DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. JACK ROBINETTE No. 90-172 In The Supreme Court Of The United States October Term, 1990 The Solicitor General, On Behalf Of The Director, Office Of Workers' Compensation Programs, United States Department Of Labor, Petitions For A Writ Of Certiorari To Review The Judgment Of The United States Court Of Appeals For The Fourth Circuit In This Case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit TABLE OF CONTENTS Questions presented Opinions below Jurisdiction Constitutional, statutory and regulatory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-7a) is unpublished, but the decision is noted at 902 F.2d 1566 (Table). The decision and order of the Benefits Review Board (App., infra, 8a-12a), the Board's order on reconsideration (App., infra, 13a-15a), and the decision and order of the administrative law judge (ALJ) (App., infra, 16a-24a) are also unreported. JURISDICTION The judgment of the court of appeals was entered on April 27, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED The Fifth Amendment to the United States Constitution; Section 402(f) of the Black Lung Benefits Act, 30 U.S.C. 902(f); 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, 25a-32a. QUESTIONS PRESENTED 1. Whether the rebuttal provisions of a Department of Labor regulation satisfy Section 402(f)(2) of the Black Lung Benefits Act, which requires the Department to apply "(c)riteria * * * not more restrictive" than the criteria applied during an earlier phase of the black lung program. 2. Whether the statute, if construed to invalidate the Department's rebuttal provisions, violates the constitutional guarantee of due process. STATEMENT 1. The Black Lung Benefits Act, 30 U.S.C. 901 et seq., provides benefits to former coal miners and their survivors for total disability or death due to pneumoconiosis. Disability claims filed by June 30, 1973, were considered by the Department of Health, Education, and Welfare (HEW) under regulations that included a presumption of entitlement to benefits (20 C.F.R. 410.490) that was available to certain claimants. Claims filed after that date are considered by the Department of Labor. Claims filed with the Department of Labor before April 1, 1980, are subject to Section 402(f)(2) of the statute, 30 U.S.C. 902(f)(2), which provides that the "(c)riteria" applied to those claims "shall not be more restrictive than the criteria applicable to a claim" adjudicated by HEW. See Pittston Coal Group v. Sebben, 109 S. Ct. 414, 417-419 (1988). In response to Section 402(f)(2), Labor promulgated its own presumption regulation, 20 C.F.R. 727.203. While there were only two ways to invoke HEW's presumption (see 20 C.F.R. 410.490(b)(1)), there are five ways to invoke Labor's presumption. See 20 C.F.R. 727.203(a)(1)-(5). Once the presumption had been invoked, HEW's regulation specified that the presumption could be rebutted (1) by proving that the miner was doing his usual coal mine work or comparable work or (2) by proving that the miner was capable of doing such work. 20 C.F.R. 410.490(c)(1) and (2). In contrast, Labor's regulation specifies four rebuttal methods. The first two generally correspond to the two specified HEW methods. 20 C.F.R. 727.203(b)(1) and (2). The third and fourth Labor methods allow a party contesting entitlement to defeat a claim either (3) by proving that the disability or death of the miner did not arise in whole or in part from coal mine employment or (4) by proving that the miner does not or did not have pneumoconiosis. 20 C.F.R. 727.203(b)(3) and (4). 2. In 1973, Jack Robinette applied to HEW for black lung benefits. After HEW denied his claim, he elected and received review of the claim in light of the 1978 amendments to the Black Lung Benefits Act. /1/ HEW again denied his claim, but referred it to the Department of Labor for further review. App., infra, 2a. This claim, which is properly treated as if it had been filed with the Department of Labor, 30 U.S.C. 945(a)(3)(A), is subject to the prohibition in Section 402(f)(2) against the application of criteria that are more restrictive than those that HEW applied. The Department of Labor denied benefits. The ALJ found it undisputed that the claimant had presented x-ray evidence showing pneumoconiosis arising from his work as a miner, and therefore concluded that he had invoked the presumption of eligibility. App., infra, 17a-19a. The ALJ also found, however, that the medical evidence established that the claimant's pneumoconiosis was not totally disabling. Id. at 21a. In the ALJ's view, that evidence satisfied Labor's second rebuttal method (proof that the claimant was able to do his usual coal mine work) but not its third method (proof that the miner's disability did not arise in whole or in part from his work as a miner). Id. at 21a-23a. The Benefits Review Board held that the ALJ had erred in finding rebuttal under Labor's second method. App., infra, 10a. Under controlling court of appeals decisions issued after the ALJ's decision, the second rebuttal method is unavailable where the miner's pulmonary or respiratory condition is not disabling, but the miner has a non-respiratory disability. Ibid. The Board nevertheless found the evidence sufficient to rebut the presumption under Labor's third method, and concluded that the ALJ's error in relying on the second rather than the third method was "harmless." Id. at 11a. 3. The court of appeals reversed the denial of benefits. App., infra, 1a-7a. Relying on its previous decisions in Taylor v. Clinchfield Coal Co., 895 F.2d 178 (4th Cir. 1990), petition for cert. pending, No. 90-113 (filed July 17, 1990), and Dayton v. Consolidation Coal Co., 895 F.2d 173 (4th Cir. 1990), petition for cert. pending, No. 90-114 (filed July 17, 1990), the court held that Labor's third and fourth rebuttal methods violated Section 402(f)(2)'s prohibition against the use of more restrictive criteria. App., infra, 6a. In the court's view, rebuttal may be accomplished only by proof that a miner was working or was able to work (Labor's first and second methods) and not by proof that a miner's disability did not arise in whole or in part from coal mining (Labor's third method) or by proof that the miner did not have pneumoconiosis (Labor's fourth method). Ibid. Because the evidence did not show that the claimant was working or was able to work, the court concluded that rebuttal was unavailable under HEW's regulation and that benefits should be awarded. Id. at 7a. REASONS FOR GRANTING THE PETITION The questions presented in this case are identical to the questions presented in Pauley v. Bethenergy Mines, Inc., No. 89-1714, Clinchfield Coal Co. v. Director, No. 90-113, and Consolidation Coal Co. v. Director, No. 90-114, which also involve the validity of the rebuttal provisions in the Department of Labor's presumption regulation. As discussed in more detail in our brief in Pauley, /2/ review of the questions presented is warranted because the courts of appeals are divided on the validity of the rebuttal provisions. The Third and Sixth Circuits have upheld the provisions. See Bethenergy Mines, Inc. v. Director, OWCP, 890 F.2d 1295 (3d Cir. 1989), petition for cert. pending sub nom. Pauley v. Bethenergy Mines Inc., No. 89-1714 (filed May 7, 1990); Youghiogheny & Ohio Coal Co. v. Milliken, 866 F.2d 195 (6th Cir. 1989). The court below and the Seventh Circuit have invalidated parts of the regulation. See App., infra, 6a; Taylor v. Peabody Coal Co., 892 F.2d 503 (7th Cir. 1989), petition for cert. pending, No. 89-1696 (filed May 2, 1990). Accord Taylor v. Clinchfield Coal Co., 895 F.2d at 182-183; Dayton v. Consolidation Coal Co., supra. The courts of appeals have acknowledged the conflict. See Peabody Coal, 892 F.2d at 506; Pauley, 890 F.2d at 1302-1303. Indeed, the court below stated: "We recognize this conflict among the circuits and hope either that Congress will act to clarify these confusing regulations or that the Supreme Court will definitively resolve this conflict." App., infra, 6a n.8. The conflict can be expected to have a significant, detrimental impact on the administration of the black lung program because an estimated 2,000 to 3,500 claims governed by Section 402(f)(2), each valued at between $118,315 and $185,656, are still in litigation, and we believe that a high percentage of them are affected by the conflict. See Fed. Resp. Br. at 8-9 in Pauley v. Bethenergy Mines, Inc., No. 89-1714. However, we do not think that this is an appropriate vehicle for plenary review, and we recommend instead that the Court hold this petition and then dispose of it in light of its disposition of the other pending cases. That course is preferable because no coal mine operator is involved in this case. Since the coal companies will be required to pay benefits in many additional cases if Labor's third and fourth rebuttal methods are held to be invalid, we believe that the validity of those methods ought to be resolved in a case in which a coal company is a party. In addition, the unpublished, per curiam decision in this case does not analyze the questions presented in a way that would assist the Court in resolving them. CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the disposition of the petition in No. 89-1714, Pauley v. Bethenergy Mines Corp., or No. 90-114, Consolidation Coal Co. v. Dayton. /3/ 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 JULY 1990 /1/ The procedures by which claimants could elect review of claims that had been denied before the effective date of the 1978 amendments are set forth in 30 U.S.C. 945. /2/ We are serving a copy of our brief in Pauley on counsel for respondent, the only other party in this case. /3/ In our responses to the certiorari petitions in these two cases, we set forth more fully our reasons for believing that, of the cases in which certiorari petitions have been filed, they are the strongest candidates for plenary consideration. APPENDIX