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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 863

## Text

rFiLé

Supreme Court, U.S.

D

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

i

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?

as

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

|

iv

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

Vv
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

oe

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

a

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,

THOMAS E. JOHNSON
Counsel of Record

JOHNSON, SCHAAF, JONES
& SNELLING

343 South Dearborn Streét

Suite 1110 s

Chicago, Illinois 60604-3808

(312) 341-9366

Counsel for Amicus Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0929%3A2. Public record. Not legal advice.