NORFOLK AND WESTERN RAILWAY COMPANY, PETITIONER V. OLEN ROBERSON,
AND DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR

   No. 90-1271

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorai To The United States Court Of
Appeals For The Fourth Circuit

   Brief For The Federal Respondent In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-10a) is reported
at 918 F.2d 1144.  The decision of the Benefits Review Board (Pet.
App. 17a-28a) and the decision of the administrative law judge (App.,
infra, 1a-15a) are unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 16,
1990.  The petition for a writ of certiorari was filed on February 11,
1991.  The jurisdiction of the Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether a railroad worker who works in or around a coal mine or
coal preparation facility in employment that is integral to the
extraction or preparation of coal is a "miner" within the statutory
definition of that term in the Black Lung Benefits Act.

                               STATEMENT

   1. Petitioner Norfolk & Western Railway Company (N&W) employed
respondent Olen R. Roberson as a brakeman and conductor from 1947
until his retirement in 1979.  Between 1956 and 1973, Roberson worked
on rail cars used to haul raw coal from several coal extractionsites
to a preparation plant where the coal was cleaned, washed, graded, and
loaded for delivery.  His duties at those locations included coupling
and uncoupling hoses between the railroad cars, setting and releasing
brakes, and obtaining loading numbers from individual cars.  Although
he rode on the trains from the extraction sites to the preparation
plant, a distance as far as 36 miles, his duties required him to spend
a significant part of his workday at the extraction and preparation
sites, where he was exposed to large amounts of coal dust.  Pet. App.
3a-4a.

   Roberson filed an application for benefits under the Black Lung
Benefits Act, 30 U.S.C. 901 et seq., which provides benefits to coal
miners who are totally disabled due to pneumoconiosis arising out of
coal mine employment.  Following an evidentiary hearing, an
administrative law judge determined that Roberson had established
entitlement to benefits under the interim regulations, 20 C.F.R. Pt.
727, and ordered N&W, as the responsible operator, to pay those
benefits.  App., infra, 1a-15a.  Applying the three-pronged
"status/function/situs" test of coverage established by the Benefits
Review Board in Whisman v. Director, OWCP, 8 Black Lung Rep. 1-96,
1-97 (Ben. Rev. Bd. 1985), the ALJ determined that between 1956 and
1973, Roberson primarily worked with raw rather than processed coal
(status), that his work transporting coal from the extraction sites to
the preparation plant during that period was integral to the coal
production process (function), and that he spent a significant portion
of his time at the extraction and preparation sites (situs).  App.,
infra, 3a-7a.  The ALJ concluded that Roberson qualified as a "miner"
under the Act, id. at 6a, and that petitioner was the operator
responsible for the payment of black lung benefits, id. at 7a-9a.  The
ALJ reasoned that N&W maintained a continuing presence at the mine
sites and, by transporting raw coal to the preparation plant, it
provided services essential to the preparation of the coal within the
meaning of the regulatory definition of "operator," 20 C.F.R.
725.491(a).  App., infra, 9a.

   2. The Benefits Review Board affirmed the ALJ's order awarding
benefits.  Pet. App. 17a-28a.  Applying the legal standard set forth
in Whisman, the Board concluded that there was substantial evidence
supporting the ALJ's findings that Roberson transported raw coal as an
integral part of the coal production process and spent a significant
portion of his workday at the mine sites and preparation plant.  Id.
at 19a-22a.  The Board rejected N&W's "policy-based" considerations,
noting that neither the Act nor its implementing regulations
specifically exclude railroad workers from coverage and that no such
exclusion was intended.  Id. at 22a.  The Board also was unpersuaded
that the existence of other federal statutes pertaining to disabled
railroad workers limits the scope of coverage of the Black Lung
Benefits Act.  Id. at 22a-23a.  Finally, the Board held that N&W was
an "operator" in that it employed a "miner" and maintained a
"continuing presence" at the mine.  Id. at 23a-25a.  /1/

   3. The court of appeals affirmed in a "necessarily narrow" holding.
 Pet. App. 1a-10a.  Applying this Court's analysis in Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),
the court of appeals looked first to the statutory definition of a
"miner" set forth in Section 402(d) of the Black Lung Benefits Act, 30
U.S.C. 902(d).  The court concluded that a transportation worker who
works in or around a coal mine in the extraction or preparation of
coal comes within that definition under the plain language of Section
402(d).  Pet. App. 4a-5a.  /2/ The court then determined that Roberson
met this definitional test because he was involved in hauling raw coal
from coal mines to the coal preparation plant, such transportation was
part of the preparation process, and Roberson spent a significant
amount of time in or around "coal mines," which the Act defines to
include a coal preparation plant.  Id. at 5a-6a.  The court therefore
had "little difficulty in concluding that the plain language of the
Act, especially when reinforced by the 1978 amendment (adding a
reference to "transportation" workers), manifests a clear
Congressional intent to include in the definition of miner a small
group of transportation workers of which Roberson was a member." Id.
at 6a.

   The court rejected petitioner's various arguments that railroad
employees are fundamentally different from other transportation
workers.  Pet. App. 6a-9a.  First, the court observed that because the
"plain language" of the Act supports the Board's decision, it did not
need to resort to the legislative history.  Id. at 6a-7a.  It added
that, in any event, the legislative history is not to the contrary
since the Conference Committee report -- the "most persuasive evidence
of Congressional intent" -- "sticks closely to the literal language of
the statute" and does not exclude railroad workers from the Act's
coverage.  Id. at 7a n.3.  Second, the court rejected petitioner's
argument that coverage under the Black Lung Benefits Act would be
inconsistent with other federal legislation protecting railroad
employees.  Id. at 7a-8a.  The court noted that there was nothing to
indicate that Congress intended any of the statutes pertaining
specifically to railroad workers to preclude resort to the Black Lung
Benefits Act and that, in fact, the Federal Employers' Liability Act
(FELA), 45 U.S.C. 51, 58, specifically provides that it is not
exclusive of any other federal remedy.  Pet. App. 8a.

   The court of appeals found irrelevant petitioner's observation that
interstate railroads are regulated by the Interstate Commerce
Commission.  Pet. App. 8a.  The court held that the ALJ's undisputed
finding that Roberson spent a significant portion of his workday at
the mines and preparation plant defeated petitioner's implicit
argument that Roberson's role as a crew member during the 36-mile trip
from the mines to the preparation plants took him outside of the Act's
"situs" and "function" requirements.  Id. at 8a-9a.  After noting that
"(i)n the ordinary case" many railroad employees may not qualify for
benefits, the court stated:  "If a claimant fulfills all the statutory
requirements, however, as Roberson has here, we decline to hold that
his status as a railroad employee negates his recovery of benefits
under the Act to which he otherwise would be entitled." Id. at 10a.
/3/

                               ARGUMENT

   The judgment of the court of appeals is correct and does not
conflict with any decision of this Court or any other court of
appeals.  Although petitioner suggests otherwise, the court of
appeals' "necessarily narrow" (Pet. App. 10a) and fact-based holding
is unlikely to have a significant impact on the railroad industry.
Accordingly, further review is unwarranted.

   1. Petitioner primarily contends (Pet. 9-14) that the court of
appeals' determination that Roberson comes within the statutory
definition of "miner" is inconsistent with the purposes and
legislative history of the Act.  As the court below properly noted,
however, the starting point in statutory interpretation is the
language of the statute.  Pet. App. 5a.  See Hallstrom v. Tillamook
County, 110 S. Ct. 304, 308 (1989).  Section 402(d) of the Black Lung
Benefits Act, defines a "miner" as

      any individual who works or has worked in or around a coal mine
      or coal preparation facility in the extraction or preparation of
      coal.  Such term also includes an individual who works or has
      worked in coal mine construction or transportation in or around
      a coal mine, to the extent such individual was exposed to coal
      dust as a result of such employment.

30 U.S.C. 902(d) (emphasis added).  See 20 C.F.R. 725.101(a)(26).
Based on this language, the court of appeals properly concluded (Pet.
App. 5a), as has every other court of appeals to address the issue,
that the statute includes within its definition of "miner" any
transportation worker involved "in the extraction or preparation of
coal" who works "in or around a coal mine." /4/

   The court properly applied that "situs/function" test to the facts
of this case and concluded that Roberson's work during the relevant
period placed him within the statutory definition of "miner." It was
undisputed that Roberson hauled "raw coal from extraction sites
(mines) to the preparation plant, which also is considered a coal mine
under the Act." Pet. App. 5a-6a.  /5/ His work transporting coal to
the preparation plant was part of the preparation process (function);
and he spent a significant part of his time in or around a "coal mine"
(situs).  Id. at 6a.  Indeed, the facts here are virtually
"indistinguishable" (ibid.) from the Fourth Circuit's earlier decision
in Roberts v. Weinberger, 527 F.2d 600 (1975), in which the court held
that even before the 1977 amendment, the Act was "unambiguous in
extending coverage" to truck drivers who haul coal between a strip
mine and the tipple.

   2. Although the broad statutory language contains no express or
implicit exclusion for railroad workers, petitoner asserts (Pet. 7-14)
that inclusion of such workers is not consistent with the Act's
legislative history or purposes.  As this Court recently reiterated,
however, the best evidence of a statute's purpose "is the statutory
text adopted by both Houses of Congress and submitted to the
President." West Virginia University Hospitals, Inc. v. Casey, No.
89-994 (Mar. 19, 1991), slip op. 15.  "Where that contains a phrase
that is unambiguous -- that has a clearly accepted meaning in both
legislative and judicial practice -- we do not permit it to be
expanded or contracted by the statements of individual legislators or
committees during the course of the enactment process." Ibid.  In any
event, the purpose and legislative history of Section 402(d) support
the court of appeals' construction of the term "miner."

   In 1977, Congress expanded Section 402(d)'s definition of a "miner"
from "any individual who is or was employed in a coal mine" to include
"an individual who works or has worked in * * * transportation in or
around a coal mine." The Black Lung Benefits Reform Act of 1977, Pub.
L. No. 95-239, Section 2(b), 92 Stat. 95, codified at 30 U.S.C.
902(d).  The focus of that amendment was not upon exclusion, but upon
inclusion of additional workers within the Act's coverage.  While the
Senate Committee Report and the statement by Senator Randolph on which
petitioner relies (Pet. 11-13) speak restrictively of the contours of
the amended definition's coverage of transportation workers, the
Conference Report specifically clarifies

      that transportation and construction workers are covered only to
      the extent that they work in or around a coal mine and are
      exposed to coal dust.  The conference substitute elsewhere
      provides that coal mine construction and transportation
      employers who are not also mine operators shall not be obligated
      to purchase insurance * * * (but) shall be individually liable
      for the payment of approved claims in appropriate cases.

H.R. Conf. Rep. No. 864, 95th Cong., 2d Sess. 15-16 (1978).
Consistent with the language of the amended definition, the Conference
Report, which the court below properly recognized as the most
persuasive evidence of congressional intent, Pet. App. 7a n.3,
indicates that Congress intended the Act to cover transportation
workers who work in or around coal mines and are exposed to coal dust.
 See Louisville & N. R.R. v. Donovan, 713 F.2d 1243, 1248 (6th Cir.
1983), cert. denied, 466 U.S. 936 (1984);  cf. Otis Elevator Co. v.
Secretary of Labor, 921 F.2d 1285 (D.C. Cir. 1990) (Congress intended
to expand FMSHA's definition of "operator" in 1977 notwithstanding two
limiting "snippets" of legislative history).

   The court of appeals' determination is also supported by the Black
Lung Benefits Act's statutory purpose of providing benefits to workers
at coal mines when those workers are disabled by exposure to coal
dust.  Petitioners err in attaching significance (see Pet. 9-10) to
the fact that railroad workers are covered by other federal
legislation, since those statutes by their terms do not preclude the
availability of benefits under other programs, such as the black lung
benefits program.  See Louisville & N. R.R. v. Donovan, 713 F.2d at
1248 n.3.  /6/ Nor is there any provision in the Black Lung Benefits
Act that restricts coverage based on receipt of benefits under these
other programs.  Although petitioner argues (Pet. 10) that the
existence of other federal benefit programs for railroad workers
indicates that Congress could not have "intended to include railroad
workers under (the Black Lung Benefits Act) without even addressing
the potential for overlapping coverage, (or) duplicative benefits," it
is more reasonable to conclude that "had Congress intended to provide
an exception for independent railroad companies, it would have done
so." Pet. App. 25a.

   3. Petitioner also contends (Pet. 14-16) that certiorari is
warranted because the court of appeals' decision conflicts with the
vacated decision of the district court in Louisville & N. R.R. v.
Donovan, No. 80-0611-L(G) (W.D. Ky. 1981), rev'd, 713 F.2d 1243 (6th
Cir. 1983), cert. denied, 466 U.S. 936 (1984).  There is no merit in
this contention.  As a general matter, a conflict between a court of
appeals decision and a district court decision would not establish
"special and important reasons" for this Court to exercise its
discretionary jurisdiction, even if the lower court's decision had not
been reversed on appeal.  See Sup. Ct. R. 10.1.

   To be sure, the Sixth Circuit specifically based its reversal in
Louisville & N. R.R. on the district court's lack of jurisdiction to
review the Department of Labor's guidelines defining "the
transportation of coal" under the Black Lung Benefits Act, and it
disclaimed "the intent of making any definitive construction" of the
Act.  But the court also stressed Congress's explicit recognition
"that a person working in transportation in or around a coal mine
might be exposed to coal dust as a result of such employment and
should not be deprived of (Black Lung Benefits Act) benefits merely
because its employer is not an 'operator' in the traditional sense."
713 F.2d at 1249.  In addition, the court criticized the district
court's construction of the statute as excluding the railroad
industry, stating:

      The statute, however, far from clearly excluding railroads,
      expressly encompasses not only mine operators in the traditional
      sense but also "any independent contractor performing services
      or construction at (a) mine." 30 U.S.C. Section 802(d).  This
      expanded definition does not clearly exclude railroads,
      especially when viewed in conjunction with the amended
      definition of "miners" which includes "an individual who works
      or has worked in . . . transportation in or around a coal mine .
      . . ." 30 U.S.C. Section 902(d).

713 F.2d at 1247.  Thus, the court of appeals' decision in Louisville
& N. R.R. is consistent with the court's decision in this case.

   There is similarly no merit to petitioner's suggestion (Pet. 16-17)
that the court of appeals' decision in this case conflicts with the
Eleventh Circuit's decision in Fox v. Director, OWCP, 889 F.2d 1037
(1989).  The Fox case involved a worker at a coke oven -- not a
railroad or transportation worker.  The Eleventh Circuit found that
the coke oven worker was not a miner because "the washing and crushing
of coal performed (at the coke oven) were the first steps in the coke
manufacturing process rather than the last step in the coal extraction
and preparation process." Id. at 1042.  The court relied on the Senate
Report for the limited point that "coverage of coal preparation
activities is contingent on such activities being an integral part of
the coal production process" rather than merely "coal processing
activities (such as coke production) performed by the ultimate
consumer for his own use." Id. at 1040-1041.  The Eleventh Circuit's
analysis would not require a different outcome here since Roberson
hauled raw -- not processed -- coal, and the ALJ explicitly and
correctly found that Roberson's activities were an integral part of
the preparation process.  /7/

                              CONCLUSION

   The petition for writ of certiorari should be denied.

   Respecfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT P. DAVIS

      Solicitor of Labor

   STEVEN J. MANDEL

      Deputy Associate Solicitor

   ELIZABETH HOPKINS

      Attorney Department of Labor

   APRIL 1991

   /1/ The Board also upheld the ALJ's finding that Roberson met the
health-related requirements for benefits under the Act.  Pet. App.
25a-27a.  N&W did not challenge that finding in the court of appeals
and does not do so in this Court.

   /2/ The court concluded that the statutory language also requires,
in the case of a transporation worker, that the worker has been
"exposed to coal dust as a result of such employment," but noted that
N&W did not dispute Roberson's coal dust exposure (Pet. App. 5a).  See
also 20 C.F.R. 725.202(a) (providing a rebuttable presumption that a
transportation worker is exposed to dust when working in or around a
coal mine or coal preparation facility).

   /3/ The court also upheld the ALJ's finding tht N&W qualified as an
"operator" under the Act based on its continuing presence at the mines
and its provision of services essential to the preparation of coal.
Pet. App. 9a.  Petitioner does not challenge that determination in
this Court (Pet. 5 n.4).

   /4/ See, e.g., Hanna v. Director, OWCP, 860 F.2d 88 (3d Cir. 1988)
(tug boat operator who assisted with loading process at tipple
covered);  Stroh v. Director, OWCP, 810 F.2d 61, 63 (3d Cir. 1987)
(self-employed truck driver who hauled coal to processing plants
covered);  Southard v. Director, OWCP, 732 F.2d 66, 69 (6th Cir. 1984)
(applying identical analysis to question of whether transportation
worker is covered);  Mitchell v. Director, OWCP, 855 F.2d 485, 489
(7th Cir. 1988) (railroad employee who shoveled and cleaned out
railroad cars to ready them for loading at adjacent preparation plant
was covered "miner").

   /5/ The Federal Mine Safety and Health Act of 1977 (FMSHA), which
is applicable to the Black Lung Benefits Act (subchapter IV of the
FMSHA), provides:

         For the purposes of subchapters II, III, and IV of this
      chapter, "coal mine" means an area of land and all structures,
      facilities, machinery, tools, equipment, shafts, slopes,
      tunnels, excavations, and other property, real or personal,
      placed upon, under, or above the surface of such land by any
      person, used in, or to be used in, or resulting from, the work
      of extracting in such area bituminous coal, lignite, or
      anthracite from its natural deposits in the earth by any means
      or method, and the work of preparing the coal so extracted, and
      includes custom coal preparation facilities.

30 U.S.C. 802(h)(2) (emphasis added);  see also 20 C.F.R.
725.101(a)(22)-(25).  This extremely broad definition of the term
"coal mine" evidences congressional intent that all facilities at a
preparation plant be covered.  See Harmon Mining Corp. v. FMSHRC, 671
F.2d 794, 796-797 (4th Cir. 1981) (railroad tracks that were owned by
railroad but that adjoined preparation plant and were on mine property
constituted a facility at the preparation plant and were therefore
part of mine).

   /6/ Indeed, FELA -- upon which petitioner primarly relies (Pet.
9-10) -- specifically states that it does not limit rights or
liabilities under other federal programs.  45 U.S.C. 58.  Moreover, as
the court below recognized, Pet. App. 8a, liability under FELA
requires negligence, while liability under the Black Lung Benefits Act
does not.

   /7/ Petitioner asserts (Pet. 5-6) that the decision below will
expose railroads to "thousands" of claims for black lung benefits, but
can identify only 174 pending claims.  Even as to those, of course,
"(t)he demanding tests of function and situs must be met." Pet. App.
10a.

   APPENDIX