DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. FRED KYLE No. 87-1045 In the Supreme Court of the United States October Term, 1987 The Solicitor General, on behalf of the Director of the 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 Sixth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit PARTIES TO THE PROCEEDINGS In addition to the named parties, the National Council on Compensation Insurance intervened in the court of appeals. TABLE OF CONTENTS Question Presented Parties to the Proceedings Opinions below Jurisdiction Statutory provision involved Statement 1. Statutory and regulatory framework 2. Proceedings below Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-9a) is reported at 819 F.2d 139. The decisions of the Benefits Review Board (App., infra, 10a-14a) and the administrative law judge (App., infra, 15a-20a) are unreported. JURISDICTION The judgment of the court of appeals was entered on May 18, 1987. The rehearing petitions were denied on September 22, 1987 (App., infra, 21a). The jurisdication of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISION INVOVLED Section 402(f) of the Black Lung Benefits Act, 30 U.S.C. 902(f), provides, in pertinent part: (1) The term "total disability" has the meaning given it by regulations of the Secretary of Health and Human Services for claims under part B of this subchapter, and by regulations of the Secretary of Labor for claims under part C of this subchapter, subject to the relevant provisions of subsections (b) and (d) of section 923 of this title, except that -- * * * * * (2) Criteria applied by the Secretary of Labor in the case of -- (A) any claim which is subject to review by the Secretary of Health and Human Services, or subject to a determination by the Secretary of Labor, under section 945(a) of this title; (B) any claim which is subject to review by the Secretary of Labor under section 945(b) of this title; and (C) any claim filed on or before the effective date of regulations promulgated under this subsection by the Secretary of Labor; shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973, whether or not the final disposition of any such claim occurs after the date of such promulgation of regulations by the Secretary of Labor. QUESTION PRESENTED Whether the court of appeals erred in construing the requirement of Section 402(f)(2) of the Black Lung Benefits Act, 30 U.S.C. 902(f)(2), that the "criteria" applied to certain claims adjudicated by the Secretary of Labor "not be more restrictive" than criteria set forth in rules applied by the Secretary of Health, Education, and Welfare (HEW) to claims filed during an earlier period, and in thereby ruling that the Department of Labor must not only apply medical criteria no more restrictive than those applied by HEW, but must also apply the evidentiary rules and adjudicatory standards applied by HEW. STATEMENT 1. Statutory and regulatory framework. The Black Lung Benefits Act, 30 U.S.C. (& Supp. III) 901 et seq., provides benefits to coal miners (and eligible survivors) who suffer from pneumoconiosis /1/ that arose out of coal mine employment, causing total disability or death. 30 U.S.C. 901(a), 922(a), 932(c); Mullins Coal Co. v. Director, Office of Workers' Compensation Programs, No. 86-327 (Dec. 14, 1987), slip op. 5. Claimes for benefits are adjudicated under two programs, depending on the date the claim was filed. Claims filed before July 1, 1973, under "Pert B" of the Act, were considered by the Department of Health, Education, and Welfare (HEW), and benefits were paid by the federal government. 30 U.S.C. 922(a), 924. Claims filed after that date, and adjudicated under "Part C" of the Act, are considered by the Department of Labor. 30 U.S.C. (& Supp. III) 925, 932. Individual coal mine operators bear primary responsibility for paying Part C benefits (30 U.S.C. 932(b)), although in certain cases Part C benefits are paid from the Black Lung Disability Trust Fund, which is financed by the coal mining industry and administered by the Director of the Office of Worker's Compensation Programs. See 30 U.S.C. 932(j), 934; 26 U.S.C. 4121(a), 9501. a. A miner is totally disabled under the Act when he is unable to perform work comparable to that he did as a coal miner. 30 U.S.C. 902(f)(1)(A). Prior to the 1977 amendments, the Black Lung Benefits Act authorized HEW to establish the regulatory standards for determining when a coal miner's pneumoconiosis would be deemed to be totally disabling. See 30 U.S.C. (1976 ed.) 902(f). In 1972, HEW promulgated two sets of regulations. It promulgated permanent regulations that set certain medical standards for determining when a miner's respiratory impairment is considered totally disabling. Under HEW's permanent regulations, to establish total disability a miner had to show through ventilatory studies (also known as pulmonary function tests) that the volume of air his lungs could expel was less than certain values (20 C.F.R. 410.426(b)), or show an impairment of the blood's ability to carry oxygen or certain heart abnormalities (20 C.F.R. 410, 424 & Subpt. D App.) /2/ In 1972, HEW also promulgated a special, interim regulation applicable only to Part B claims, i.e., those filed by miners on or before June 30, 1973, or by survivors of miners who died before January 1, 1974. The interim regulation was HEW's response to congressional concern about an existing backlog of claims and the unavailability of medical testing facilities to evaluate disability due to pneumoconiosis. 20 C.F.R. 410.490(a). HEW's interim regulation provided an "interim presumption" of total disability for Part B claimants who showed a respiratory impairment, measured by ventilatory studies, that is substantially less severe than is required under HEW's permanent regulations. Compare 20 C.F.R. 410.490(b)(1)(ii) with 410.426(b). This rebuttable presumption was only available to miners who had worked at least ten years in coal mines. 20 C.F.R. 410.490(b)(1)(ii) and (b)(3)). /3/ HEW's interim regulation also provided a rebuttable presumption that a claimant was totally disabled if X-ray, biopsy, or autopsy evidence extablished the existence of pneumoconiosis and the impairment was caused by coal mine employment. 20 C.F.R. 410.490(b)(1)(i) and (b)(2). Causation could be proved under the regulation in two ways. First, if a miner worked for ten years in a coal mine his pneumoconiosis was presumed to arise from his coal mine employment. Second, in any other case the claimant "must submit the evidence necessary to establish that the pneumoconiosis arose out of employment in the Nation's coal mines." 20 C.F.R. 410.416, 410.456. /4/ As a result, a miner who worked for less than ten years in a coal mine could establish a presumption of total disability under HEW's interim regulation by showing the existence of pneumoconiosis by means of an X-ray and presenting evidence supporting the claim that coal mine work caused the pneumoconiosis. /5/ b. Congress amended the Act in 1977, giving the Secretary of Labor the authority to issue regulations defining "total disability" and to "establish criteria for appropriate medical tests * * * which accurately reflect total disability in coal miners * * * ." Black Lung Benefits Reform Act of 1977, Pub. L. No. 95-239, Section 2(c), 92 Stat. 96; 30 U.S.C. 902(f)(1)(D). Congress also directed the Secretary to reopen claims that had been denied prior to the effective date of the 1977 amendments. 30 U.S.C. 945. Congress provided in Section 402(f)(2) that, in adjudicating the total disability of those claimants, along with any other claimants who filed claims before the Secretary's final regulations were promulgated, /6/ the "(c)riteria applied by the Secretary of Labor * * * shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973," i.e., to a claim adjudicated under HEW's interim Part B regulations. 30 U.S.C. 902(f)(2). The Secretary promulgated an interim regulation in 1978 (20 C.F.R. 727.203) that provides a presumption of total disability that is similar but not identical to HEW's interim regulation. The Secretary's interim regulation is more generous to claimants in certain ways. Specifically, unlike HEW's interim regulation, the Secretary's interim regulation provides that, in addition to X-rays and ventilatory studies satisfying medical criteria identical to those found in HEW's interim regulation, the presumption of total disability could be established by blood-gas studies, other medical evidence including a physician's opinion, and, 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). At the same time, however, the Secretary's interim regulation allowed the presumption of total disability based on X-ray, biopsy, or autopsy evidence of pneumoconiosis to be established only if a claimant worked in coal mines for at least ten years. 20 C.F.R. 727.203(a)(1). Thus, a claimant could not, as under HEW's interim regulation, gain the benefit of the presumption of total disability if he worked in coal mines for less than ten years by relying on other evidence to show causation. In that event, he could not trigger the presumption at all. /7/ 2. Proceedings below. The claimant, Fred Kyle, worked in coal mines for eight and a half years between 1937 and 1951 (App., infra, 2a). He applied for black lung benefits in 1980 (ibid.); his claim was filed before the effective date of the Department of Labor's permanent regulations, so the statutory prohibition against the application of more restrictive "criteria" applied. 20 C.F.R. 718.1(b). Because the claimant had less than ten years of coal mine employment, he did not qualify for the presumption of total disability under the Secretary's interim regulation, although he produced an X-ray showing simple pneumoconiosis (App., infra, 4a). Relying in part on the claimant's post-1951 work and smoking histories, the ALJ denied benefits because the claimant had not proved that he is totally disabled from pneumoconiosis or a chronic lung disease arising out of his coal mine employment (id. at 19a). The Benefits Review Board affirmed (id. at 10a-14a). A divided court of appeals reversed (App., infra, 1a-9a). The court held that the prohibition in Section 402(f)(2) against the application of more restrictive criteria required consideration of the claim under HEW's interim regulation (App., infra, 9a). The court recognized (id. at 5a) that "(m)anifestly, the term 'criteria' is subject to numerous possible interpretations," but, relying on Halon v. Director, Office of Workers' Compensation Programs, 713 F.2d 21 (3d Cir. 1983), and Coughlan v. Director, Office of Workers' Compensation Programs, 757 F.2d 966 (8th Cir. 1985), refused to defer to the Department of Labor's interpretation of the term to mean "medical criteria." Judge Guy dissented. He agreed with the Director that the statutory restriction refers only to medical criteria and adopted the reasoning of Judge Weis's dissent in Halon, finding it "a thorough analysis of the purpose and legislative history of the statutory language in question (that is) more persuasive than that of the majority here" (App., infra, 9a). REASONS FOR GRANTING THE PETITION The question presented in this case is identical to the question presented in Broyles v. Director, Office of Workers' Compensation Programs, 824 F.2d 327 (4th Cir. 1987). In Broyles, as in this case, the court of appeals held that Section 402(f)(2) requires application of HEW's interim presumption when a claimant with less that ten years' coal mine experience establishes that he suffers from pneumoconiosis by X-ray evidence and also shows that the disease arose out of coal mine employment. /8/ The decisions of these courts, and of the Third Circuit in Halon and the Eighth Circuit in Coughlan, conflict with the Seventh Circuit's decision in Strike v. Director, Office of Workers' Compensation Programs, 817 F.2d 395 (1987). In addition, as discussed in our petition for a writ of certiorari (at 10-12) in Whitfield v. Sebben, No. 87-827, the conclusion that the Secretary's regulation is inconsistent with the statute may require the reopening of as many as 94,000 claims. /9/ Because of the conflict in the courts of appeals and the severe practical problems resulting from the decisions holding the Secretary's interim regulation inconsistent with the statute, review of the issue by this Court is warranted. The reasons why we believe the Seventh Circuit correctly concluded in Strike that the regulation is consistent with the statute and the other courts of appeals have erred will be set forth in more detail in our petition in Broyles. We suggest that the Court hold this petition and dispose of it in light of the Court's disposition of Broyles. /10/ CONCLUSION The petition for a writ of certiorari should be held and disposed of as approprate in light of Director, Office of Workers' Compensation Programs v. Broyles. Respectfully submitted. GEORGE R. SALEM Solicitor of Labor ALLEN H. FELDMAN Associate Solicitor CAROL A. DE DEO Deputy Associate Solicitor EDWARD D. SIEGER Attorney Department of Labor CHARLES FRIED Solicitor General DONALD B. AYER Deputy Solicitor General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General DECEMBER 1987 /1/ Pneumoconiosis is a lung disease caused by exposure to various types of dust, such as coal dust and asbestos. Lopatto, The Federal Black Lung Program: A 1983 Primer, 85 W. Va. L. Rev. 677, 679 & n.13 (1983). When caused by coal dust, it is known as black lung disease. The statute (30 U.S.C. 902(b)) and the regulations (20 C.F.R. 727.202) 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. For clarity, we will use "pneumoconiosis" to refer solely to the disease, treating the question of causation as distinct. /2/ HEW's permanent regulations also incorporated the Act's requirement that a claimant would be considered totally disabled if he could no longer perform the type of work he did as a coal miner (20 C.F.R. 410.412, 410.426(a), (c) and (d)), as well as a statutory irrebuttable presumption of total disability (30 U.S.C. 921(c)(3)) where X-ray evidence showed severe damage to the lung (20 C.F.R. 410.418). /3/ HEW's interim regulation is unclear, in one part requiring 15 years of coal mine employment (20 C.F.R. 410.490(b)(1)(ii)), but later apparently requiring only ten years of coal mine employment (20 C.F.R. 410.490(b)(3)), to establish the interim presumption of total disability based on ventilatory studies. Courts have not resolved the ambiguity. /4/ While the regulation did not specifically address how a miner with less then ten years of work in coal mines could prove that his pneumoconiosis arose from coal mine employment, a claimant may establish causation by proving that he worked in coal mines and by showing that his pneumoconiosis was unlikely to have been caused by exposure to other sorts of lung irritants. /5/ HEW's interim presumption of total disability -- whether invoked through X-ray, autopsy, or biopsy evidence, or through ventilatory studies -- could be rebutted by "evidence that the individual is, in fact, doing his usual coal mine work or comparable and gainful work" or by other evidence, "including physical performance tests * * * establish(ing) that the individual is able to do his usual coal mine work or comparable and gainful work." 20 C.F.R. 410.490(c). /6/ Final regulations (20 C.F.R. Pt. 718) were proposed in 1978 and became effective on April 1, 1980. /7/ The Secretary's interim regulation authorized the same two methods of rebutting the presumption of total disability as did HEW's interim regulation, i.e., evidence showing that a miner is performing or could perform his usual coal mine work or comparable and gainful work. 20 C.F.R. 727.203(b)(1) and (2). The Secretary's interim regulation also expressly provided, however, that the presumption would be rebutted if the evidence established that the claimant's total disability did not arise from coal mine employment or that the miner did not have pneumoconiosis. 20 C.F.R. 727.203(b)(3) and (4). /8/ It is not clear from the decision below whether the Sixth Circuit's reasoning is likely to lead to the conclusion that the Secretary's interim regulation is contrary to Section 402(f)(2) on the additional ground that it authorizes methods of rebuttal in addition to those listed in HEW's interim regulation. The court stated that "under certain limited circumstances, the specific evidence neccessary to rebut those presumptions may be altered over time" (App., infra, 8a), suggesting that the regulation is not inconsistent with the statute insofar as it authorizes additional rebuttal methods. See also Prater v. Hite Preparation Co., 829 f.2d 1363, 1366 n.2 (6th Cir. 1987)(emphasis in original)("Part B cases are not applicable to Part C claims with respect to rebuttal of the interim presumption * * * ."); Ramey v. Kentland Elkhorn Coal Corp., 755 F.2d 485, 490 (6th Cir. 1985). The question whether the Secretary's interim regulation is inconsistent with the statute because it authorizes additional rebuttal methods, is pending in the Eighth Circuit in Smith v. Consolidation Coal Co., No. 86-2397 (8th Cir. argued Oct. 16, 1987). /9/ We are serving a copy of our petition in Sebben on the other parties in this case. /10/ We will serve a copy of our petition in Broyles, which is due December 29, 1987, on the other parties in this case as soon as it is printed. APPENDIX