HARRIET PAULEY, SURVIVOR OF JOHN C. PAULEY, PETITIONER V.
BETHENERGY MINES, INC., AND DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR

   CLINCHFIELD COAL COMPANY, PETITIONER V. DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, AND
JOHN A. TAYLOR

   CONSOLIDATION COAL COMPANY, PETITIONER V. DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, AND
ALBERT C. DAYTON

   No. 89-1714, No. 90-113, No. 90-114

   In The Supreme Court Of The United States

   October Term, 1990

   On Writs Of Certiorari To The United States Courts Of Appeals For
The Third And Fourth Circuits

   Brief For The Director, Office Of Workers' Compensation Programs,
United States Department Of Labor

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Constitutional, statutory, and regulatory provisions
     involved
   Statement
   Summary of argument
   Argument:
      The "criteria" set out in the rebuttal provisions of
      the Department of Labor's presumption regulation
      are not more restrictive than those applicable under
      the Part B program
      A. None of the claimants has shown that he would
         have obtained benefits under the Part B program
      B. Section 402(f)(2) does not bar a party contesting
         entitlement from showing that a claimant
         does not have pneumoconiosis or is not disabled
         by the disease
   Conclusion

                            OPINIONS BELOW

   The opinion of the Third Circuit in Pauley v. Bethenergy Mines,
Inc. (89-1714 Pet. App. 1-19) is reported at 890 F.2d 1295.  The
corresponding opinions of the Benefits Review Board (89-1714 Pet. App.
20-22) and the administrative law judge (Pet. App. 23-41) are
unreported.

   The opinion of the Fourth Circuit in Clinchfield Coal Co. v.
Director, OWCP (90-113 Pet. App. 4a-16a) is reported at 895 F.2d 178.
The corresponding opinions of the Benefits Review Board (90-113 Pet.
App. 17a-19a) and the administrative law judge (Pet. App. 20a-32a) are
unreported.

   The opinion of the Fourth Circuit in Consolidation Coal Co. v.
Director, OWCP (90-114 Pet. App. 2-7) is reported at 895 F.2d 173.
The corresponding opinions of the Benefits Review Board (90-114 Pet.
App. 8-13) and the administrative law judge (Pet. App. 14-27) are
unreported.

                             JURISDICTION

   The Third Circuit entered judgment in Pauley v. Bethenergy Mines,
Inc. on December 7, 1989, and denied a petition for rehearing on
February 6, 1990.  89-1714 Pet. App. 42-43.  The petition for a writ
of certiorari was filed on May 7, 1990.

   The judgments of the Fourth Circuit in Clinchfield Coal Co. v.
Director, OWCP and Consolidation Coal Co. v. Director, OWCP were both
entered on February 5, 1990, and orders denying petitions for
rehearing in both cases were entered on April 20, 1990.  90-113 Pet.
App. 1a;  90-114 Pet. App. 1.  Petitions for writs of certiorari were
filed in both cases on July 17, 1990.

   On October 29, 1990, the Court granted the petitions and
consolidated the three cases.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1) in all three cases.

     CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED

   The Fifth Amendment to the United States Constitution;  Sections
402(f) and 411(c) of the Black Lung Benefits Act of 1972, 30 U.S.C.
902(f) and 921(c);  the Department of Health, Education, and Welfare's
presumption regulation, 20 C.F.R. 410.490;  and the Department of
Labor's presumption regulation, 20 C.F.R. 727.203, are reprinted in
the appendix to this brief.  App., infra, 1a-10a.

                          QUESTION PRESENTED

   Whether persons who do not have black lung disease or are not
disabled by it are entitled to benefits under the Black Lung Benefits
Act.

                               STATEMENT

   1. Statutory and regulatory framework.  The Black Lung Benefits
Act, /1/ 30 U.S.C. 901 et seq., provides benefits "to those who have
become totally disabled because of pneumoconiosis, a chronic
respiratory and pulmonary disease arising from coal mine employment."
/2/ Pittston Coal Group v. Sebben, 488 U.S. 105, 108 (1988), citing
Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 141 (1987);  see 30
U.S.C. 901(a).  Disability claims filed by June 30, 1973, were
considered by the Department of Health, Education, and Welfare (HEW)
under Part B of the Act, which established a federally financed
program.  /3/ Disability claims filed after that date are considered
by the Department of Labor (DOL) under Part C of the Act, which
established a program financed by the coal industry.  Sebben, 488 U.S.
at 109-110;  30 U.S.C. 925, 931-932.

   a. The Part B Program.  In Section 411(c) of the Act, 30 U.S.C.
921(c), Congress established a number of presumptions to govern the
Part B program.  The first presumption provides that in the case of a
claimant suffering from pneumoconiosis who worked for at least ten
years as a coal miner, "there shall be a rebuttable presumption that
his pneumoconiosis arose out of such employment." 30 U.S.C. 921(c)
(1).  The second provision sets out a similar causation presumption
with respect to miners with at least ten years' experience who died
from a respiratory disease.  30 U.S.C. 921(c)(2).  The third provision
establishes an irrebuttable presumption -- the only such presumption
governing claims adjudication -- that miners presenting x-ray, biopsy,
or autopsy evidence showing complicated pneumoconiosis are entitled to
benefits.  /4/ 30 U.S.C. 921(c)(3).

   The fourth statutory presumption, set out in Section 411(c)(4) of
the Act, was added to the Act in 1972.  It provides a rebuttable
presumption of entitlement to benefits for miners with at least 15
years of coal mine experience who cannot demonstrate complicated
pneumoconiosis by means of x-ray, biopsy, or autopsy evidence, but who
present "other evidence demonstrat(ing) the existence of a totally
disabling respiratory or pulmonary impairment." 30 U.S.C. 921(c)(4).
The provision further states that "(t)he Secretary may rebut such
presumption only by establishing that (A) such miner does not, or did
not, have pneumoconiosis, or that (B) his respiratory or pulmonary
impairment did not arise out of, or in connection with, employment in
a coal mine." Ibid.  /5/

   Shortly after enactment of the 1972 amendments that included
Section 411(c)(4), the Secretary of HEW promulgated a presumption
regulation, 20 C.F.R. 410.490, setting out adjudicatory rules for Part
B claims.  The regulation was drafted in a most confusing manner.  See
Sebben, 488 U.S. at 109.  Subsection (b), which governs invocation of
the presumption, has three subparts.  Subsection (b)(1) provides that
a claimant must present either (i) x-ray, biopsy, or autopsy evidence
showing the existence of pneumoconiosis, or (ii) "(i)n the case of a
miner employed for at least 15 years in underground or comparable coal
mine employment," ventilatory test scores showing the presence of a
chronic respiratory or pulmonary disease.  Subsection (b)(2) calls for
proof that "(t)he impairment established in accordance with paragraph
(b)(1) of this section arose out of coal mine employment (see Sections
410.416 and 410.456)." /6/ Subsection (b)(3) provides that "a miner
who meets the medical requirements in paragraph (b)(1)(ii) of this
section" (the provision relating to ventilatory test scores) is
presumed to be entitled to benefits "if he has at least 10 years of
the requisite coal mine employment."

   Subsection (c) of HEW's regulation provides for rebuttal of the
presumption.  It states that the claimant is not entitled to benefits
"if:  (1) There is evidence that the individual is, in fact, doing his
usual coal mine work or comparable and gainful work (see Section
410.412(a)(1)), or (2) Other evidence, including physical performance
tests * * *, establish(es) that the individual is able to do his usual
coal mine work or comparable and gainful work (see Section 410.412
(a)(1))." /7/

   b. The Part C program.  Initially, Part C claims were adjudicated
by DOL under standards established by HEW that were more stringent in
certain key respects than those applied to Part B claims.  /8/ In
1978, Congress gave DOL authority to promulgate permanent regulations
to govern the Part C program.  It also provided in Section 402(f)(2)
of the statute, 30 U.S.C. 902(f)(2), that the "(c)riteria" applied to
claims filed before those permanent regulations were in place "shall
not be more restrictive than the criteria applicable to a claim filed
on June 30, 1973." The permanent regulations took effect on April 1,
1980.  Thus, claims filed before that date are subject to the
requirement set out in Section 402(f)(2) of the Act, and therefore
must be adjudicated under criteria no more restrictive than those
applied to Part B claims.  /9/

   In response to Section 402(f)(2), the Secretary of Labor issued an
interim presumption regulation, 20 C.F.R. 727.203.  The invocation
portion of DOL's regulation is similar to HEW's regulation in that it
provides that claimants may use (1) x-ray, biopsy, or autopsy
evidence, or (2) ventilatory study scores identical to those in HEW's
regulation.  20 C.F.R. 727.203(a)(1) and (2).  DOL's regulation goes
beyond HEW's in allowing the presumption to be triggered by (3)
blood-gas studies, (4) other medical evidence, including a physician's
opinion, and (5) in the case of a deceased miner and in the absence of
relevant medical evidence, by the affidavit of a survivor.  20 C.F.R.
727.203(a)(3)-(5).  The invocation portion of DOL's regulation also
differs from HEW's in that it contains no provision directly
comparable to subsection (b)(2), the provision stating that, in order
to invoke HEW's presumption, the claimant had to show that "(t)he
impairment * * * arose out of coal mine employment." /10/

   Like HEW's regulation, DOL's regulation provides that the
presumption may be rebutted by proof that a claimant (1) is doing his
usual coal mine work or work comparable to it or (2) is capable of
doing such work.  /11/ 20 C.F.R. 727.203(b)(1) and (2).  Unlike HEW's
regulation, DOL's regulation expressly allows rebuttal by proof that
(3) "the total disability or death of the miner did not arise in whole
or in part from coal mine employment" or (4) "the miner does not, or
did not, have pneumoconiosis." 20 C.F.R. 727.203(b)(3) and (4).  Those
two rebuttal provisions are very similar to the provisions set out in
Section 411(c)(4) of the Act, which provides that the presumption
established in that provision may be rebutted by evidence that "(A)
such miner does not, or did not, have pneumoconiosis, or that (B) his
respiratory or pulmonary impairment did not arise out of, or in
connection with, employment in a coal mine." /12/ 30 U.S.C. 921(c)(4).

   2. The three consolidated cases.  In Pauley v. Bethenergy Mines,
which arose in the Third Circuit, the claimant was able to invoke the
presumption because the evidence showed that the miner had
pneumoconiosis, but the presumption was rebutted under DOL's third
method because the evidence also showed that the miner's disability
"did not arise even in part out of coal mine employment." 89-1714 Pet.
App. 13.  The court of appeals held that the third rebuttal provision
is not invalid under Section 402(f)(2), and thus the claimant was not
entitled to benefits.  In the Taylor and Dayton cases, which arose in
the Fourth Circuit, the claimants were able to invoke the presumption
but it was rebutted under DOL's fourth method by evidence that the
miners did not have pneumoconiosis.  However, the court of appeals
held that DOL's fourth rebuttal method is invalid under Section
402(f)(2) because, in the court's view, the question whether a
claimant has pneumoconiosis "is superfluous and has no bearing on the
case." 90-114 Pet. App. 7 n.*.

   a. Pauley v. Bethenergy Mines.  In 1978, John Pauley applied for
black lung benefits.  89-1714 Pet. App. 24-25.  An ALJ concluded that
Pauley had properly invoked the presumption of eligibility for
benefits based on his 30 years of coal mining and on x-ray evidence
showing that he had pneumoconiosis.  Id. at 4, 36.  Bethenergy Mines
conceded the existence of the disease and its relationship to coal
mining.  Ibid.  But it sought to rebut the presumption under DOL's
third rebuttal provision by showing that, although Pauley was
disabled, his disability did not arise in whole or in part from the
disease.  The ALJ concluded that the operator had succeeded in
rebutting the presumption since the operator had shown that
"pneumoconiosis is not a contributing factor in claimant's
disability." Id. at 38.  Rather, the medical evidence showed that
Pauley was disabled due to arthritis and residual hemiparesis
resulting from a stroke.  Id. at 36-37.  However, the ALJ went on to
hold that the third rebuttal provision in DOL's regulation is contrary
to Section 402(f)(2) because there is no comparable rebuttal provision
on the face of HEW's regulation.  Accordingly, the ALJ held that "the
claimant is entitled to benefits." Pet. App. 40.  The Benefits Review
Board affirmed.  Id. at 20-22.  /13/

   The Third Circuit reversed the award of benefits.  89-1714 Pet.
App. 1-19.  It began by noting that "(t)he purpose of the Benefits Act
is to provide a recovery for a miner totally disabled at least in part
by pneumoconiosis if the disability arises out of coal mine
employment," and that the ALJ had made unchallenged findings that
"Pauley's disability did not arise even in part out of coal mine
employment." Id. at 12, 13.  It then determined that Section 402(f)(2)
did not require an award of benefits in that circumstance, for two
reasons.  First, the court did not think that Congress intended
Section 402(f)(2) to preclude proof that a claimant did not have
pneumoconiosis or was not disabled by the disease.  Alternatively,
although there was "no case law indicating how the rebuttal provisions
of 20 C.F.R. Section 410.490 were applied by the Department of Health,
Education and Welfare," the court did not believe that HEW would have
awarded benefits under the facts of this case.  Id. at 17a.  Thus, the
court concluded, the same result was required under both regulations,
so that DOL's regulation was not more restrictive than HEW's.

   b. Clinchfield Coal Co. v. John Taylor.  In 1976, John Taylor
applied for black lung benefits.  90-113 Pet. App. 5a, 24a.  An ALJ
found that Taylor had properly invoked the presumption of eligibility
for benefits based on his 12 years of coal mining and on blood gas
tests showing an impairment in the transfer of oxygen from his lungs
to his blood.  Id. at 6a, 24-26a.  The ALJ also concluded, however,
that Clinchfield Coal had rebutted the presumption under DOL's third
and fourth rebuttal methods by proving that Taylor was not totally
disabled and, indeed, did not have pneumoconiosis.  90-113 Pet. App.
31a.  The ALJ relied on negative x-ray evidence, non-qualifying
ventilatory test scores, and certain medical reports that he found
more persuasive than conflicting x-ray readings and other medical
reports.  That evidence supported the conclusion that Taylor suffered
from chronic bronchitis caused by obesity and 30 years of cigarette
smoking rather than from pneumoconiosis.  Id. at 27a-31a.
Accordingly, the ALJ denied benefits.  Id. at 31a.  The Benefits
Review Board affirmed, concluding that the ALJ's decision was
supported by substantial evidence.  Id. at 18a-19a.

   A divided Fourth Circuit reversed.  90-113 Pet. App. 4a-16a.  It
first dismissed the argument that DOL's regulation cannot be
considered "more restrictive" than HEW's regulation as applied to
Taylor because (a) he invoked the presumption based on blood gas
studies, a method of invocation available under DOL's regulation but
not HEW's and (b) Taylor could not invoke the presumption under HEW's
regulation on the basis of his x-rays and ventilatory test scores.
Id. at 11a, 27a.  The court thought it "a matter of indifference" how
the claimant invoked the presumption of eligibility and therefore did
not accept "any argument that the rebuttal provisions must be pegged
to the invocation provisions." Id. at 11a.

   The court then determined that DOL's third and fourth rebuttal
methods "permit rebuttal of more elements of entitlement to benefits
than do the interim HEW regulations which permit rebuttal solely
through attacks on the element of total disability." 90-113 Pet. App.
12a.  The court held that the additional methods violate Section
402(f)(2).  The court then qualified its opinion by reading HEW's
regulation as allowing a rebuttal method "similar" to DOL's third
method, which authorizes rebuttal by proof that the claimant's
disability was not caused by coal mine employment.  90-113 Pet. App.
14a.  The court remanded the case for further consideration of that
issue.  Id. at 14a-15a.  /14/

   Chief Judge Ervin dissented.  90-113 Pet. App. 15a-16a.  He agreed
with the majority that its decision conflicted with the Sixth
Circuit's decision in Youghiogheny & Ohio Coal Co. v. Milliken, 866
F.2d 195 (1989), and also noted a conflict with the Third Circuit's
decision in Pauley.  In his view, the decisions of those circuits
upholding Labor's rebuttal provisions did "less violence to
congressional intent, and avoid(ed) both upsetting the statutory
scheme and raising due process problems." 90-113 Pet. App. 16a.

   c. Consolidation Coal Co. v. Albert Dayton.  In 1979, Albert Dayton
applied for black lung benefits.  90-114 Pet. App. 3.  An ALJ found
that Dayton had properly invoked the presumption of eligibility for
benefits based on his 17 years of coal mining and on ventilatory test
scores showing a chronic pulmonary condition.  Id. at 15, 20.  The ALJ
also concluded, however, that Consolidation Coal had rebutted the
presumption under DOL's second rebuttal method by proving that
Dayton's pulmonary impairment was not totally disabling.  Id. at
20-24.  In addition, the ALJ concluded that the medical evidence
showed that Dayton did not have pneumoconiosis, so that the
presumption was also rebutted under DOL's fourth method.  Id. at
24-26.  Accordingly, the ALJ denied Dayton's application for benefits.
 Id. at 27.

   The Benefits Review Board affirmed.  90-114 Pet. App. 8-13.  Like
the ALJ, the Board concluded that the medical evidence showed that
Dayton's pulmonary condition was unrelated to coal dust exposure, but
was instead related to his smoking history and to other ailments.  It
accordingly held that the employer had rebutted the presumption under
DOL's fourth method.  Id. at 11-12.  The conclusion that Dayton did
not have pneumoconiosis, the Board added, would justify rebuttal under
HEW's regulation as well.  Id. at 12 n.2.  The Board found it
unnecessary to decide whether the ALJ had correctly concluded that the
employer had rebutted the presumption under DOL's second method.  Id.
at 10 n.1.

   The Fourth Circuit reversed.  90-114 Pet. App. 2-7.  Relying on its
decision in Taylor v. Clinchfield Coal Co. (No. 90-113), the court
held that Section 402(f)(2) required Dayton's claim to be adjudicated
"under the less restrictive rebuttal standards" of HEW's regulation.
90-114 Pet. App. 5.  Under HEW's standards, the court stated, DOL's
fourth method "should not have been available to the coal operator."
Id. at 6.  Thus, in the court's view, the finding that Dayton does not
have pneumoconiosis "is superfluous and has no bearing on the case."
Id. at 7 n.*.  The court recognized that this result posed an
"interesting" due process question, but decided not to consider the
constitutional implications of its decision because only the Director
of the Office of Workers' Compensation Programs, and not the coal mine
operator, had raised the issue.  Id. at 6.

                          SUMMARY OF ARGUMENT

   The purpose of the Black Lung Benefits Act is to provide benefits
"to coal miners who are totally disabled due to pneumoconiosis." 30
U.S.C. 901(a).  The ALJs found that neither Taylor nor Dayton has
pneumoconiosis.  Pauley had simple pneumoconiosis and was not able to
do coal mine work, but his disability was not caused, even in part, by
his pneumoconiosis.  Accordingly, none of the claimants has shown that
he is entitled to benefits.

   1. By providing for rebuttal by proof that a miner does not have
pneumoconiosis, or by proof that the miner's disability did not arise
from coal mine employment, DOL's regulation is not "more restrictive"
than HEW's within the meaning of Section 402 (f)(2).  While it is not
clear exactly how HEW applied its opaque regulation, the Third Circuit
correctly concluded that HEW would not have awarded benefits on the
facts of these cases.  A contrary conclusion -- that HEW awarded
benefits to miners who did not have pneumoconiosis or who were not
disabled by it -- would mean that the agency was using federal funds
to pay benefits to claimants who were not entitled to benefits under
the Act.  It should not be presumed that HEW was violating the law in
that manner.

   Analysis of HEW's regulation confirms that claimants such as those
in these cases would not have obtained benefits under the Part B
program.  Subsection (b)(2) of HEW's regulation states that the
claimant is required to show that his impairment "arose out of coal
mine employment." That provision is similar to DOL's third rebuttal
provision, which authorizes rebuttal where the disability "did not
arise in whole or in part out of coal mine employment." With respect
to DOL's fourth rebuttal provision, HEW may have also relied on
subsection (b)(2) of its regulation in concluding that miners who did
not have pneumoconiosis were not entitled to benefits.  Although
"pneumoconiosis," when used as a medical term, refers to a disease of
the respiratory system that may be caused by exposure to a variety of
substances, as defined in the Act the term refers to "a chronic dust
disease * * * arising out of coal mine employment." 30 U.S.C. 902(b).
The requirement in subsection (b)(2) of HEW's regulation that the
"impairment * * * arose out of coal mine employment" parallels the
statutory definition of "pneumoconiosis." Thus, under a reasonable
reading of subsection (b)(2), a claimant who did not have
pneumoconiosis would not qualify for benefits.

   2. However HEW's regulation was applied, it is clear that Congress,
in enacting Section 402(f)(2), did not intend to foreclose inquiry
into whether a miner has pneumoconiosis and is disabled by it.  That
Section did not direct DOL to apply HEW's regulation;  rather, it
directed DOL to apply criteria no more restrictive than those
applicable to Part B claimants.  The rebuttable presumption set out in
Section 411(c)(4) expressly provided for rebuttal by evidence that the
miner did not have pneumoconiosis or that his impairment, however
disabling, was not caused by coal mine work.  Surely the Congress that
enacted Section 402(f)(2) would have assumed that the rebuttal methods
set out in Section 411(c)(4) of the Act were available under the Part
B program, even if HEW did not actually apply them.  In addition,
Congress had enacted a rebuttable presumption in Section 411(c)(1)
providing that pneumoconiosis was presumed to have been caused by coal
mine employment where a miner had ten years of coal mine experience,
yet the claimants in this case contend that HEW applied irrebuttable
causation presumptions.

   Moreover, the Congress that enacted Section 402 (f)(2) in 1978 was
undoubtedly aware of this Court's 1976 decision in Usery v. Turner
Elkhorn Mining Co., 428 U.S.  1. In that case this Court placed a
gloss on Section 411(c)(3), the Part B provision establishing an
irrebuttable presumption in favor of claimants proving the existence
of complicated pneumoconiosis.  The Court stated that although Section
411(c)(3) "does not explicitly provide that the disease must be one
arising out of employment in a coal mine," it was clear under the Act
"that an operator can be liable only for pneumoconiosis arising out of
employment in a coal mine." 428 U.S. at 22 n.21.  Congress reasonably
would have thought that such a requirement applied generally under the
Part B program.

   A serious constitutional question would be presented by a holding
that coal mine operators must pay black lung benefits in cases where
they are foreclosed from presenting evidence that the miner does not
have black lung disease or is not disabled by it.  Cf. Turner Elkhorn
Mining, 428 U.S. at 35.  Such a holding should be avoided where, as
here, it is not mandated by the statute.

   Less than two months after Section 402(f)(2) was enacted, DOL
proposed the regulation that the claimants have challenged.  DOL's
regulation set out two rebuttal methods that closely track those in
HEW's regulation and two that closely track those in Section
411(c)(4).  That construction of this complex statute is, at the
least, reasonable.  Moreover, it is plainly preferable to the
claimants' alternative construction, under which black lung benefits
must be awarded to claimants who are not disabled by black lung
disease.

                               ARGUMENT

   THE "CRITERIA" SET OUT IN THE REBUTTAL PROVISIONS OF THE DEPARTMENT
OF LABOR'S PRESUMPTION REGULATION ARE NOT MORE RESTRICTIVE THAN THOSE
APPLICABLE UNDER THE PART B PROGRAM

   This Court has recognized that disability benefits are payable to a
miner under the Black Lung Benefits Act "if (a) he or she is totally
disabled, (b) the disability was caused, at least in part, by
pneumoconiosis, and (c) the disability arose out of coal mine
employment." Mullins Coal Co., 488 U.S. at 141;  see also Sebben, 484
U.S. at 108.  That recognition follows from the declaration of purpose
in Section 401(a) of the Act, which states that "Congress finds and
declares that there are a significant number of coal miners living
today who are totally disabled due to pneumoconiosis arising out of
employment in one or more of the Nation's coal mines," and that "(i)t
is, therefore, the purpose of this subchapter to provide benefits * *
* to coal miners who are totally disabled due to pneumoconiosis." 30
U.S.C. 901(a).

   In light of this purpose, it should be plain, despite the
complexity of the statute and its implementing regulations, that the
Fourth Circuit erred when it held that the question whether a claimant
has pneumoconiosis "is superfluous and has no bearing on the case."
90-114 Pet. App. 7 n.*.  Rather, if neither Dayton nor Taylor has
pneumoconiosis (called "black lung disease" when caused by exposure to
coal mine dust), neither is entitled to black lung benefits.
Similarly, since "pneumoconiosis is not a contributing fact in
(Pauley's) disability" (89-1714 Pet. App. 5), the Third Circuit was
correct in concluding that he was not entitled to benefits.

   A. None Of The Claimants Has Shown That He Would Have Obtained
Benefits Under The Part B Program

   Section 411(a) of the Act, the initial provision in Part B,
implements the Act's declaration of purpose by directing the Secretary
of Health, Education, and Welfare "to make payments of benefits in
respect of total disability of any miner due to pneumoconiosis." 30
U.S.C. 921(a).  Nowhere in Part B is HEW authorized to make payments
to any miner who does not have pneumoconiosis or whose disability is
not due, even in part, to pneumoconiosis.  Nevertheless, in arguing
that DOL's presumption regulation imposes more restrictive criteria
than those governing the Part B program, the claimants implicitly urge
that they would have obtained benefits under Part B.  More
specifically, they urge that they would have qualified for benefits
under HEW's presumption regulation.  Such a contention is necessary to
the claimants' case:  if they would not be entitled to benefits under
HEW's regulation, the standards established by DOL are not more
restrictive as applied to them than are HEW's standards under Part B.
/15/

   In Pauley's view, under HEW's presumption regulation a miner who
establishes that he has pneumoconiosis and that he worked in a coal
mine for at least ten years must be awarded benefits if he is totally
disabled, even if it is shown that the miner's disability is not
caused, in whole or in part, by pneumoconiosis.  Similarly, in the
view of Dayton and Taylor, under HEW's regulation a miner who invokes
the presumption and who is totally disabled must be awarded benefits
even if it is shown that he does not have pneumoconiosis.  As the
Third Circuit stated, "there is no case law indicating how the
rebuttal provisions of 20 C.F.R. Section 410.490 were applied by the
Department of Health, Education and Welfare" (89-1714 Pet. App. 17)
and, as this Court has recognized, HEW's regulation was "drafted in a
most confusing manner" (Sebben, 488 U.S. at 109).  Notwithstanding
these difficulties, we believe there is a sufficient basis to
determine that HEW would not have awarded benefits to claimants if it
concluded that the claimants did not have pneumoconiosis or were not
disabled by it.

   In our view, subsection (b)(2) of HEW's regulation includes the
conditions in DOL's third and fourth rebuttal methods.  Subsection
(b)(2) states that in order to invoke the presumption, the claimant
must show that "(t)he impairment established in accordance with
paragraph (b)(1) of this section arose out of coal mine employment."
That provision is comparable to DOL's third rebuttal method, since
subsection (b)(2) speaks of an impairment that "arose out of coal mine
employment" while DOL's third rebuttal provision authorizes the coal
mine operator to show that the miner's disability "did not arise in
whole or in part out of coal mine employment." /16/

   With respect to DOL's fourth rebuttal method, we believe that,
under subsection (b)(2) of its regulation, HEW would, and properly
should, have rejected a claim where the evidence showed that the miner
did not have pneumoconiosis.  Although "pneumoconiosis," when used as
a medical term, refers to a respiratory condition that may be caused
by exposure to a variety of substances -- including cotton fibers and
asbestos (see note 2, supra) -- Congress defined "pneumoconiosis" to
mean "a chronic dust disease * * * arising out of coal mine
employment." 30 U.S.C. 902(b).  Subsection (b)(2) of HEW's regulation
tracks the statutory definition of "pneumoconiosis" in requiring proof
of an impairment that "arose out of coal mine employment." /17/ Thus,
the most plausible reading of subsection (b)(2) is that a miner who
did not have pneumoconiosis could not invoke HEW's presumption.  /18/

   The statute provides with respect to the Part B program that if a
miner had ten years of coal mine experience, "there shall be a
rebuttable presumption that his pneumoconiosis arose out of such
employment." 30 U.S.C. 921(c)(1).  And that presumption is restated in
HEW's regulations.  See 20 C.F.R. 410.416, 410.456;  cf. 20 C.F.R.
410.490(b)(3).  But while the ten-year rule is a presumption that is
rebuttable, the claimants ask this Court to conclude that HEW
converted the presumption into one that is irrebuttable.  In our view,
the ten-year presumptions found elsewhere in the statute and HEW's
regulations serve to shift the burden of proof to the party contesting
entitlement with respect to the causation issues once the claimant
makes the requisite showing, but under subsection (b)(2) the operator
still has the opportunity to negate the presumption by proving that
the claimant did not have pneumoconiosis or that his disability was
not caused by the disease.  /19/

   HEW's presumption regulation, as we have readily acknowledged, is
not a model of clarity.  However, adoption of the claimants'
interpretation would compel the conclusion that HEW was violating the
law by paying federal funds to claimants who were not entitled to
benefits because they were not totally disabled due to pneumoconiosis
arising out of coal mine employment.  As the Third Circuit states, "it
seems perfectly evident that no set of regulations * * * may provide
that a claimant who is statutorily barred from recovery may
nevertheless recover." 89-1714 Pet. App. 13.  Because the Court
presumes that federal agencies "act properly and according to law"
(FCC v. Schreiber, 381 U.S. 279, 296 (1965)), it should not conclude
that HEW was paying benefits to claimants who did not qualify under
the Act.  The Court should determine instead that HEW would not have
awarded benefits to such claimants and that DOL's regulation is
therefore not more restrictive than HEW's regulation.

   B. Section 402(f)(2) Does Not Bar A Party Contesting Entitlement
From Showing That A Claimant Does Not Have Pneumoconiosis Or Is Not
Disabled By The Disease

   Even if HEW would have refused to consider evidence showing that a
claimant did not have pneumoconiosis or was not disabled by it,
Section 402 (f)(2) should not be construed to require DOL to follow
that course.  Section 402(f)(2) does not direct DOL to adopt HEW's
regulation as HEW applied it, but instead states that the "(c)riteria"
applied by DOL to claims filed before DOL promulgated final
regulations "shall not be more restrictive than the criteria
applicable to a claim filed on June 30, 1973." Thus, the question is
what criteria Congress understood to apply to Part B claims, not what
criteria HEW actually applied.  /20/ In our view, Congress must have
acted on the understanding that Part B claims were not allowed when
the evidence showed that the claimant did not have pneumoconiosis or
was not disabled by it.  /21/

   1. The Congress that enacted Section 402(f)(2) was aware of the
purposes of the Black Lung Benefits Act, and would surely have been
surprised to learn -- if it was true -- that black lung benefits were
being awarded under Part B to persons who were not disabled by black
lung disease.  No reasonable construction of Section 402(f)(2), and
nothing in its history or background, support the conclusion that
Congress intended to compel DOL to award benefits to such persons.

   First, the regulatory criteria that Congress specifically addressed
in enacting Section 402(f)(2) were the ventilatory test scores set out
in HEW's presumption regulation.  See note 8, supra.  Those scores
were incorporated, verbatim, by DOL.  20 C.F.R. 727.203(a)(2).

   Second, Congress would have understood that the statutory
presumptions set out in Part B of the Act were applied to Part B
claims.  One of those is the presumption -- expressly made rebuttable
-- that in the case of a miner with ten years of coal mine employment,
"his pneumoconiosis arose out of such employment." 30 U.S.C.
921(c)(1).  Pauley contends, however, that because he showed that he
had pneumoconiosis and that he worked in coal mines for more than ten
years, it is irrebuttably presumed that he is disabled from coal mine
work.  And Taylor and Dayton contend that because they presented
evidence of a respiratory disability and worked in coal mines for more
than ten years, it is irrebuttably presumed that they had
pneumoconiosis.  As noted, we doubt that HEW actually applied its
regulation in that manner.  But if it did, it was acting beyond its
statutory authority.  Nothing in the Act establishes such irrebuttable
presumptions.

   Third, another relevant statutory presumption, set out in Section
411(c)(4), provides that a miner presenting "evidence demonstrat(ing)
the existence of a totally disabling respiratory or pulmonary
impairment" is entitled to benefits unless it is shown that "(A) such
miner does not, or did not, have pneumoconiosis, or that (B) his
respiratory or pulmonary impairment did not arise out of, or in
connection with, employment in a coal mine." 30 U.S.C. 921 (c)(4).
This provision, it should be stressed, is contained in Part B of the
Act.  Congress surely may be taken to have understood that it applied
to the Part B program, even if HEW actually ignored it.  The two
rebuttal provisions set out in Section 411(c)(4) are almost exactly
the same as the DOL rebuttal methods that the claimants challenge.
Because similar provisions are not explicitly set out in the rebuttal
portion of HEW's regulation, the claimants contend that Congress
intended to bar DOL from authorizing rebuttal by those methods.  But
those rebuttal methods were spelled out in Part B of the Act itself.

   Finally, Section 402(f)(2) was enacted in 1978, two years after
this Court's decision in Usery v. Turner Elkhorn Mining Co., 428 U.S.
1 (1976).  In that case, the Court considered Section 411(c)(3) -- the
Part B provision setting out the irrebuttable presumption in favor of
claimants with complicated pneumoconiosis.  The Court noted that "the
premise of Section 411(c)(3), that the miner have a 'chronic disease
of the lung,' does not explicitly provide that the disease must be one
arising out of employment in a coal mine." 428 U.S. at 22 n.21.
However, the Court stated, it was clear under other provisions of the
Act that "an operator can be liable only for pneumoconiosis arising
out of employment in a coal mine." Ibid.  That common-sense gloss on
the statute should be applied in construing Section 402(f)(2) as well.
 And in view of this Court's interpretation of the irrebuttable
presumption two years before enactment of Section 402(f)(2), Congress
must have understood at the time of enactment that coal mine operators
could not be required to pay black lung benefits to claimants who were
not disabled by pneumoconiosis arising from coal mine employment.
Indeed, the Conference Committee expressed its intent that "all
standards are to incorporate the presumptions" set out in Section
411(c).  H.R. Conf. Rep. No. 864, 95th Cong., 2d Sess. 16 (1978).
/22/

   2. In Turner Elkhorn Mining, this Court also considered a
constitutional challenge by coal mine operators to the limitation on
rebuttal set out in Section 411(c)(4).  That limitation authorizes
rebuttal only by the methods that are challenged in this case.  The
lower court had "judged this limitation unconstitutional on the ground
that it deprived an operator of a factual defense -- that the miner is
not 'totally disabled' due to pneumoconiosis." 428 U.S. at 35.  The
Court found it unnecessary to consider the due process issue because
it held "as a matter of statutory construction that the Section
411(c)(4) limitation on rebuttal evidence is inapplicable to
operators." Ibid.

   As the lower court decision in Turner Elkhorn Mining shows, a
serious constitutional question would be presented if Section
402(f)(2) were construed to bar coal mine operators from proving that
claimants are not entitled to benefits because they do not have
pneumoconiosis or are not disabled by it.  A construction of Section
402(f)(2) that preserves DOL's third and fourth rebuttal methods is
therefore supported by the principle that, if at all possible, courts
will construe a statute to avoid such problems.  Public Citizen v.
United States Dep't of Justice, 109 S. Ct. 2558, 2572 (1989);  Edward
J. Debartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 575 (1988).  /23/

   Because the black lung statute adjusts "the burdens and benefits of
economic life," a party complaining of a due process violation must
prove "that the legislature has acted in an arbitrary and irrational
way." Turner Elkhorn Mining, 428 U.S. at 15.  This test applies to
laws having retrospective as well as prospective effect, but "the
justifications for the latter may not suffice for the former." Id. at
17.  Laws like this one, having retrospective effect, /24/ may be
upheld if they rationally "spread the costs of the employees'
disabilities to those who have profited from the fruits of their
labor." Id. at 18.  /25/ However, imposing retroactive liability on
employers for the benefit of employees "may be arbitrary and
irrational in the absence of any connection between the employer's
conduct and some detriment to the employee." Connolly v. PBGC, 475
U.S. 211, 229 (1986) (O'Connor, J., concurring) (citing, inter alia,
Railroad Retirement Bd. v. Alton R.R., 295 U.S. 330 (1935), in which
this Court invalidated a law requiring employers to give pensions to
former employees who had already been fully compensated).

   When a presumption is challenged under the Due Process Clause, its
validity depends "on the strength of the connection between the
particular basic and elemental facts involved and on the degree to
which the device curtails the factfinder's freedom to assess the
evidence independently." Mullins, 484 U.S. at 157-158 n.30 (citation
omitted).  Thus, in evaluating presumptions under the black lung
statute, there must be "some rational connection between the fact
proved and the ultimate fact presumed." Id. at 159 n.32 (citation
omitted).  /26/

   Under these standards, a substantial due process question would
arise if Section 402(f)(2) were construed to prohibit coal mine
operators from offering evidence to prove that a claimant is not
disabled by black lung disease.  A rule limiting rebuttal on the
ground that such evidence is "superfluous" (90-114 Pet. App. 7 n.*)
would raise a due process concern about retrospectively imposing
liability on coal mine operators where there is no connection between
the claimants' disability and his employment.  Thus, in the present
cases, where it has been decided that the claimants are not disabled
as a result of their coal mine employment, serious constitutional
questions would be presented if it were determined that Section
402(f)(2) requires the coal mine operators to pay black lung benefits.
 Those constitutional questions are avoided by our construction of
Section 402(f)(2).  /27/

   3. The Department of Labor's interpretation of the Black Lung
Benefits Act is entitled to deference.  See Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984).  In
light of the statute's purposes, DOL -- the agency charged with its
administration -- permissibly construed the statute to authorize
rebuttal by proof that the claimant does not have pneumoconiosis or is
not disabled by it.

   Indeed, heightened deference is appropriate in this case because
the statute at issue is technical and complex (see Mullins, 484 U.S.
at 138;  Aluminum Co. of America v. Central Lincoln Peoples' Utility
District, 467 U.S. 380, 390 (1984)), and because DOL's construction,
made contemporaneously with the statute's enactment, represents the
views of the individuals charged with "setting its machinery in
motion, of making the parts work efficiently and smoothly while they
are yet untried and new" (Udall v. Tallman, 380 U.S. 1, 16 (1965)
(citation omitted)).  The Department proposed its interim presumption
regulation, including the third and fourth rebuttal methods, less than
two months after Congress enacted Section 402(f)(2) (see 43 Fed. Reg.
17,765, 17,771 (1978)), as the method of applying the new provision.
/28/ That contemporaneous understanding provides additional support
for the common-sense conclusion that the Act does not preclude
rebuttal by evidence that a claimant does not have pneumoconiosis or
is not disabled by it.

                              CONCLUSION

   The judgment of the Third Circuit in No. 89-1714 should be
affirmed.  The judgments of the Fourth Circuit in Nos. 90-113 and
90-114 should be reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   CHRISTOPHER J. WRIGHT

      Assistant to the Solicitor General

   ROBERT P. DAVIS

      Solicitor of Labor

   ALLEN H. FELDMAN

      Associate Solicitor

   EDWARD D. SIEGER

      Attorney Department of Labor

   DECEMBER 1990

   /1/ Title IV of the Federal Coal Mine Health and Safety Act of
1969, Pub. L. No. 91-173, 83 Stat. 792, was amended by and became
known as the Black Lung Benefits Act in 1972.  See Pub. L. No. 92-303,
86 Stat. 150.  It subsequently was amended by the Black Lung Benefits
Revenue Act of 1977, Pub. L. No. 95-227, 92 Stat. 11, the Black Lung
Benefits Reform Act of 1977, Pub. L. No. 95-239, 92 Stat. 95, the
Black Lung Benefits Amendments of 1981, Pub. L. No. 97-119, 95 Stat.
1643, and the Black Lung Benefits Revenue Act of 1981, Pub. L. No.
97-119, 95 Stat. 1635.  See also the Consolidated Omnibus Budget
Reconciliation Act of 1985, Pub. L. No. 99-272, Section 13203(a) and
(d), 100 Stat. 312, 313, and the Omnibus Budget Reconciliation Act of
1987, Pub. L. No. 100-203, Section 10503, 101 Stat. 1330-446 (both
amending trust fund tax provisions).

   /2/ Pneumoconiosis is a lung disease caused by exposure to various
types of dust, such as coal mine dust, cotton fibers, or asbestos.
See Lopatto, The Federal Black Lung Program:  A 1983 Primer, 85 W. Va.
L. Rev. 677, 679 & n.13 (1983).  When caused by coal mine dust, it is
known as black lung disease.  The statute (30 U.S.C. 902(b)) and the
regulations (20 C.F.R. 410.401(b), 727.202, 718.201) include in the
definition of "pneumoconiosis" not only the description of the disease
but also a requirement that it be caused by coal mine employment.

   /3/ The Department of Health, Education, and Welfare is no longer
in existence.  Its principal functions are now divided between the
Department of Health and Human Services and the Department of
Education.  As indicated in text, however, administrative functions
under the Black Lung Benefits Act are now performed by the Department
of Labor.

   /4/ While simple pneumoconiosis is "seldom productive of
significant respiratory impairment," complicated pneumoconiosis
"usually produces significant pulmonary impairment and marked
respiratory disability." Usery v. Turner Elkhorn Mining Co., 428 U.S.
1, 7 (1976) (footnote omitted).  In Turner Elkhorn Mining, this Court
rejected the coal industry's constitutional challenge to the
irrebuttable presumption set out in Section 411(c)(3).  The Court
noted that "it was precisely this advanced and progressive stage of
the disease that Congress sought most certainly to compensate," and
held that it was not irrational for Congress to conclude that any
miner with the advanced stage of the disease should receive benefits.
428 U.S. at 23.

   /5/ The fifth and last presumption set out in Section 411(c)
provides that certain survivors of deceased persons who worked in coal
mines for at least 25 years were entitled to benefits unless it was
shown that the miners were not at least partially disabled from
pneumoconiosis at the time of their death.  30 U.S.C. 921(c)(5).
Congress repealed this presumption and the presumptions in Section
411(c)(2) and (c)(4) in 1981.  Black Lung Benefits Amendments of 1981,
Pub. L. No. 97-119, Section 202(b), 95 Stat. 1643.

   /6/ The regulations cross-referenced in subsection (b)(2) provide
that "it will be presumed, in the absence of persuasive evidence to
the contrary," that pneumoconiosis arose out of coal mine employment
in the case of a claimant who worked in coal mines for ten years or
more, while in cases involving miners with less experience, claimants
"must submit the evidence necessary to establish that the
pneumoconiosis" on which the claim is based "arose out of employment
in the nation's coal mines." 20 C.F.R. 410.416, 410.456.

   /7/ The regulation cross-referenced in HEW's rebuttal provisions
states that a miner "shall be considered totally disabled due to
pneumoconiosis" if the disease "prevents him from engaging in gainful
work in the immediate area of his residence requiring the skills and
abilities comparable to those of any work in a mine or mines in which
he previously engaged." 20 C.F.R. 410.412(a)(1).

   /8/ Most significantly, the ventilatory test score standards used
by DOL to determine whether miners were disabled were much more
stringent than those in HEW's presumption regulation.  See Black Lung
Amendments of 1973:  Hearings on H.R. 3476 Before the General Subcomm.
on Labor of the House Comm. on Education and Labor, 93d Cong., 1st &
2d Sess. 353 (statement of Bedford W. Bird), 398 (statements of John
Rosenberg and Nancy Snyder) (1974).

   /9/ About 2,000 to 3,500 claims subject to Section 402(f)(2) are
still pending.  The lifetime cost of a single black lung claim has
been estimated at between $118,316 and $185,656.  See Employment
Standards Admin., United States Dep't of Labor, Annual Report on
Administration of the Black Lung Benefits Act for Calendar Year 1979,
at 32 (1980).

   /10/ DOL's regulation also originally differed from HEW's in that
it provided that all claimants must have worked in coal mines for at
least ten years in order to invoke the presumption.  Under HEW's
regulation, a claimant presenting x-ray, biopsy, or autopsy evidence
of pneumoconiosis could invoke the presumption with less than ten
years of coal mine work.  This Court held in Sebben that in this
respect DOL's regulation was more restrictive than HEW's, and hence
invalid.

   /11/ The second of DOL's rebuttal provisions differs slightly from
HEW's in that it provides that a miner's ability to do his usual coal
mine work or work comparable to it is to be assessed "(i)n light of
all relevant evidence." 20 C.F.R. 727.203(b)(2).  HEW's regulation
provides that "(o)ther evidence, including physical performance tests"
where available and appropriate, may be used to rebut the presumption.
 20 C.F.R. 410.490(c)(2).

   /12/ Like HEW's presumption regulation, DOL's regulation provides
for additional adjudication under a set of permanent regulations for
claimants who do not establish eligibility under the applicable
presumption regulation.  20 C.F.R. 410.490(e), 727.203(d).  For Part C
claimants, these permanent regulations are either HEW's permanent
regulations or DOL's permanent regulations, depending on when the
claim was adjudicated.  See Sebben, 488 U.S. at 111.

   /13/ John Pauley died in December 1988, while the case was pending
before the Benefits Review Board.  On August 14, 1990, the Board
substituted his widow, petitioner Harriet Pauley, as the claimant in
this case.  See 89-1714 Fed. Resp. Supp. Br.  We believe that Mrs.
Pauley is the proper party in this case because her husband had been
found to be eligible for benefits when he died (89-1714 Pet. App.
23-41) and she became eligible for those benefits as his survivor
without having to refile or otherwise validate the claim.  See 30
U.S.C. 932(l);  Rosebud Coal Sales Co. v. Weigand, 831 F.2d 926,
927-928 (10th Cir. 1987);  20 C.F.R. 725.212.

   /14/ The Fourth Circuit later retreated from the suggestion that
HEW's regulation provided a method of rebuttal similar to Labor's
third method.  In an unpublished decision, the court concluded that
the suggestion was "dicta" and that HEW's regulation allowed only two
rebuttal methods.  Robinette v. Director, OWCP, No. 88-1144 (Apr. 27,
1990), slip op. 8 & n.9, petition for cert. pending, No. 90-172 (filed
July 25, 1990).

   /15/ Taylor most clearly fails to satisfy this threshold
requirement.  He invoked the presumption under DOL's regulation by
presenting blood gas studies showing that he suffered from a
respiratory impairment.  That method of invocation was not available
under HEW's regulation, and the ALJ concluded that Taylor's x-rays and
ventilatory study scores were not sufficient to invoke the presumption
under HEW's regulation.  90-113 Pet. App. 27a.  Since either x-ray
evidence or ventilatory study scores must be used to invoke HEW's
presumption, Taylor would not have qualified for benefits under the
presumption regulation governing the Part B program.  Thus, the result
under HEW's regulation would be the same as the result under DOL's
regulation -- Taylor does not qualify for benefits.  Although the
Fourth Circuit considered this fact irrelevant -- summarily rejecting
"any argument that the rebuttal provisions must be pegged to the
invocation provisions" (id. at 11a) -- we do not see how Taylor
plausibly can argue that DOL's regulation is more restrictive than
HEW's as applied to him.

   /16/ HEW issued a supplement to its Coal Miner's Benefits Manual in
1972, shortly after it promulgated its regulation, to guide claims
adjudicators.  (We have lodged a copy of the supplement with the Clerk
of the Court and are serving a copy of the supplement on the other
parties.) While the manual, like the regulation, is not crystal clear,
it shows that at least some miners were barred from invoking the
presumption if they could not show that they were disabled by coal
mine work.  Where a claimant presented x-ray evidence of
pneumoconiosis and had fewer than ten years of coal mine experience,
the manual made explicit that "the burden of proof rests on the
claimant to establish that his pneumoconiosis arose out of" coal mine
experience.  Section IB6(d).  In addition, a miner who presented
qualifying ventilatory test scores and had ten years of coal mine
experience "was presumed to be totally disabled due to pneumoconiosis
arising out of coal mine employment," the manual said, "if * * * there
is no evidence that rebuts such a finding." Ibid. (emphasis added).
Thus, the manual contemplated (somewhat paradoxically) that
"rebut(tal)" would be allowed in some circumstances before the
presumption was invoked.

   /17/ Subsection (b)(2) may naturally be read to do the work of both
DOL's third and fourth rebuttal methods because those methods overlap
to a considerable extent.  In most cases, proof that a miner does not
have pneumoconiosis will also establish that his disability does not
arise out of coal mine employment.  That is particularly clear since
the statutory definition of "pneumoconiosis" (and the regulatory
definition as well (see 20 C.F.R. 410.401(b)(1)) restricts the term to
lung diseases arising out of coal mine employment.

   /18/ As noted above, HEW's benefits manual (see note 16, supra)
stated that the presumption of entitlement to benefits could be
invoked in certain circumstances only if "there is no evidence that
rebuts" a finding that the claimant is totally disabled due to
pneumoconiosis.  Section IB6(d).  Evidence showing that a claimant
does not have pneumoconiosis necessarily shows that he is not disabled
by it.  In addition, the manual set out a third rebuttal provision
stating that a claimant was not entitled to benefits where "(b)iopsy
or autopsy findings clearly establish that no pneumoconiosis exists."
Section IB6(e)(3).  While that section of the manual assumes that the
presumption has been invoked, it shows, contrary to the arguments of
Taylor and Dayton, that in some circumstances HEW would deny benefits
to persons who did not have pneumoconiosis even though they somehow
had invoked the presumption.  Moreover, it shows that HEW did not
construe the rebuttal methods set out on the face of its regulation as
the only available methods of rebuttal.

   /19/ The Third Circuit concluded that HEW's regulation allowed for
proof on rebuttal that a miner did not have pneumoconiosis or was not
disabled as a result of coal mine employment.  89-1714 Pet. App. 17.
Some support for this alternative theory is furnished by the provision
in HEW's manual that the presumption of entitlement to benefits "may
be rebutted if:  * * * (3) Biopsy or autopsy findings clearly
establish that no pneumoconiosis exists." Section IB6(e).  See note
18, supra.

   /20/ The point may be illustrated by a hypothetical case involving
corruption.  If one criterion actually applied by HEW were that
benefits were awarded to any claimant who bribed a claims adjudicator,
it would certainly not be appropriate to conclude that Congress
intended to compel DOL to apply the same criterion.

   /21/ The Third Circuit noted that Section 402(f)(2) is part of the
definition of "total disability" and concluded that because the
rebuttal provisions at issue relate to causation matters, and not
directly to whether the claimant is totally disabled, the restriction
in Section 402(f)(2) is inapplicable.  89-1714 Pet. App. 17.  That
conclusion may be difficult to reconcile with this Court's decision in
Sebben.  In that case, the Court noted that the contention that
"'criteria' means total disability criteria * * * has considerable
merit." 488 U.S. at 114.  However, the Court went on to conclude that
"to increase the requirements for the presumption of causality is
necessarily to increase the requirements for the presumption of total
disability" because HEW's regulation provided that "if certain
evidence of the first two elements of entitlement (pneumoconiosis and
causation) was established, the third element (total disability) would
automatically be presumed." Ibid.

   /22/ Moreover, the Congress that enacted Section 402(f)(2) also
provided that DOL was to consider "all relevant evidence," including
"blood gas studies, x-ray examination, electrocardiogram, pulmonary
function studies, or physical performance tests, and any medical
history." 30 U.S.C. 923(b).  The Conference Committee made clear that
the provision applied to claims governed by Section 402(f)(2).  H.R.
Conf. Rep. No. 864, supra, at 16.  Yet the claimants' construction of
the provision leads to the result that relevant medical evidence is
not considered.  For example, the ALJ in Pauley's case considered
ventilatory tests, blood gas studies, physical examinations, and
evaluations by eight physicians (89-1714 Pet. App. 27-35) in
concluding that his disability was not caused, even in part, by coal
mining.  The claimants contend that the ALJ should not have considered
that evidence except, perhaps, insofar as it would support their
claims.

   /23/ Contrary to the Fourth Circuit (90-114 Pet. App. 6), the
Director plainly has "standing" to defend Labor's third and fourth
rebuttal methods by arguing that their invalidation would raise doubts
as to the constitutionality of Section 402(f)(2).  Our argument with
respect to the due process issue is presented in support of our
statutory construction argument.

   /24/ Many black lung claimants (like Taylor, see 90-113 Pet. App.
6a) left coal mine work before Section 402(f)(2) was enacted in 1978.

   /25/ See also PBGC v. R.A. Gray & Co., 467 U.S. 717, 733-734 (1984)
(upholding withdrawal liability provisions of Multiemployer Pension
Plan Amendments Act of 1980 as a rational means of requiring employers
to pay for employees' vested benefits).

   /26/ Cf. Mathews v. Lucas, 427 U.S. 495, 509 (1976) (upholding
conclusive presumption where relationship between presumed and proved
facts is objectively probable and there is a need to avoid the burden
and expense of case-by-case adjudication).

   /27/ In Sebben, the Secretary of Labor similarly contended that
constitutional questions would be presented by a holding that
invalidated the third and fourth rebuttal methods.  Opposing counsel
in Sebben avoided that argument by agreeing with the Secretary that
"the Act does authorize her to apply the additional rebuttal methods
of the DOL interim presumption." No. 87-1095 Resp. Br. 19 n.20;  see
488 U.S. at 119.

   /28/ The Department of Labor explained in promulgating the final
regulation that the rebuttal provisions satisfied Section 402(f)(2) by
implementing Congress's requirement that DOL consider "all relevant
evidence," and that in any case HEW did not consider its two express
rebuttal provisions to be exclusive.  43 Fed. Reg. 36,826 (1978).

   APPENDIX