

claimant worked. See Hearing Transcript at 33-34,

Employers Exhibits 8 at 12, 9 at 13. Based on his

consideration of this testimony, the administrative law judge

permissibly found that claimant failed to establish that he

worked in or around a coal mine or preparation site. See

Decision and Order at 4; see generally Musick v. Norfolk and

Western Railway Co., 6 BLR 1-862 (1984). Therefore, the

administrative law judge’s determination that claimant

failed to meet the “situs” test is affirmed as it is supported by

substantial evidence. As the administrative law judge’s

determination that claimant is not a miner as defined in the

Act is supported by substantial evidence this finding is

affirmed.

CERTITICATE OF SERVICE

BRB No. 89-1662 BLA:

Willie J. Brown v. Penn Central Transportation

Company and Director, Office of Workers’ Compensation

Programs (Case No. 87-BLA-1264)

(OWCP No. 260-01-1809)

I certify that this Decision and Order was sent this day

to:

October 28, 1991 Lisa L. Lahrman,

Executive Counsel

Clerk of the Board

Mr. Willie J. Brown Certified

Route 3, Box 42

Beckley, WV 25801

John T. Pion, Esq. Certified

Dickie, McCamey and Chilcote

Suite 400

Two PPG Place

Pittsburgh, PA 15222

Melissa Reardon Henry, Esq. Certified

Office of the Solicitor

7 U.S. Department of Labor

Suite N-2605, NDOL

Washington, DC 20210

Mr. Steven Breeskin

Deputy Commissioner

U.S. Department of Labor

Suite C-3516, NDOL

Washington, DC 20210

Judge Ben L. O’Brien

U.S. Department of Labor

Suite 605

200 S. Andrews Avenue

Ft. Lauderdale, FL 33301

Page 38

U.S. Department of Labor

Benefits Review Board

800 K Street N.W.

Washington, D.C. 20001-8001

BRB No. 89-1662 BLA.

Case No. 87-BLA-1264.

OWCP No. 260-01-1809.

WILLIE J. BROWN Received

Jan. 4, 1992

Claimant-Petitioner W.J.B.

Vv.

PENN CENTRAL TRANSPORTATION

COMPANY Date Issued: DEC. 30, 1991

Employer-Respondent

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR

ORDER DENYING

Party-in-Interest RECONSIDERATION

As no member of the panel has affirmatively voted to

vacate or modify the decision herein, the motion for

reconsideration filed by claimant is DENIED. 33 U.S.C.

§921(b) (5); 20 C.F.R. §§801.301(a), (b), 802.407(a), 802.409.

By Order of the Board:

Lisa L. Lahrman, Executive Counsel

Clerk of the Board

Accordingly, the Decision and Order denying benefits is

affirmed.

SO ORDERED.

BETTY J. STAGE, Chief

Administrative Appeals Judge

ROY P. SMITH

Administrative Appeals Judge

LEONARD N. LAWRENCE

Administrative Law Judge

Page 39

CERTIFICATE OF SERVICE

BRB No. 89-1662 BLA:

Willie J. Brown v. Penn Central Transportation

Company and Director, Office of Workers’ Compensation

Programs (Case No. 87-BLA-1264)

(OWCP No. 260-01-1809)

I certify that this Order was sent this day to:

DEC. 30, 1991 Lisa L. Lahrman,

Executive Counsel

Clerk of the Board

Mr. Willie J. Brown Certified

312 Harper Heights Road

Beckley, WV 25801

John T. Pion, Esq. Certified

Dickie, McCamey and Chilcote

Suite 400

Two PPG Place

Pittsburgh, PA 15222

Melissa Reardon Henry, Esq. Certified

Office of the Solicitor

U.S. Department of Labor

Suite N-2605, NDOL

Washington, DC 20210

Mr. Steven Breeskin

Deputy Commissioner

U.S. Department of Labor

Suite C-3516 NDOL

Washington, DC 20210

Judge Ben L. O’Brien

U. S. Department of Labor

Suite 605

200 S. Andrews Avenue

Ft. Lauderdale, FL 33301

| Page 40

OFFICE OF THE CLERK

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

21400 UNITED STATES COURTHOUSE

601 MARKET STREET

PHILADELPHIA 19106-1790

P. DOUGLAS SISK TELEPHONE

CLERK 215-597-2995

June 11, 1993

Mr. Willie J. Brown, Esquire

312 Harper Heights Road

Beckley, WV 25801

Re: Brown v. Penn Central Transportation Co., et al.

No. 92-3011.

Dear Mr. Brown:

Enclosed herewith is conformed copy of order filed today

in the above-entitled case.

Very truly yours,

Kathleen Grady

Deputy Clerk

Direct Dial: 597-5846

enc.

cc: (Michael J. Denney, Esq.

(Barry H. Joyner, Esq.

J. Lawson Johnston, Esq.

Page 41

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 92-3011

WILLIE J. BROWN,

Petitioner

Vv.

PENN CENTRAL TRANSPORTATION COMPANY and

DIRECTOR, OFFICE OF WOKERS’ COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents

On Petition for Review from the

Benefits Review Board

BRB No. 89-1662 BLA

SUR PETITION FOR PANEL REHEARING

WITH SUGGESTION FOR REHEARING IN BANC

Present: SLOVITER, Chief Judge, BECKER, STAPLETON,

MANSMANN, GREENBERG, HUTCHINSON, SCIRICA,

COWEN, NYGAARD,

ALITO, ROTH, and LEWIS, Circuit Judges,

The petition fer rehearing filed by Appellant, having been

submitted to the judges who participated in the decision of

this Court and to all the other available circuit judges in

active service, and no judge who concurred in the decision

having asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not having voted

for rehearing by the court in banc, the petition for rehearing

is DENIED.

BY THE COURT:

Circuit Judge

DATED: JUNE 11, 1993

Page 42

OFFICE OF THE CLERK

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

21400 United States Courthouse

601 Market Street

Philadelphia, PA 19106-1790

P. Douglas Sisk Telephone

Clerk 215-597-2995

June 22, 1993

Ms. Lisa L. Lahrman

Benefits Review Board

United States Department of Labor

800 K Street, N.W.

Room 500

Washington, DC 20001

RE: Docket No. 92-3011

Brown vs. Director OWCP

BRB No. 89-1662 BLA

Dear Ms. L.ahrman:

Enclosed is a certified copy of the judgment order in the

above-entitled case(s). The certified judgment order is issued

in lieu of a formal mandate and is to be treated in all respects

as a mandate.

(X) We return herewith the certified record in the case(s).

( ) We release herewith the certified list in lieu of the

record.

Kindly acknowledge receipt for same on the enclosed copy

of this letter.

Counsel are advised of the issuance of the mandate by

copy of this letter. A copy of the certified judgment order is

also enclosed showing costs taxed, if any.

Page 43

P. Douglas Sisk

Clerk

Direct Dial 597-5846

Enclosure

ce:

Willie J. Brown

(Michael J. Denney, Esq.

(Barry H. Joyner, Esq.

J. Lawson Johnston, Esq.

Page 44

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 92-3011

WILLIE J. BROWN,

Petitioner

Vv.

PENN CENTRAL TRANSPORTATION COMPANY and

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

Respondents

On Petition for Review from the

Benefits Review Board BRB No. 89-1662 BLA

Submitted Under Third Circuit Rule 12(6)

April 2, 1993

Before: BECKER, GREENBERG, and NYGAARD,

Circuit Judges.

JUDGMENT ORDER

After consideration of all contentions raised by appellant,

it is

ADJUDGED AND ORDERED that the judgment of the

district court be and is hereby AFFIRMED.

Costs taxed against Petitioner. y

BY THE COURT:

David R. Becker

Circuit Judge

Page 45

Attest:

P. Douglas Sisk, Clerk

Filed: May 20, 1993

Certified as a true copy and issued in lieu of a formal

mandate on June 22, 1993.

Attest:

P. Douglas Sisk, Clerk

U.S. Court of Appeals for the Third Circuit.

Page 46

CERTIFICATE OF SERVICE

I hereby certify copy of the petition for Writ of Certiorari

and appendix thereto have been furnished by registered U. S.

Mail to respondents, and the Honorable Robert C. Byrd, U. S.

Senator, Washington, D.C. 20510, Solicitor General Office,

Dept. of Justice, Washington, D.C. 20530, Attorney General

Office, State Capital of West Virginia, Charleston, West

Virginia 25305.

Re: Willie J. Brown, Petitioner vs. Penn Central

Transportation Co., Director, OWCP, U.S. Dept. of Labor,

U.S. Court of Appeals for the Third Circuit.

Respondents.

John T. Pion, Esq., P.C.

J. Lawson Johnston, Esq.

Dickie, McCamey &

Chilcote

Two PPG Place Suite 400

Pittsburgh, PA 15222

Michael J. Denney, Esq.

Barry H. Joyner, Esq.

U.S. Dept. of Labor

Office of Solicitor

Suite N-2605

200 Constitution Ave., N.W.

Washington, DC 20210

Office of the Clerk

Supreme Court of the U.S.

Washington, DC 20543

P. Douglas Sisk, Clerk

U.S. Court of Appeals for

the Third Circuit

21400 U.S. Courthouse

Philadelphia, PA 19106

The Honorable Robert C.

Byrd

United States Senator

Washington, DC 20510

Solicitor General Office

Department of Justice

Washington, DC 20530

Attorney General Office

State Capital of West

Virginia

Charleston, WV 25305

Registered Mail