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

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

rFiLé

Supreme Court, U.S.

a AUG 26 1992

No. 92-46

neers en creeer aaa Ol

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

VIRGINIA SMITH (WIDOW OF LINDEL SMITH)

(DECEASED), JERRY LYNN SMITH,

LARRY WAYNE SMITH, TINA MARIE SMITH,

JIMMIE DARRELL SMITH, ‘

AND BELINDA JOY MATEJA,

Petitioners,

Vv.

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE

THE CHICAGO BLACK LUNG ASSOCIATION

IN SUPPORT OF PETITIONERS

THOMAS E. JOHNSON

Counsel of Record

JOHNSON, SCHAAF, JONES

& SNELLING

343 South Dearborn Street

Suite 1110

Chicago, Illinois 60604-3808

(312) 341-9366

Counsel for Amicus Curiae

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

QUESTION PRESENTED FOR REVIEW

Whether the Sixth Circuit erred in Strictly construing

Federal Rule of Appellate Procedure ‘3(c)’s notice re-

quirements to prevent a Black Lung claimant’s statutory

successors from appealing in light of the Black Lung Act’s

presumption of a continuation of the claim upon death of

a party and the fact that the adverse party acknowledged

that the timely-filed Notice of Appeal provided sufficient

notice of the nature of the claim being appealed and the

identity of the appellants?

ii :

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW .... i

TABLE OF CORPTMISES sce cssecscsetcesasacs ii

TABLE OF AUTHORITIES ................. iii

INTEREST OF AMICUS CURIAE ........... 1

SUMMARY OF THE ARGUMENT ...........

ARIFUBIRINE 664sincecueea epee ees

I. The Sixth Circuit’s Strict Construction of the

Notice of Appeal Conflicts with the Presump-

tion that a Black Lung Claim Continues

Upon Death of a Party Absent an Affirm-

ative Showing That Successors in Interest Do

Not Wish to Continue the Claim........ 5

II. The Black Lung Benefits Act is to be Lib-

eralty ComatyG o6kcicedvsseen ee as 9

III. The Decision of the Sixth Circuit Also Con-

flicts with the Drafters’ Intent that the

Notice Requirements of Federal Rules of Ap-

pellate Procedure 3 and 15 be Liberally Con-

ig | PEPE TT ee rr ay 10

CONCLUSION 20: <sasesnueleeeee eee 13

ili

TABLE OF AUTHORITIES

CASES PAGE

Albedyll v. Wisconsin Porcelain Co., 947 F.2d 246

NN ee eon ee wy en awe ba ae 13

Echo v. Director, Office of Workers’ Comp. Pro-

grams, 744 F.2d 327 (8rd Cir. 1984) ....... 9

Foman v. Davis, 371 U.S. 178, 883 S. Ct. 227

Wat aehGah site haaeehonncaine xaves 13

In Re Grand Jury Proceedings, 875 F.2d 927 (1st

DPT CCAS hehe itaaehebcabeeeessacenss 12

Kowalchick v. Director, Office of Workers’ Comp.

Programs, 893 F.2d 615 (8rd Cir. 1990) .... 7

Minority Employees v. Tennessee Dept. of Employ-

ment Sec., 901 F.2d 1327 (6th Cir. en banc),

cert. denied, 111 S. Ct. 210 (1990)......... 11

Morris v. Mathews, 557 F.2d 563 (6th Cir. 1977). 6, 10

Mullins v. Director, Office of Workers’ Comp. Pro-

grams, 484 U.S. 135, 108 S. Ct. 427 (1987) ... 5

Orange v. Island Creek Coal Co., 786 F.2d 724 (6th

Es Cervera luke i eaenckaneesenne sax 10

Pittston Coal Group v. Sebben, 488 U.S. 105, 109

EE cs oa lac ubeneacuanseesesa 5

Virginia Primm (Widow of Alexander Primm, De-

ceased) v. Director, Office of Workers’ Comp.

Programs, 15 B.L. Rptr. 3-8 (ALJ Jan. 28,

DTC setae skchiaa ccd idheoedekhac tines 8

Clyde Rudd (Deceased) and Betty Rudd (Deceased

Widow) v. Sewell Coal Co., 15 B.L. Rptr. 3-14

I ME Es wae sces cok Sd wan de oa 8

Smith v. Barry, __. U.S. ___, 112 S. Ct. 678

ck 4c cane e eh usen wer ek boa Haeeae een 12

Southard v. Director, Office of Workers’ Comp.

Programs, 732 F.2d 66 (6th Cir. 1984)..... 10

Sulyma v. Director, Office of Workers’ Comp. Pro-

grams, 827 F.2d 922 (8rd Cir. 1987)....... 7

Torres v. Oakland Scavenger Co., 482 U.S. 312, 108

a ee 8 Brrr ere 12

Underhill v. Peabody Coal Co., 687 F.2d 217 (7th

Ch EE <b ce ob Gn eicke tic ieae pate ceneeetes 9

Wiley v. Consolidation Coal Co., 892 F.2d 498 (6th

Se SE hss caGee ec bxeaw cana chorasvertaees 6

STATUTES, REGULATIONS AND RULES

SD UL BG SONG Tie 6 occ cccsicscsccccess 5

OP Cees ee isn ka unc ncdccenrducuen 1, 3, 5,6

SD USE. Be Me 5 hie ec kecsatecddsdkcas 6

BO UL Ba. BUD Se ca cc anes ducunncsecses 7

SS Uae We EE hh eek id cnncvewedewsen 7,

Be CAs WE ED Sc pda dS cecendesencess

SD CPR. FG CER occ csccccesveseces

BD Cote OE CH hb eck ceivisscassesss

20 C.F.R. §§ 725.303-725.305 (1988) ............

ge? of Ae FF | errr errr

Be Ca ie eM ican ncccisccnasnwas

20 C.F.R. § 725.419, § 725.421 (1988) ...........

BO CPR. FG Pee CRD onc ccccccescesces

BP Ge SOE THD nh oc een vvkancdasions

NWonrannn wo wo oo oo

FOG, H. Age B.S CGO 6 ines vcacaccewecienas 4,11

Pod. BR. Ame. F.. Wb Ce cs csc iarcasaveccucee 4,11

Notes of Advisory Committee on Appellate Rules,

Pod. BR. Civ. Fs DG cc ccviscdvcssiacvesssns 11

OTHER

Falk, COUNSELING THE MINER SUFFERING FROM

RESPIRATORY DISEASE, 83 W. VA. L. REV. 833

COED swe vce dowa ee 0495055860050 ee 5

Michaels, THE CONSTITUTIONAL CONUNDRUM OF

BLACK LUNG APPEALS: TWO PROPOSED SOLU-

TIONS, 23 U. Micu. J.L. REF. 27 (1989) ... 6, 11-12

Ramsey and Habermann, THE FEDERAL BLACK

LUNG PROGRAM, THE VIEW FROM THE ToP, 87

W. Vas ka, Be. BE Cee oak icsceeacc bess 6

Stephans, THE SECOND DECADE OF FEDERAL

BLACK LUNG BENEFITS—THE SIXTH CIRCUIT

TIGHTENS THE REINS, 82 Det. C.L. REv. 813

CID i. i.ckédes sxeeenwneeebaenee es 12

No. 92-46

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

VIRGINIA SMITH (WIDOW OF LINDEL SMITH)

(DECEASED), JERRY LYNN SMITH,

LARRY WAYNE SMITH, TINA MARIE SMITH,

JIMMIE DARRELL SMITH,

AND BELINDA JOY MATEJA,

Petitioners,

Vv.

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE

THE CHICAGO BLACK LUNG ASSOCIATION

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

The Chicago Area Black Lung Association (“CABLA”’)

is a not-for-profit organization comprised of hundreds of

disabled miners, widows, and survivors. Founded in 1976,

CABLA exists to assist black lung victims and their fami-

lies in connection with their claims for benefits under the

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

CABLA assists former coal miners and their families

in the potentially lengthy and confusing process of obtain-

ing benefits. Through CABLA, over 400 disabled miners

and widows have received benefits, some of whom waited

over fifteen years to receive compensation. Presently,

CABLA is helping to coordinate the efforts of over, 200

coal miners and their families in their claims for Black

Lung Benefits in courts and administrative agencies through-

out the country.

CABLA is interested in this case because the rule of

law established by the Sixth Circuit contravenes the pre-

sumptions established in the regulatory scheme as well

as the sufficiency of notice of appeal standards issued by

this Court, other appellate courts, and the Sixth Circuit

itself. Since many of the claims that have been processed

with CABLA’s help involve coal miners who were employed

within the Sixth Judicial Circuit, the ruling in this case

will have a significant direct impact on numerous claims

filed through CABLA. If other circuits follow the Sixth

Circuit lead, the impact will be much more far reaching,

as the regulations establishing the continuity of claims

upon the death of the claimant will be effectively elimi-

nated.

Obtaining benefits is a lengthy and cumbersome process

for disabled coal miners. First, a claim is made to the

Department of Labor. If that claim is denied, it can be

reviewed by the Deputy Commissioner, Department of

Labor. If that denial is affirmed, a claimant may seek an

evidentiary hearing before an Administrative Law Judge

(“ALJ’’). If the ALJ also denies the claim, the claimant

may seek review by the Benefits Review Board (“BRB’’).

If the BRB affirms the ALJ’s denial, the claimant may

appeal to the Circuit Court of Appeals in the Circuit

where the coal miner was employed. This process takes

—3—

years. Through all administrative stages, the claim is

governed by the regulations promulgated under the statu-

tory authority of the Black Lung Benefits Act (30 U.S.C.

§§ 901-945) as codified at various Sections of 20 C.F.R.

The regulatory scheme contains a presumption that upon

the death of the named claimant, the claim will continue

to be pursued by the successors to the claim. Since pneu-

moconiosis is a progressively degenerative disease without

a cure, it is not at all uncommon for the miner that ini-

tially brings a claim for black lung benefits to die during

the pendency of the proceedings.

The rule adopted in this case effectively precludes

judicial review of agency denials when the initial claimant

dies while the claim is pending with the agency. Judicial

review will be denied because the regulations governing

the agency proceedings specifically require the continua-

tion of the claim after the claimant’s death without formal

substitution. Thus, unless an unnecessary substitution is

effected during the agency proceedings, an appeal from

an agency decision will always be brought in the name

of the deceased claimant, with substitution to occur in the

appellate court after jurisdiction is vested by a timely-

filed notice of appeal. However, the Sixth Circuit’s deci-

sion precludes this process. Because of the frequency with

which claimants predecease the final resolution of their

claims, the Sixth Circuit’s ruling on this issue has a

tremendous impact on hundreds of claims currently mired

in the agency proceedings.

Absent reversal, this situation is bound to be repeated.

Consequently, there is a strong public interest, which the

amicus advances in this brief, in declaring that Rule 3(c)

allows a statutory successor to be substituted after a

timely-filed notice of appeal.in the name of the original

claimant.

iil

SUMMARY OF THE ARGUMENT

Pneumoconiosis is a devastating, progressively degener-

ative disease which has afflicted over a million coal miners

throughout the nation. Miners afflicted with pneumoconi-

osis begin having difficulties breathing, shortness of

breath, and coughs. Because the disease is progressively

degenerative, afflicted miners eventually become disabled

and die. The disease is irreversible, and there is no cure.

To compensate the disabled miners, Congress enacted

the Black Lung Benefits Act. In recognition of the fact

that many claimants die during the pendency of their

claim, the regulations presume continuation of the claim

upon death of a party absent an affirmative showing to

the contrary. 20 C.F.R. 802.402. By dismissing the appeal

in the instant litigation because the claimant’s statutory

successors were not formally substituted, the Sixth Cir-

cuit’s decision conflicts with this presumption.

Both the Black Lung Act and Federal Rule of Appellate

Procedure 3(c)! were intended to be liberally construed.

Nevertheless, the Sixth Circuit strictly construed the

notice requirements of Rule 3(c) in direct conflict with the

drafters’ intent, decisions of this Court, and its own prece-

dent. The many diverging appellate court decisions ad-

dressing Rule 3(c)’s requirements evidence conflicting

understandings of this Court’s decision in Torres v. Oak-

land Scavenger Co.. The Chicago Area Black Lung Associ-

ation urges this Court to exercise its discretion and

review this case to reconcile the conflict between the

* Although Rule 15 — appeals from administrative agen-

cies, pmo are to Rule 3c), governing appeals from district

courts, because the language of the two rules is nearly identical

and most cases discussing the issue refer to Rule 3c).

regulation’s presumption of continuation of claims without

formal substitution and the Sixth Circuit’s ruling that

mandates formal substitution during the agency proceed-

ings. The resolution of this question is vitally important

to the families of the many miners who are likely to die

before their claims are finally resolved.

ARGUMENT

I. The Sixth Circuit’s Strict Construction of the Notice of

Appeal Conflicts with the Presumption that a Black

Lung Claim Continues Upon Death of a Party Absent

an Affirmative Showing That Successors in Interest Do

Not Wish to Continue The Claim.

As this Court has recognized, black lung disease (pneu-

moconiosis) is a devastating ailment. It afflicts “hundreds

of thousands of coal miners who have spent their entire

working lives inhaling coal dust.”” Pittston Coal Group v.

Sebben, 488 U.S. 105, 109 S. Ct. 414, 425 (1988) (Stevens,

J., dissenting). The coal dust causes the lining of the lungs

to harden which slowly disables the victim. In addition,

the disease leads to a host of other ailments such as

asthma, emphysema, and cancer. Due to the debilitating

nature of the disease, black lung victims and their families

suffer terribly. See, Falk, COUNSELING THE MINER SUFFER.

ING FROM RESPIRATORY DISEASE, 83 W. Va. L. REv. 833

(1981); see also Mullins v. Director, Office of Workers’ Comp.

Programs, 484 U.S. 135, 138, 108 S. Ct. 427, 429 (1987).

Prompted by the severity of pneumoconiosis, Congress

enacted four statutes aimed at protecting and compensat-

ing this nation’s coal miners.? The purpose of these stat-

2 See Federal Coal Mine Health and Safety Act of 1969, Pub. L.

No. 91-173, 83 Stat. 742, 30 U.S.C. §§ 801-945; Black Lung Benefits

(Footnote continued on following page)

allies

utes is to ensure the safety of mine workers and to pro-

vide benefits to afflicted miners and their dependents to

correct “the inadequacy of compensation to miners totally

disabled by coal workers’ pneumoconiosis”. Morris v.

Mathews, 557 F.2d 563, 567 (6th Cir. 1977); see also Wiley

v. Consolidation Coal Co., 892 F.2d 498, 503 (6th Cir.

1989). (“([The Black Lung Benefits Act] was enacted in

order to facilitate and liberalize the flow of compensation

to miners who acquire pneumoconiosis as a result of work-

ing in the coal mines.’’).

The flow of compensation to miners, however, has been

slowed to a trickle by the bureaucratic process. The mire

of bureaucracy facing the black lung litigant has been well-

doeumented.* The regulations require the claimant to file

a claim with the Social Security Administration or the De-

partment of Labor. 20 C.F.R. §§ 725.303—725.305 (1988).

The claim is then forwarded to the Office of Worker’s

Compensation Programs (““OWCP”’). 20 C.F.R. § 725.410

(1988). If the OWCP denies the claim, the claimant can

request review by the Deputy Commissioner. 20 C.F.R.

§ 725.417 (1988). If denied by the Deputy Commissioner,

the claim can be appealed to an Administrative Law

Judge (“ALJ’’) for an evidentiary hearing. 20 C.F.R.

§§ 725.419, 725.421 (1988). Either party can then appeal

2 continued

Reform Act of 1977, Pub. L. No. 95-239, 92 Stat. 95, 30 U.S.C.

§§ 901-945; Black Lung Benefits Amendments of 1981, Pub. L. No.

97-119, 97 Stat. 1643, 30 U.S.C. §§ 901-945; Lo reman’s & Har-

bor Worker’s Compensation Act, 33 U.S.C. $901 (1982) (incor-

porated into Black Lung Statutes by 30 U.S.C. § 932(a) (1982)).

3 See Ramsey and Habermann, THE FEDERAL BLack LUNG PRO.

GRAM, THE VIEW FROM THE Top, 87 W. Va. L. Rev. 575 (1985);

Michaels, THE CONSTITUTIONAL CONUNDRUM OF BLACK LUNG Ap.

PEALS: Two ProposeD SoLutions, 23 U. Micn. J.L. Rer. 27, 31

(1989).

iii

the ALJ’s decision to the Benefits Review Board (‘“‘BRB’’).

33 U.S.C. § 921(b) (1982). The BRB’s decision can be ap-

pealed to the Circuit Court for any of the states in which

the coal miner was employed. 33 U.S.C. § 921(c) (1982).

Thus a claimant faces five levels of administrative review

before his or her claim reaches the judiciary.

Each step in the process can take years, making a claim

for benefits an extraordinarily lengthy process. See e.g.

Kowalchick v. Director, Office of Workers’ Comp. Pro-

grams, 893 F.2d 615 (8rd Cir. 1990) (claim filed 17 years

before the court determined the miner was entitled to

benefits); Sulyma v. Director, Office of Workers’ Comp.

Programs, 827 F.2d 922 (8rd Cir. 1987) (court remanded

case to award benefits and not for a determination of facts

because of length of time claimant had sought benefits).

In light of the degenerative nature of this disease, it is

not at all uncommon for the original claimant to die dur-

ing the claim process and for the claim to be pursued by

his or her successors, as provided for in the regulations.

The Sixth Circuit’s opinion in this case stops the appeal

process before it reaches the judiciary because the suc-

cessors cannot file an appeal in their own name (because

they are not the parties below), cannot be substituted un-

til a notice of appeal vests the circuit court with jurisdic-

tion, and the court has rejected a timely filed notice of

appeal filed in the name of the deceased claimant.

In recognition of the likelihood that many miners do not

survive to see their claims fully adjudicated, the regula-

tions provide that claims will continue upon the death of

a party absent an affirmative showing that there is “no

person who wishes to continue the action and whose rights

may be prejudiced by dismissal.’ 20 C.F.R. § 802.402

(1988). Further, the regulations delineate several presump-

_ =

tions specifically designed to aid survivors in establishing

their right to benefits.

Indeed, in many cases where the claimant has died, the

agency proceedings have continued, as designed, without

formal substitution. See e.g., Clyde Rudd (Deceased) and

Betty Rudd (Deceased Widow) v. Sewell Coal Co., 15 B.L.

Rptr. 3-14 (ALJ Jan. 28, 1991) (ALJ heard and decided

merits of appeal despite uncertainty as to identity of suc-

cessors in interest who were entitled to benefits and fact

that caption of case included only deceased claimants);

Virginia Primm (Widow of Alexander Primm, Deceased)

v. Director, Office of Workers’ Comp. Programs, 15 B.L.

Rptr. 3-8 (ALJ Jan. 28, 1991) (despite the caption of the

case, Virginia Primm had passed away and the ALJ noted

in a footnote that the claim was being pursued by the

daughter of the claimants.)

The rationale behind this policy is clear: it would be un-

conscionable and inconsistent with the purposes of the

Black Lung Benefits Act to deny a claim for disability

benefits solely because the claimant died. In essence, it

would reward the inefficiencies in the Department of

Labor’s cumbersome and time-consuming claims litigation

process by providing immunity from valid claims if only

they can be strung out long enough for the miner to die.

This logically necessary but wholly perverse result could

not have been the intent of the Sixth Circuit in reaching

4 See 20 C.F.R. § 410.482 (1980); 30 U.S.C. § 921(X2)_ (1970) (pre-

sumption that miner’s death was due to pneumoconiosis); FR.

§ 410.456(a) (1980) (presumption of total disability); 20 C.F.R.

§ 725.545(c) (1980) (delineating line of succession if claimant dies);

20 C.F.R. § 410.402 (1980) (presumption of death from pneumo-

= if miner worked for 10 years and died from respiratory

ase).

iin

a conclusion that fully extirpates the regulation’s presump-

tion of continuity. Nevertheless, the Sixth Circuit’s swa

sponte dismissal of the appeal directly conflicts with the

sound, statutory presumption that the claim continues, in

a case in which both parties agree that the claim was

properly before the Court and that error occurred at the

administrative level. See Petitioners’ Petition for Writ of

Certiorari at 6 (S. Ct. No. 92-46).

The far-reaching impact of the Sixth Circuit’s erroneous

ruling cannot be minimized. The successors of hundreds

of other claimants who will die from pneumoconiosis and

its related conditions while their claims are pending with

the Department of Labor will not have a judicial forum

if their claims are denied by the Benefits Review Board.

II. The Black Lung Benefits Act is to be Liberally

Construed.

Congress has amended the Black' Lung Act on several

occasions to ensure the liberal award of benefits to quali-

fied miners and their dependents and to rectify what it

perceived was a practice of undue strictness in the award

of benefits. See Underhill v. Peabody Coal Co., 687 F.2d

217, 219-220 (7th Cir. 1982) (1977 Black Lung Reform Act

was to “expand the coverage contemplated by the original

act and to liberalize claim awards’’); Echo v. Director, Of-

fice of Workers’ Comp. Programs, 744 F.2d 327, 329-330

(8rd Cir. 1984) (1972 amendments were enacted because

“Congress was displeased with the Secretary’s stringent

application of the legislation.”) By strictly construing the

notice requirements, the Sixth Circuit’s decision is, at odds

with Congressional intent.

The Black Lung Regulations, promulgated pursuant to

the Act, were designed so that claims for benefits would

=~ =

continue upon the death of a party without substitution.

“Courts are obligated to follow this Act so as to give

realistic and not niggardly effect to the stated congres-

sional purpose.” Morris v. Mathews, 557 F.2d 563, 570

(6th Cir. 1977). Courts have acknowledged that the “Act

is remedial and should be liberally construed so that all

doubts are resolved in favor of the disabled miner.” See

Orange v. Island Creek Coal Co., 786 F.2d 724, 727 (6th

Cir. 1986) (citation omitted). By holding that the statutory

successors must be formally substituted, the Sixth Circuit

has ignored its own precedent. In so doing, it has precluded

the very large class of successors of claimants who die

while their claim is pe 1¢ing with the Department of Labor

from receiving their benefits.

The Sixth Circuit’s decision also contravenes the policy

it set forth in Southard v. Director, Office of Workers’

Comp. Programs, 732 F.2d 66 (6th Cir. 1984). In South-

ard, the court stated that the Black Lung Act ‘‘must be

liberally construed to include the largest number of miners

as benefit recipients.” Jd. at 71 (citations omitted). In con-

trast, in the present case, the Sixth Circuit’s rigid formal-

ism denies many claimants the opportunity to seek their

benefits. Thus, the Sixth Circuit’s holding requires rever-

sal because it disregards the mandate that the Act be lib-

erally construed and it unduly hinders the flow of com-

pensation to entitled claimants in conflict with congres-

sional and administrative agency objectives.

III. The Decision of the Sixth Circuit Also Conflicts with

the Drafters’ Intent that the Notice Requirements of

. Federal Rules of Appellate Procedure 3 and 15 be

Liberally Construed.

Not only is the decision in this case contrary to the

spirit and letter of the Black Lung regulations, but it also

violates the sufficiency of notice standard stated by the

Drafters of the Rule, this Court, and the majority of courts

who have addressed the issue, including the Sixth Circuit

itself.

Federal Rule of Appellate Procedure 3(c) states that “{tJhe

notice of appeal shall specify the party or parties taking

the appeal”. Fed. R. App. P. 3(c) (1989). Because Virginia

Smith died before her appeal and her survivors were not

formally substituted at the administrative level, the Sixth

Circuit denied the appeal for lack of jurisdiction. However,

the Drafters of Rules 3(c) and 15 intended that they be

interpreted liberally, especially when a strict construction

of their requirements would lead to a harsh result.

Because of the fact that the timely filing of the notice

of appeal has been characterized as jurisdictional (cita-

tion omitted), it is important that the right to ap-

peal not be lost by mistakes of mere form. .. . In

a number of decided cases it has been held that so

long as the function of notice is met by the filing of

a paper indicating an intention to appeal, the sub-

stance of the rule has been complied with.

Notes of Advisory Committee on Appellate Rules, Fed.

R. App. P. 3 (1989). The appellee has conceded that the

notice of appeal in the present litigation sufficiently placed

him on notice. Nevertheless, the court felt bound by

Minority Employees v. Tennessee Dept. of Employment

Sec., 901 F.2d 1327 (6th Cir. en banc), cert. denied, 111

S. Ct. 210 (1990), to construe strictly the notice require-

ments. For the reasons set forth in Petitioner’s Petition

for Writ of Certiorari, CABLA agrees that it was a rever-

sible error to dismiss the instant appeal.5

5 The Sixth Circuit has gained some notoriety for dismissing

Black Lung claims for procedural technicalities. See, Michaels,

(Footnote continued on following page)

—12—

A proper application of the sufficiency of notice stan-

dards to similar facts is found In re Grand Jury Proceed-

ings, 875 F.2d 927 (1st Cir. 1989). In this case, an Assis-

tant United States Attorney appealed from a conviction

for contempt of court. The Notice of Appeal named the

“United States of America’ as appellant. The court held

that the United States of America did not have standing.

Nevertheless, the court retained jurisdiction. Citing Tor-

res, the First Circuit held that the Notice of Appeal suf-

ficiently notified the Court and the other party that the

attorney intended to appeal:

This is not a multi-party case where the notice of ap-

peal fails to make clear which party or parties in-

tend to appeal, thereby providing notice so vague as

to deprive the court of jurisdiction over the unnamed

parties’ -appeals. Cf. Torres, 108 S.Ct. at 2409. The

problem with [the attorney’s} notice of appeal is an

‘informality of form or title’ which should not lead

to dismissal. See Fed. R. App. P. 3(c).

Id. at 931.

Rule 3(c) must be construed liberally. See Smith v.

Barry, __. U.S. ___., 112 8. Ct. 678, 681 (1992) (“Courts

will liberally construe the requirements of Rule 3.”) “[MJere

technicalities should not stand in the way of considera-

tion of a case on its merits.” Torres 108 S. Ct. at 316.

5 continued

THE CONSTITUTIONAL CONUNDRUM OF BLack LuNG APPEALS: Two

Proposep So.utions, 23 U. Micu. J.L. Rer. 27, 27 (1989) (“An

alarming injustice of the American legal systern is the way in

which courts dismiss many pneumoconiosis (black iung) appeals

because the petitioner fails to conform with procedural guidelines.

Nowhere is this problem more acute than in the United States

Court of Appeals for the Sixth Circuit.’’); see also Stephans, THE

SeconpD DecaDE oF FEDERAL Biack LunG BENEFITS—THE SIXTH

Circuit TIGHTENS THE REeEIns, 82 Det. C.L. Rev. 813 (1982).

—13—

“The Federal Rules reject the approach that pleading is

a game of skill in which one misstep by counsel may be

decisive to the outcome and accept the principle that the

purpose of pleading is to facilitate a proper decision on

the merits.” Albedyll v. Wisconsin Porcelain Co., 947

F.2d 246, 254 (7th Cir. 1991) (citing Foman v. Davis, 371

U.S. 178, 181-182, 83 S. Ct. 227, 229-230 (1962)). The Sixth

Circuit erred when it refused to construe the Notice of

Appeal in this fashion. The weight of authority rejects

the Sixth Circuit reasoning; but to the extent conflicting

authority exists, this case presents an opportunity for the

Court to exercise its authority to resolve a conflict among

the Courts of Appeal on an important issue of law that

if left uncorrected will affect hundreds of black lung

claimants.

CONCLUSION

The amicus respectfully requests that this Court grant

the petition for writ of certiorari and reverse the deci-

sion of the Sixth Circuit. By doing so, the Court would

correct an alarming injustice, prevent further injustices,

and at the same time clarify an important issue of law.

Respectfully submitted,