JAKE CASTLE, PETITIONER V. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, AND WHITE ASH MINING CO. No. 90-7131 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The Federal Respondent OPINIONS BELOW The opinion of the court of appeals (Pet. App. 12-20) is unreported, but is noted at 917 F.2d 1304 (Table). The decision and order of the Benefits Review Board (Pet. App. 20-24) and the decision and order of the administrative law judge (ALJ) (Pet. App. 25-36) are also unreported. JURISDICTION The judgment of the court of appeals was entered on November 7, 1990. The petition for a writ of certiorari was filed on February 5, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether persons who are not disabled by black lung disease are entitled to benefits under the Black Lung Benefits Act. 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, which is commonly known as black lung disease. Disability claims filed by June 30, 1973, were considered by the Department of Health, Education, and Welfare (HEW) under regulations that included an "interim 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 (DOL). Claims filed with DOL 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 filed on June 30, 1973." See Pittston Coal Group v. Sebben, 488 U.S. 105, 110-111 (1988). In response to Section 402(f)(2), DOL promulgated its own interim presumption regulation, 20 C.F.R. 727.203. While a miner presenting specified medical evidence could invoke HEW's presumption of entitlement to benefits if his impairment arose from coal mine employment (20 C.F.R. 410.490(b)(1), (2)), a miner with ten years of coal mining who presented the same medical evidence (or three other types of evidence) could invoke Labor's presumption without any inquiry into causation. See 20 C.F.R. 727.203(a)(1)-(5). /1/ Once the presumption had been invoked, HEW's regulation specified that it could be rebutted (1) by proof that the miner was doing his usual coal mine work or comparable and gainful work, or (2) by proof that the miner was capable of doing such work. 20 C.F.R. 410.490(c)(1), (2). In contrast, DOL'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), (2). The third and fourth DOL rebuttal methods allow a party contesting entitlement to defeat a claim either (3) by proving that the total disability or death of a 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), (4). 2. In 1975, petitioner applied for black lung disability benefits. Pet. App. 12, 26. After a deputy commissioner in DOL's Office of Workers' Compensation Programs denied his claim, petitioner obtained a hearing before an ALJ. The ALJ found that petitioner could invoke DOL's presumption of eligibility based on his 19 years of coal mining and x-ray evidence showing pneumoconiosis. Id. at 27, 31-32. The ALJ denied benefits, however, because although the claimant was disabled, the more credible medical evidence established that his disability arose from cigarette smoking and not from coal mining. Id. at 32-33. That evidence, the ALJ concluded, satisfied DOL's third rebuttal method. The ALJ further concluded that the medical evidence would have defeated a claim under HEW's presumption, since it would have been "fundamentally unfair" for HEW to have ignored evidence "establishing that there is no significant relationship between the miner's disability and his occupational exposure to coal dust." Id. at 34. /2/ The Benefits Review Board affirmed on the ground that substantial evidence supported the ALJ's denial of benefits under DOL's third rebuttal method. Pet. App. 20-22. In the Board's view, the ALJ properly credited the opinions of two doctors with superior medical qualifications who diagnosed cigarette smoking as the cause of claimant's disability. Id. at 21. Relying on Youghiogheny & Ohio Coal Co. v. Milliken, 866 F.2d 195 (6th Cir. 1989), which had been decided after the ALJ's decision and had upheld DOL's third rebuttal method, the Board found it unnecessary to determine whether benefits would have been awarded under HEW's presumption regulation. /3/ 3. The court of appeals affirmed. Pet. App. 12-19. It agreed with the Board that the ALJ correctly found DOL's third rebuttal method satisfied by the medical opinions attributing petitioner's disability to cigarette smoking rather than coal mine employment. Id. at 17. The court also reiterated its holding in Milliken that DOL's rebuttal methods did not apply more restrictive criteria than HEW's to claimants like petitioner. Id. at 18. The validation of these methods was not inconsistent with this Court's decision in Sebben, the court stated, noting that the Court in Sebben had expressly declined to consider their validity. Id. at 18-19. ARGUMENT The question presented in this case -- the validity of DOL's third rebuttal method -- is the same as one of the questions now before this Court in Pauley v. Bethenergy Mines, Inc., No. 89-1714, and consolidated cases (argued Feb. 20, 1991). /4/ Here, as in Pauley, a claimant argues that a disabled miner with a mild form of pneumoconiosis is entitled to disability benefits under Section 402(f)(2) of the Black Lung Benefits Act even though a coal mine operator has proven that the miner's disability did not arise in whole or in part from pneumoconiosis. The court below, like the Third Circuit in Pauley, rejected petitioner's argument and upheld the validity of Labor's third rebuttal method. See also Patrich v. Old Ben Coal Co., No. 88-3427 (7th Cir. Mar. 8, 1991). Because this Court's decision in Pauley is therefore likely to resolve the question presented here, this petition should be held for the decision in that case. /5/ CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the disposition of Pauley v. Bethenergy Mines, Inc., No. 89-1714, and consolidated cases. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT P. DAVIS Solicitor of Labor ALLEN H. FELDMAN Associate Solicitor STEVEN J. MANDEL Deputy Associate Solicitor EDWARD D. SIEGER Attorney Department of Labor APRIL 1991 /1/ The medical evidence that was sufficient to invoke either HEW's or DOL's presumption included (1) x-ray, biopsy, or autopsy evidence of pneumoconiosis and (2) specified ventilatory test scores. 20 C.F.R. 410.490(b), 727.203(a)(1), (2). A claimant could also invoke DOL's presumption, but not HEW's, on the basis of certain blood gas test results and other evidence establishing a totally disabling respiratory or pulmonary impairment. Id. Sections 410.490(b), 727.203(a)(3)-(5). In Sebben, this Court held that DOL's regulation was more restrictive than HEW's regulation and hence invalid under Section 402(f)(2) insofar as it provided that all claimants must have worked in coal mines for at least ten years in order to invoke the presumption. /2/ Because the ALJ denied the claim, he found it unnecessary to decide whether respondent White Ash Mining Co. could transfer liability to the Black Lung Disability Trust Fund, which is administered by the Director, Office of Workers' Compensation Programs. Pet. App. 27 & n.5. /3/ The Board also concluded (Pet. App. 22) that petitioner did not qualify for benefits under DOL's permanent regulations, 20 C.F.R. Part 718. That aspect of the Board's decision is no longer at issue. /4/ Clinchfield Coal Co. v. Director, OWCP, No. 90-113, and Consolidation Coal Co. v. Director, OWCP, No. 90-114, are consolidated with Pauley. Those three cases also present the validity of DOL's fourth rebuttal method (proof that a claimant does not have pneumoconiosis) and whether the statute is constitutional under the Due Process Clause if it is construed to preclude the consideration of evidence showing that a claimant is not totally disabled due to pneumoconiosis. /5/ We are serving copies of our briefs in Pauley on counsel for the other parties in this case.