Transcript

IN THE SUPREME COURT OF THE UNITED STATES

MULLINS COAL COMPANY, INC., OF VIRGINIA, ET AL., Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAM, UNITED STATES DEPARTMENT OF LABOR, ET AL.

No. 86-327

October 14, 1987

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:50 o'clock a.m.

APPEARANCES:

MARK E. SOLOMONS, ESQ., Washington, D.C.; on behalf of the petitioners.

MICHAEL K. KELLOGG, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the federal respondent in support of the petitioners.

C. RANDALL LOWE, ESQ., Abingdon, Virginia; on behalf of the respondents.

PROCEEDINGS

11:50 a.m.

CHIEF JUSTICE REHNQUIST: Mr. Solomons, you may proceed whenever you are ready.

ORAL ARGUMENT BY MARK E. SOLOMONS, ESQ. ON BEHALF OF THE PETITIONERS

MR. SOLOMONS: Mr. Chief Justice, and may it please the Court, the Black Lung Benefits Act is a federally based workers compensation program which provides benefits on account of total disability or death of a coalminer due to black lung disease. Hundreds of thousands of claimants have been awarded billions of dollars in benefits in this program by proving their entitlement to these benefits under a regulation which is called the interim presumption.

Since its inception 15 years ago, the two agencies which promulgated and have administered this presumption, the Social Security Administration, and after them the Department of Labor, have required proof of an indication of fact by a preponderance of the relevant evidence.

The Fourth Circuit in its divided opinion below strikes down the preponderance rule for invocation of this presumption and replaces it with a new rule which requires invocation on virtually any evidence at all in isolation from the record and whether or not that evidence is reliable and accurate.

The Fourth Circuit's rule is, we think, unprecedented in the context presented. It effectively strips claim defendants of the right to answer critical evidence where it is most significant in the analysis of the case. We think it stands for the proposition that one party's proof in an important point in the case is simply better than another'...

The question that is presented here for this Court is whether in the invocation of this presumption the claimant must establish invocation by a preponderance of the evidence. We think that he must, and we think so for two reasons. First, because the Secretary of Labor has consistently and over a long period of time required claimants through the Secretary's interpretation of its regulation to establish indication by a preponderance of the evidence, and secondly, and perhaps more importantly, because we think Congress has spoken on this issue as well through the Administrative Procedure Act, and through the Administrative Procedure Act has compelled a holding that the invocation of a presumption of this sort can only be established in an APA proceeding by a preponderance of the evidence.

QUESTION: Mr. Solomons, I am a little unclear how this argument you are making squares with what the SG tells us is the true doubt rule that is applied in these cases, and I would like you to tell me whether you are suggesting in effect or implicitly asking us to say there isn't any such thing as a true doubt. Or would that be the effect of agreeing on this burden of proof question, which seems to me a little different from the question of what the trier of fact should consider in the way of evidence. Aren't you going beyond that?

MR. SOLOMONS: Well, I think we are going just a little bit beyond the true doubt rule. I think it is important for the Court to recognize that the true doubt rule is a rule which is very rarely applied in these cases. It has been applied, and I think largely without contest, in a case where there -- in the invocation analysis there are two absolutely equal pieces of evidence, and the Administrative Law Judge at that point has been permitted in the past to say, I will resolve these doubts in favor of the claimant.

The precise meaning of the true doubt rule, and that is not a troubling rule, we do not think that the rule is precisely in accord with the Administrative Procedure Act, because we think under the Administrative Procedure Act the claimant is required to prove, at least in the invocation analysis, that invocation of this presumption is a very easy task, that his evidence is just a tiny bit better, and establish --

QUESTION: Well, do we even have to decide in this case whether there is such a thing as a true doubt rule and the burden of persuasion issue that you are discussing?

MR. SOLOMONS: Well, I don't think the Court has to decide whether there is a true doubt rule. This was not -- the true doubt rule was not presented in any of these three cases. It was not argued in the Fourth Circuit. It was not argued before an Administrative Law Judge. It just doesn't arise here. Now, I think it would be well for me to suggest that what you hold may not affect it, but it is not, I think, something which is here. It is a different question. The true doubt --

QUESTION: Well, you can't have it both ways. You don't want us to judge the reasonableness of your opinion then, as the government has argued in its brief on this point, by the fact that after all when all else fails you have the true doubt rule. You don't urge us to consider that residual benefit to the claimant as being a part of the whole scheme which we approve.

MR. SOLOMONS: No, I don't think you have to do that. I think that there are arguments pro and con on the true doubt rule as they may be applied to revise the effect of the Administrative Procedure Act in these cases. These arguments have not been made to the Court except in footnotes.

I am not prepared to say that the true doubt rule is absolutely wrong.

I think it is important in understanding how this presumption works to look at its mechanics just briefly. An award of benefits under this program requires the presence of three statutory elements. First, the claimant must have pneumoconiosis. Pneumoconiosis is a statutory term which is defined somewhat more broadly than the medical term is defined. This pneumoconiosis or this disease must be occupationally caused. And the disease must in addition to that result in the total disability or death of the coalminer.

Now, when you take this in the context of the interim presumption, what we find is that the invocation of the presumption presumes that all three of the statutory elements are present, but invocation facts generally do not prove that any one of the basic elements of entitlement are present.

Now, there is one exception to that where an invocation fact may prove but one element but there is no invoca- fact that proves two.

The plain language of the regulation, looking both at the invocation and rebuttal provisions, I think clearly demonstrates that there is a mismatch between the invocation facts and rebuttal facts. They are simply not the same. Evidence of the type which is required to establish invocation of the presumption typically and generally cannot prove rebuttal, but even more important, invocation facts are not rebuttal facts.

The claimant could establish invocation in the sorts of cases that are presented here by proving but one of several simple medical facts, that he has an x-ray, a biopsy which is indicative of some clinical lung disease, or that he has ventilatory studies or arterial blood gas test data which when looking simply at the raw data is indicative of a chronic impairment of respiratory function, or that there is physician opinion evidence that the individual is totally disabled by a respiratory or pulmonary impairment.

Looking at these three, these four presumption invocation facts, it should be clear that perhaps with the possible exception of the x-ray fact, which could be established, that we are not talking about the basic fundamental elements of entitlement. Those are what is presumed. The invocation facts are different. This is not a bursting bubble presumption. We cannot within the terms of the presumption come back in the rebuttal phase and say that claimant's invocation evidence, his blood gas evidence or his ventilatory study evidence is completely false or invalid because it proves nothing.

It does not prove, as we are required to do, negative of one of the three basic elements of entitlement in the case. After invocation on rebuttal we are looking at entirely new facts. Invocation facts are left behind us and the focus changes to the presumed facts, and again here we are required to prove the negative of those presumed facts.

Facts are decided only once. You decide invocation facts in the invocation phase. You decide rebuttal facts in the rebuttal phase. There is very little interplay between the two. But all we are looking for here, and what we have had for 15 years prior to the Fourth Circuit's decision is the right to participate in the whole case. We would like to have the opportunity to cross examine and litigate, not only with respect to the rebuttal, but with respect to the invocation of the presumption as well. We think it is only fair.

What the Fourth Circuit's rule overlooks is this fundamental mismatch between the invocation and rebuttal facts. And in so doing it permits evidence which we can prove to be undeniably false to in many cases to control the outcome of the case.

QUESTION: It is not a total mismatch, at least as to (a) 1. It seems to me you would be able to rebut the (a) 1 --

MR. SOLOMONS: Well, Your Honor --

QUESTION: -- the evidence for the (a) 1 presumption.

MR. SOLOMONS: Justice Scalia, we might be able to in one circuit. The (a) 1 presumption that is invoked by x-ray evidence in one circuit has been found rebuttable on the basis of x-ray evidence. In other circuits -- that is the Seventh Circuit, in a case called Kuehner versus Siegler Coal Company, which is cited in the brief, I believe. But in other circuits, the Third Circuit, in a case called Payasi, we can't do that, because we have to prove not only that the claimant doesn't have clinical black lung disease. We have got to prove that he does not have a statutory disease, statutory black lung disease.

QUESTION: Well, I thought that the rule -- maybe you are arguing from a different rule, for a different rule than! the government, but I thought that the only evidence you were going to allow to come in under (a) is evidence of the same sort, but you want all evidence.

MR SOLOMONS: No --

QUESTION: Well, if you only allow evidence of the same sort to come in, then you still face to some degree --

CHIEF JUSTICE REHNQUIST: Justice Scalia will finish his question at 1:00 o'clock.

(Whereupon, at 12:00 p.m., the Court was recessed to reconvene at 12:59 p.m. of the same day.)

AFTERNOON SESSION

12:59 p.m.

CHIEF JUSTICE REHNQUIST: When we rose, Mr. Solomons, I believe Justice Scalia was in the process of putting a question to you.

QUESTION: You were making the point that we had to adopt the position you were urging because otherwise you would have an opportunity to rebut the data under Subsection (a). But it occurs to me that even if we adopt the position that you excuse, which is essentially the position that the government takes following the agency's interpretation of its rule, you won't necessarily have a chance to rebut all the evidence that is brought forward under (a).

For example, under (a)2 the presumption is established if ventilatory studies establish the presence of a chronic respiratory or pulmonary disease. As I understand the way the agency applies the statute it will allow as rebuttal under (a) only studies of the same sort, so only ventilatory studies that refute the presence of a chronic respiratory or pulmonary disease would be allowed in. Not an autopsy, for example, under (a)2. You would never be able to get in under (b) that autopsy which shows that the ventilatory study was wrong, the way I understand the agency's position. How, am I wrong about their position?

If I am right about their position, then your position does not create the nice logic that you would have us believe.

ORAL ARGUMENT BY MARK E. SOLOMONS, ESQ. ON BEHALF OF THE PETITIONERS - RESUMED

MR. SOLOMONS: Well, you are right about their position, I am relatively sure, and we agree with it completely. All we are asking for in connection with the invocation inquiry is the opportunity to have like kind evidence, whether it is x-rays or ventilatory studies, considered with other x-rays and ventilatory studies.

QUESTION: Okay, but then you are bound to acknowledge that even under your position the statute doesn't make a whole lot of sense, that there is some evidence that you are never going to be able to use to refute other evidence, right?

MR. SOLOMONS: Well, our position is that once you get to the rebuttal inquiry, the evidence that we could be -- that is properly considered in the invocation inquiry doesn't have much of a place once you finally get to rebuttal. It doesn't have much meaning. It is not totally insignificant or irrelevant, but it certainly does not assist in proving a rebuttal fact.

And I think what is most important here is to look at the recent Fourth Circuit decisions in their efforts to apply their own rule. In those decisions, which we have cited in our reply brief, it is perfectly clear that the Fourth Circuit is simply not considering ventilatory studies or blood gas studies or, for that matter, even physician opinion evidence relating to the individual's respiratory or pulmonary disease in the context of the rebuttal inquiry. They refuse to do it. And so under the Fourth Circuit's rule as they have applied it today there is simply no place in which contradictory evidence has a place to be considered.

QUESTION: Under your rule it is just a lesser amount of contradictory evidence that has no place, but you will have to admit that there is some contradictory evidence that will have no place, even under your rule. An autopsy that shows contrary to a ventilatory study, that there is no respiratory or pulmonary disease, where do you get that in under your position?

MR. SOLOMONS: Well, the autopsy is considered in part of the invocation analysis where you determine whether the autopsy by itself or the autopsy in conjunction with other autopsy reports invokes the presumption. It doesn't have any place in consideration of whether ventilatory studies --

QUESTION: You cannot use it to refute a ventilatory study.

MR. SOLOMONS: No, you cannot.

QUESTION: Anywhere, neither under (a) nor (b).

MR. SOLOMONS: Right.

QUESTION: Well, why is that? That makes no sense.

MR. SOLOMONS: What you can do with an autopsy study arguably is use it in the first instance to determine under the first section of the invocation provision whether the individual has coalworkers' pneumoconiosis. That is the place where that kind of evidence is listed and where that kind of evidence ought to be considered. It is a logical and orderly pattern where like kind evidence is considered with other like kind evidence in a reasonably logical fashion under the government's rule and under the rule that we are espousing here.

We are not suggesting that evidence which is in mismatch ought to be considered together. What we are suggesting is, and the original argument, I think, where this line of questioning began is that the invocation facts which have to be proven by the claimant and the rebuttal facts which we are required to prove create an essential mismatch, and since there is no bursting bubble, once we get past the invocation phase and this logical and orderly consideration of the facts which need to be proven in a burden-shifting presumption, that we reach the point where the evidence makes sense, or the consideration of the evidence makes sense.

The preponderance standard for consideration of invocation evidence that has been adopted by the government is the traditional rule for application in a burden-shifting presumption. It is logical and it is fair. It has worked well for many years and there has been no reason to change it. Indeed, we think the Fourth Circuit had no reason to change it. Congress has had the opportunity to look at it twice, and has found no reason to comment on the agency's approach.

The rule simply gives all parties their day in court on the whole case, not just a part of it. It does not deny benefits to deserving claimants. It simply requires valid proof of a single fact. We think that the preferable methodology for the resolution of the questions that are presented here is the Administrative Procedure Act.

I say that because it is in the Administrative Procedure Act that Congress has spoken on the issue that is presented in this case. I also say that because we have had a terrible problem in this program with uncertainty in the rules and standards of proof that have applied -- that have been applied.

There are virtually no two circuits that agree on anything in the application of either the rebuttal or invocation provisions of this presumption or the standards of proof that apply. We think that this is an appropriate place for the Administrative Procedure Act to come in, and indeed the Administrative Procedure Act does apply.

Looking specifically at the invocation provisions, in Steadman versus the Securities and Exchange Commission, this Court held after a comprehensive review of the legislative history of the APA that the proponent of a sanction is required to prove the facts necessary to support it by substantial, that is, by a preponderance of the evidence. Evidence pro and con, similarly, evidence which is relevant to other evidence of the same sort must be weighed. So says the legislative history.

Steadman also holds that where the quantum of proof required to prove a fact is not specified in the underlying statutes, that is where the Administrative Procedure Act steps in in a program in which it is applicable to supply the preponderance standard.

This holding in Steadman with no great leap of logic reasonably and naturally extends to invocation of a burden-shifting presumption like the interim presumption. Invocation and rebuttal under the interim presumption are separate and distinct fact inquiries. Some party bears some burden by some quantity of evidence to prove invocation of this presumption, but it is not specified in the statute.

What the statute does specify is that the APA applies, and we think, as in Steadman, that the APA supplies the preponderance rule for invocation as well as for rebuttal of this presumption.

QUESTION: What do you do about what the government points out in Footnote 30 of its brief, which is that the APA is excluded in cases where it is otherwise provided by regulations of the secretary?

MR SOLOMONS: Well, the reliance placed there is on Section 422 (a) of the Black Lung Act. Section 422 (a) authorized the Secretary to write regulations which deviate from the Longshore Act. I do not think that the Secretary's claim -- and it has been rejected by every circuit, and it has been rejected by Congress. When they really need an exemption from the APA in the Black Lung Program they have gone to Congress to get it. And so obviously I wonder how strongly they believe that in fact Section 422 (a) provides them with the exemption that they request.

QUESTION: It does say that, except as otherwise provided by regulations, et cetera.

MR. SOLOMONS: It says the Longshore Act applies except as otherwise provided by regulations of the Secretary. I don't know that that necessarily would give the Secretary the carte blanche to pick and choose from among the APA rules that he would like to apply and those which he would not like to apply.

Looking at the decisions of this Court, I think that that claim for supersedure would go far beyond any holding that this Court or, for that matter, the circuits have ever reached. It is just too broad.

I would like to reserve the remainder of my time for rebuttal.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Solomons.

We will hear now from you, Mr. Kellogg.

ORAL ARGUMENT BY MICHAEL K. KELLOGG, ESQ. FOR FEDERAL RESPONDENT IN SUPPORT OF THE PETITIONERS

MR. KELLOGG: Mr. Chief Justice, and may it please the Court, under the regulations at issue here, a miner with ten or more years of coal mine experience need only establish one of four basic facts in order to create a presumption of compensable disability.

For example, he can prove the existence of pneumoconiosis by virtue of certain x-ray, biopsy, or autopsy evidence, or he can prove a disabling pulmonary impairment by virtue of certain test evidence. Once he establishes the basic fact in question, the burden then shifts to the mine owner or the director to rebut the presumption of compensable disability.

The regulations only permit the mine owner to rebut the presumption by establishing either that the miner is not disabled or that he does not suffer from pneumoconiosis or that his condition is not caused by coal mine employment.

The word "establish" in the rebuttal provisions has been universally interpreted at the director's urging to mean proved by a preponderance of the evidence.

The question presented here is what the burden of proof is on the miner at the initial invocation stage. The regulations there also state that he must establish the basic fact in question, and the director has interpreted the word "established" there to mean the same thing it means in the rebuttal portion of the regulations. That is, he must prove the fact in question by a preponderance of the evidence.

The regulations on this point are not ambiguous, but what I hope to show is that only the director's interpretation can ultimately be squared with the language of the regulations.

I would like to deal straightaway with what appears to be the greatest problem for the director's interpretation, and that is the first invocation category, which permits the presumption to be invoked upon proof that a chest x-ray, biopsy or autopsy establishes the existence of pneumoconiosis.

Viewed in isolation, the singular there, the reference to a chest x-ray might seem to support the Court of Appeals' view of the regulations. In fact, seen in context, the language strongly supports the director's interpretation. The language of that invocation category is taken directly verbatim from the 1972 regulations of the Social Security Administration dealing with black lung claims filed prior to July of 1973.

The consistent interpretation of that exact same language is that the miner must prove the facts in question by a preponderance of all the evidence in that category. The reason for that is that the regulation requires that the claimant establish the fact in question, and requires that he establish the existence of pneumoconiosis, and that suggests a process of weighing the evidence, of weighing all the like kind evidence and evaluating it.

The regulation may be inartfully drafted to make that point, but with six years of consistent interpretation requiring proof by a preponderance of the evidence, the reincorporation of precisely the same language in the new regulations should have the same effect as that language in the old regulations.

The reference to a chest x-ray --

QUESTION: It also is hard to say it more accurately, isn't it? If you use the plural, the implication would be that even if you showed it by a preponderance, that preponderance would have to consist of more than one chest x-ray.

MR. KELLOGG: That's correct, Justice Scalia. The use of the singular makes clear that a chest x-ray may be sufficient to invoke the presumption, but not that it must be in the face of countervailing more persuasive evidence of the same kind.

QUESTION: Now, does the agency interpret the plural when it is used in the other sections, such as studies, ventilatory studies, does the preponderance there have to be a preponderance that is composed of more than one study?

MR. KELLOGG: No. A single study will suffice to invoke the presumption if --

QUESTION: That is very unfortunate, because that is just not consistent with what you have just been saying.

MR. KELLOGG: Well, it is consistent insofar as the reference to studies clearly indicates that all existing studies are to be considered and weighed in the process of determining whether, for example, under Category (b)2 the person has established the existence of a pulmonary impairment, or under category b(3) whether the studies have demonstrated a respiratory disease, and the reference there clearly indicates that there is to be a weighing process, and that more than one study can be relevant, but it has been the consistent interpretation of the director that a single study will suffice in the absence of countervailing studies proving the contrary.

QUESTION: Mr. Kellogg, does the true doubt rule that you refer to in the brief apply at the interim presumption stage?

MR. KELLOGG: It would apply only at the interim presumption stage. That's correct, Justice O'Connor.

QUESTION: And not at the rebuttal stage?

MR. KELLOGG: No, not at the rebuttal stage. At the rebuttal stage the burden is -- the proof is already on the mine owner to rebut the presumption. The true doubt rule only comes into play when the burden is on the miner and the evidence is in equipoise. If the burden is on the min owner --

QUESTION: Well, how can you say in one breath that there is a burden of persuasion by a preponderance and yet have the true doubt rule?

MR. KELLOGG: Well, the true doubt rule --

QUESTION: And where do we find the true doubt rule?

MR. KELLOGG: The true doubt rule is published in the Federal Register accompanying the interim regulations in a discussion of the rebuttal provisions. It is an attempt by the director to implement Congress's intent to make benefits liberally available, to recognize that there are certain difficulties in proving pneumoconiosis through medical evidence, and Congress made it fairly clear that they wanted the benefit of the doubt to be given to the miners, and the true doubt rule is an attempt to implement that.

However, I would stress that no issues are foreclosed by that. It merely allows the burden to shift to the mine owner on rebuttal, and all issues are open on rebuttal. Justice Scalia asked earlier how the rebuttal mechanism works, whether it, for example, by showing the ventilatory studies established the existence of impairment, then autopsy evidence would be admissible on rebuttal.

It would indeed be admissible on rebuttal under the (b)4 category, which allows the mine owner to prove the miner does not have pneumoconiosis.

QUESTION: Well, I see. But not prove that he -- you can't use it to prove he doesn't have a respiratory or pulmonary disease?

MR. KELLOGG: You cannot prove that by virtue of the same sort of evidence.

QUESTION: But that being one category of respiratory disease, it comes to the same, you are saying.

MR. KELLOGG: That's correct. Pneumoconiosis and a respiratory disease are not one and the same thing, and they are kept distinct for purposes of the rebuttal categories.

QUESTION: Let me just be sure I understand that. You are saying the rebuttal could be used to prove he did not have pneumoconiosis, the black lung disease itself. It could not be used to refute the conclusion that there was some chronic respiratory and pulmonary disease? Is that what you are saying?

MR. KELLOGG: It would depend on which invocation category we used.

QUESTION: Well, Number 2.

MR. KELLOGG: In Number, 2 --

QUESTION: Ventilatory studies establish the presence of a chronic respiratory or pulmonary disease. That has been established, and the presumption therefore is triggered. Is that right?

MR. KELLOGG: That's correct.

QUESTION: Now, having triggered the presumption, may they offer evidence that tends to disprove that narrow fact, that there was the presence of such a disease?

MR. KELLOGG: Yes. They can't. They cannot offer more pulmonary studies to show that he doesn't. In other words, all the pulmonary studies will have had to have been considered and weighed at the invocation stage, but all evidence relevant to whether the person has a pulmonary impairment, for example, the opinions of a doctor who has examined the miner, as well as blood gas studies, would be admissible to show --

QUESTION: Why wouldn't the doctor's opinion be admissible at the preliminary stage to show that the studies do not in fact establish the conclusion because doctors don't interpret them that way, just as in reading x-rays the distinction between the x-ray and the interpretation of the x-ray. The x-ray doesn't establish it unless the sum opinion of all those who looked at it, at least the preponderance of that view, supports that conclusion.

MR. KELLOGG: Well, because the (a)2 invocation category relies on specific values. The tests are given specific values, and if a miner meets those values in a reliable test, then the category is invoked provided there are not other tests of the same sort which preclude invocation under that category.

If the Court has no further questions.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Kellogg.

We will hear now from you, Mr. Lowe.

ORAL ARGUMENT OF C. RANDALL LOWE, ESQ. ON BEHALF OF THE RESPONDENTS

MR. LOWE: Thank you, Mr. Chief Justice, and may it please the Court, the petitioner asserts that the administrative agency's interpretation of the invocation provision at 203 is reasonable and entitled to substantial deference. The controlling rule in this matter of whether the administrative interpretation be given substantial deference is whether it is plainly erroneous or inconsistent with the regulation or clearly frustrates the statutory mandate.

The Fourth Circuit in reviewing the director's interpretation of the regulation found that the agency's interpretation renders the regulation internally inconsistent, and it is plainly erroneous. The Fourth Circuit gave a clear and common sense ruling to 203(a), finding that a coal miner who shows that he has been employed in a coal mining employment for ten years will have the benefit of the presumption that he suffers from pneumoconiosis and is permanently disabled from that disease if he shows a chest x-ray and a recent medical opinion under (a)1 and (a)4.

They found that the clear reading of that regulation shows that you have to produce only one single piece of evidence. As to (a)2 and (a)3 on ventilatory studies and blood gas studies, they found that studies, for example, in ventilatory studies you have to produce three different tests before the quality standards applied in the statute will allow that to be a valid test. So they also found that you only had to produce one breathing study.

The petitioner argues that that construction by the Fourth Circuit violates the black lung benefits section at 413(b) and that all relevant evidence is not considered at the invocation stage. They state that the legislative history does not say that all relevant evidence must be considered only at the rebuttal stage, and we would argue that the legislative history is silent on that. It doesn't say which stage all relevant evidence is to be considered, but the regulations themselves at 203(b) states that all relevant evidence shall be considered at (b).

QUESTION: Does the presumption that is established in (a) amount to any more than saying that a tie goes to the claimant?

What do you need to overcome the presumption, any more than a showing by a mere preponderance that the presumption is not correct? Is that all that it takes?

MR. LOWE: Well, Justice, we are saying that, for example, x-ray evidence, if --

QUESTION: Just answer that question. You have gone through stage (a). The presumption has been established. What does it take under (b) to upset it in your view, just a preponderance of all of the medical evidence?

MR. LOWE: Yes, we -- the burden --

QUESTION: If that is the case then, isn't this all a tempest in a teapot, because the agency is saying anyway that the tie goes to the claimant. What is the name of the rule that --

QUESTION: True doubt.

QUESTION: The true doubt rule. So what -- you know, what is all this about?

MR. LOWE: The problem is, they speak of the true doubt rule. I have heard of it. I have never seen it applied. The true doubt rule is when everything is exactly equal, then the doubt goes to the claimant.

QUESTION: Which amounts to saying there is a presumption that the claimant wins. So you have what you are seeking if you have the true doubt rule, no matter how you come out on this quibble between (a) and (b).

MR. LOWE: The problem is, who carries the burden. The problem that we are finding at the Administrative Law Judge level is a coal miner is treated by his treating physician, who might have ordered one or two x-rays, determined that he has a disease, and does not continue granting or ordering x-rays. It is not necessary. But at the time of the hearing the coal operator will come in and have sent that x-ray to ten or twelve different doctors and have ten or twelve negative readings.

So at that time when they are looking to see under (a)1 who wins, it does not become who has the best evidence, who has the quality of evidence, it becomes a numbers game, and claimants' attorneys have begun to call it a numbers game. We believe that by invoking just one piece of evidence then takes the burden off of the coal miner to produce all this substantial amount of evidence. It then puts the burden upon the coal operator or the director to rebut those presumptions, and at that point, as the Fourth Circuit had ruled in reviewing all the relevant evidence, then the Court looks at everything that the coal company has put in, and using the director's position, where they say that all like kind evidence will be looked at at (a)1 in the invocation stage, but when you go to rebuttal it cannot be used again, it clearly shows what the Fourth Circuit says. Under their interpretation the rebuttal stage is superfluous.

Take, for example, the x-rays. If you weigh all the x-rays and the administrative Law Judge finds that the invocation is invoked at (a)1, then there is no way that they can rebut that the person suffers from pneumoconiosis because -- and under their definition in (b) they cannot reweigh the x-ray reports. Even a doctor's opinion cannot reweigh the x-ray reports. So it shows that the Fourth Circuit is right in that the rebuttal was superfluous. It conflicts or it violates 203(b) in that 203(b) directly says that all relevant evidence shall be considered.

And I would also suggest that in that case it makes the presumption irrebuttable. Now, the basic reason that the Fourth Circuit believed that it is correct is because of the legislative history. I don't believe it is a conflict that this is an unusual piece of legislation. Congress has singled out victims of one industry to develop a program that would benefit them from a disease that they derive from that industry.

Congress intended the program to be extremely liberal. They intended that, for the most part, that the burden be upon the code operator or the director, and under the Circuit Court's construction of this regulation the miner could raise the presumption of totally disabling pneumoconiosis with a minimum of evidence. Then the burden of persuasion is shifted to the director or the code operator to go forward and produce the evidence where they are in a better position to do that.

The procedure avoids placing on the miner, who can least afford it, the burden of responding, at least initially, to a plethora of medical evidence more easily generated by the operator, and again, that is in what we call the numbers game, the code operator has the ability by going out and contacting doctors, in report after report, to completely overwhelm the coal miner, and the director's interpretation of this regulation allows that to happen. It completely wipes out the remedial intention of the legislation of the Congress.

As far as the APA Act applying, we find it interesting that on one hand the petitioner would ask that you follow the director's interpretation of the regulations, but he does not accept the director's interpretation does not apply, but at any rate, I believe that the section which incorporates the APA and the Black Lung Act, 30 USC 932(a), specifically states that it may be excluded by regulations of the Secretary.

QUESTION: Which regulations exclude it?

MR. LOWE: Sir?

QUESTION: Which regulations exclude it?

MR. LOWE: We would state that under (a), that the (a) and (b) show what you have to produce for the persuasion to be shifted to the code operator or the director, and then under (b), with all relevant evidence to be considered, it sets forth a showing that all evidence or the preponderance of the evidence rule will then be applied, so before any decision or final decision is made by an arbitrator, in this case Administrative Law Judge, the preponderance evidence is applied. The federal respondent cites this Court's case of NLRB versus Transportation Management for that proposition that under Section 7(c) of the Administrative Procedures Act the question is that before an agency's decision is made, that the preponderance of the evidence be weighed, and here that does not necessarily mean that it has to be at the invocation stage.

The invocation stage is to determine who will carry the burden of proof. If it is shifted, then the evidence is -- all the evidence is weighed under the preponderance of the evidence standard, but that burden is upon the code operator or the director.

QUESTION: Is your position that a biopsy, (a)1 means just a single biopsy, what about (a)2? Does ventilatory studies mean more than one?

MR. LOWE: It means one study, Justice, but--

QUESTION: I thought you were urging -- it seems to me that the foundation of your argument is the literal language of the statute that says a chest roentgenogram leaves a, simply one, you are saying, but (a)2 says ventilatory studies.

Now, if you are going to be literal, ventilatory studies means more than one.

MR. LOWE: Well, but under the context of the regulation it takes three studies to make one. You have to -- it is a complicated process. Apparently they put them through three tests and you have to submit the results of the three tests and the tracings from the three tests or it will not be accepted. That is one ventilatory study.

So the Fourth Circuit, and I would agree, saying studies just means that you have three studies but that only -- that only makes up one ventilatory studies under the regulations. The same thing for blood gas studies. If you have ever seen a blood gas study, it just has -- it has values and numbers, just probably 15 or 20 that all combine to make up that one blood gas study that you apply under the charts under (a)2 and (a)3 to see if you invoke the presumption.

In conclusion --

QUESTION: If the claimant fails to invoke the presumption, he still -- he isn't through, is he? All he means is -- he still has got a claim if he wants to proceed under the statute, I suppose.

MR. LOWE: Well, no, Justice, I would disagree. That is the basic threshold. If they cannot produce enough evidence to invoke the presumption, then therefore you would not go any further. Basically, if you could not produce one single x-ray that would show you suffer from pneumoconiosis, then apparently you don't have any x-rays.

What I am saying is, what the Fourth Circuit's interpretation that the minimal amount of evidence you would have to prove is so low that I believe if you could not even prove that that your claim would not go any further, because you would not have any evidence at all.

QUESTION: Well, isn't there any other way to prove you have got the disease?

MR. LOWE: Not under 203(a). You can -- x-ray --

QUESTION: Well, that just goes to whether the presumption is invoked.

MR. LOWE: But under 203 those are the only things that you can offer to prove that you suffer from pneumoconiosis and that you are disabled.

QUESTION: I was just reading the government's Footnote 3. "If a claimant is unable to invoke the presumption or the presumption is invoked and rebutted, the claimant may nonetheless attempted to establish eligibility in either of two other ways." Then it goes on to tell what it is.

But you suggest that really this is the whole ball game.

MR. LOWE: There are other regulations you can turn to, but if you can't get it here I don't think in reality you are going to get it at all. Usually the last paragraph of the Administrative Law Judges' opinions say, we have considered the evidence under such and such a section and such and such section, but if you can't -- if you can't produce enough under the Fourth Circuit's interpretation to invoke the presumptions under Section (a), I do not believe that you are going to qualify for any of the other regulatory provisions.

In conclusion, I would ask that you adopt the interpretation of the Fourth Circuit, in that the Fourth Circuit has given a common sense reading to 20 CFR 727.203(a) and (b), and they have reviewed the legislation and interpreted that legislative history to give the coal miner the remedial nature of the act that they intended.

QUESTION: Before you sit down, may I ask you to comment? One of your opponents emphasized the word "establish" in the regulation. A chest x-ray or biopsy establishes the existence of pneumoconiosis. Do you take the word "establish" to mean constitutes some evidence tending to prove? That is what it is.

MR. LOWE: I would take that to mean that the x-ray, based upon the standard that the x-ray has to be in, which is, 1/0 is the first step to show that you have pneumoconiosis, I would take that to mean that that x-ray shows or proves that you have pneumoconiosis, that it is not negative.

QUESTION: Even if there are ten other x-rays that support the contrary conclusion?

MR. LOWE: Supports the contrary, it is our position that your presumption is invoked and then, unlike the director in not being able to look at any other x-ray, we believe that under (b) we look at all of the evidence then and determine if those, if in the Administrative Law Judge's opinion those other nine x-rays show that you do not have pneumoconiosis.

QUESTION: I thought I understood this before. You are saying that the one isolated piece of evidence establishes a presumption that there is the disease.

MR. LOWE: Yes.

QUESTION: And in addition establishes the presumption of causal connection and total disability and all the rest.

MR. LOWE: Yes, sir.

QUESTION: So that it performs two functions under your view. Under their view it performs only the second function, because you have proved the fact in order to be entitled to the presumption.

MR. LOWE: That's correct.

QUESTION: Yes. And you think the word "establish" bears your reading. I have difficulty with that. I am just looking at the language. That is all I am doing right now.

MR. LOWE: I would think "establish" means "prove," and does not set forth a burden of proof of preponderance of the evidence as the director thinks it established.

QUESTION: But do you agree with your opponent's reading of the word "establish" when you are talking about rebuttal?

MR. LOWE: No, I do not agree. I think it means the same thing in rebuttal, but in the rebuttal phase --

QUESTION: You mean they win with just some evidence then?

MR. LOWE: 203(b) says in adjudicating a claim under this subpart, all relevant evidence shall be considered, and I think under (b) that is where the preponderance of the evidence is established in the head of that subpart. It tells you, at this point you are now to consider all the relevant evidence in the record. And I don't think it has anything to do with the word "establish."

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Lowe.

Mr. Solomons, you have one minute remaining.

ORAL ARGUMENT BY MARK E. SOLOMONS, ESQ. ON BEHALF OF THE PETITIONERS - REBUTTAL

MR. SOLOMONS: Although it is not terribly relevant to the case, I would like to clear up one misconception about mine operators overwhelming the record with evidence in these cases.

In order to generate evidence you have to produce the claimant. The claimant simply does not have to come and take as many examinations or chest x-rays or tests as we want him to. The claimant is not required to do that, and the Administrative Law Judges can certainly protect them from that, and they do.

QUESTION: There could be eight or ten different doctors.

MR. SOLOMONS: Yes, that's right. They can do that.

QUESTION: Without the claimant's consent.

MR. SOLOMONS: The claimant can do the same thing, and the Labor Department will pay for it, or if the claimant wins, then we pay for it.

I think that the -- with respect to the discussion of the singular and plural usages in the invocation portion of the interim presumption, that may not be really where the critical question lies. I think the critical question lies in connection with the rest of what it says.

For example, the reference to an x-ray is not an inaccurate reference if that x-ray is the most credible and reliable piece of evidence or x-ray evidence in the record. That certainly can establish if the claimant has pneumoconiosis.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Solomons.

The case is submitted.

(Whereupon, at 1:38 o'clock p.m., the case in the above-entitled matter was submitted.)