HARRIET PAULEY, SURVIVOR OF JOHN C. PAULEY, PETITIONER V.
BETHENERGY MINES, INC., AND DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR

   CLINCHFIELD COAL COMPANY, PETITIONER V. DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, AND
JOHN A. TAYLOR

   CONSOLIDATION COAL COMPANY, PETITIONER V. DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, AND
ALBERT C. DAYTON

   No. 89-1714, No. 90-113, No. 90-114

   In The Supreme Court Of The United States

   October Term, 1990

   On Writs Of Certiorari To The United States Courts Of Appeals For
The Third And Fourth Circuits

   Reply Brief For The Director, Office Of Workers' Compensation
Programs, United States Department Of Labor

   The Black Lung Benefits Act provides benefits "to those who have
become totally disabled because of pneumoconiosis, a chronic
respiratory and pulmonary disease arising from coal mine employment."
Pittston Coal Group v. Sebben, 488 U.S. 105, 108 (1988), citing
Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 141 (1987).  See
also 30 U.S.C. 921(a), 922(a)(1), 932(c) (provisions authorizing the
payment of benefits for total disability or death "due to
pneumoconiosis").  The third and fourth rebuttal methods contained in
DOL's presumption regulation, which are at issue in these consolidated
cases, ensure consideration of all of the statutory elements of
entitlement by allowing a party contesting entitlement to prove that
the miner did not have pneumoconiosis or did not become totally
disabled from the disease.  20 C.F.R. 727.203(b)(3) and (4).

   The claimants argue that Congress, by providing in Section
402(f)(2) of the Act that DOL's "(c)riteria * * * shall not be more
restrictive than the criteria applicable to a claim filed on June 30,
1973" (30 U.S.C. 902(f)(2)), required DOL to ignore whether a miner
had pneumoconiosis or whether his disability was caused by the
disease.  Thus, Dayton and Taylor contend that a miner who does not
have pneumoconiosis, but is unable to do coal mine work because of a
reduced ventilatory capacity resulting solely from age, obesity, or
cigarette smoking, is entitled to black lung benefits.  In Pauley's
view, if a working miner with simple pneumoconiosis becomes totally
diabled due to a non-work related cause such as a heart attack or an
automobile accident, the coal industry has to pay him black lung
benefits.

   The claimants have not shown that they would have obtained benefits
on June 30, 1973, under the "criteria" applied by HEW, which
administered the program at that time.  In any event, they have failed
to show that Congress intended to mandate such results, and serious
constitutional problems would be presented by requiring the coal
industry to pay black lung benefits to miners who do not have the
disease or are not disabled by it.

   1. Criteria applied by HEW.  In our opening brief we recognized
(Br. 16) that it is not clear exactly how HEW applied its opaque
presumption regulation.  20 C.F.R. 410.490.  In our view, however, in
order to invoke HEW's presumption, claimants first had to establish
the existence of a respiratory or pulmonary impairment (subsection
(b)(1)), and next had to show that their disability was due to
pneumoconiosis (subsection (b)(2)).  The burden of showing that the
miner was not totally disabled then shifted to the person challenging
entitlement to benefits.  /1/

   a. Dayton acknowledges (Br. 26) that subsection (b)(2) of HEW's
regulation, which states that the claimant must show that "(t)he
impairment established in accordance with paragraph (b)(1) of this
section arose out of coal mine employment," required the claimant to
prove that the miner's impairment was caused by pneumoconiosis.  /2/
Thus, Dayton appears to agree that the question whether he has
pneumoconiosis is critical to his claim.  Yet Dayton then contends
that subsection (b)(3) of HEW's regulation, which states that a miner
presenting qualifying ventilatory study scores "will be presumed to be
totally disabled due to pneumoconiosis arising out of coal mine
employment * * * if he has at least 10 years of the requisite coal
mine employment," would have allowed him to avoid the requirements set
out in subsection (b)(2).  In Dayton's view (Br. 26), subsection
(b)(3) "is not a third co-equal invocation requirement but * * * is a
means of satisfying the causation requirement" of subsection (b)(2).
Thus, under Dayton's construction of subsection (b)(3), a miner with
the requisite experience who presented qualifying ventilatory study
scores was conclusively presumed by HEW to suffer from pneumoconiosis.
 /3/ By this sleight of hand, Dayton claims that the Fourth Circuit
correctly held that whether he has pneumoconiosis "is superfluous and
has no bearing on the case." 90-114 Pet. App. 7 n.*.

   Since it has been determined that Dayton does not have
pneumoconiosis (90-114 Pet. App. 11-12, 24-26), his entire argument
hinges on his claim that he would have had the benefit of a
conclusive, or irrebuttable, presumption.  HEW's regulation, however,
does not state that anything was conclusively presumed.  HEW's Manual
stated, to the contrary, that a miner in Dayton's precise
circumstances would not be awarded benefits if there was "evidence
that rebuts * * * a finding" that he is "totally disabled due to
pneumoconiosis." Coal Miner's Benefits Manual (Pt. IV), Temp. Instr.
No. 21, Section 1B6(d) (1972) (emphasis added).  Thus, HEW did not
regard its regulation as establishing a conclusive presumption of
entitlement to benefits.  And evidence that a miner does not have
pneumoconiosis necessarily rebuts the presumption that he is disabled
by it.  /4/

   Furthermore, and most fundamentally, Dayton never comes to grips
with the fact that he seeks black lung benefits even though it was
determined that he does not have black lung disease.  There is no good
reason to think that HEW would have awarded benefits in such a case.
/5/

   b. Pauley had simple pneumoconiosis and was disabled, but his
"disability did not arise even in part out of coal mine employment."
89-1714 Pet. App. 13.  With respect to DOL's fourth rebuttal method,
Pauley acknowledges (Br. 20) that, in x-ray cases such as his,
although the method "lacks a discrete companion test in the HEW
interim provision, it does not set forth more restrictive criteria
than those in the HEW interim provision." However, Pauley contends
that DOL's third rebuttal provision, which provides for rebuttal where
"(t)he evidence establishes that the total disability or death of the
miner did not arise in whole or in part out of coal mine employment,"
is invalid.  Where Dayton and Taylor find a conclusive presumption of
pneumoconiosis in HEW's regulation, Pauley finds a conclusive
presumption of "disability causation," by which he means that the
miner was rendered diabled by pneumocniosis rather than from some
other disease or from an injury.  /6/

   The premise for Pauley's argument is that early in its
administration of the black lung program, HEW supposedly decided to
eliminate any inquiry into the cause of a miner's disability because
doing so was too difficult.  89-1714 Pet. Br. 3-6, 28-30.  In fact,
however, HEW required in the early years of its administration that
pneumoconiosis had to be the "primary reason" for a miner's
disability.  20 C.F.R. 410.403(b) (1972);  GAO, Report to the
Congress, Achievements, Administrative Problems, and Costs in Paying
Black Lung Benefits to Coal Miners and Their Widows 26 (1972) (1972
GAO Report).  HEW did not apply this rule harshly:  "Although the
weight of medical opinion holds that pneumoconiosis is seldom the
cause of disabling impairment until and if it reaches the complicated
stage," HEW generally granted benefits "where the X-ray evidence
discloses only first-stage (simple) pneumoconiosis accompanied by
severe impairment of breathing." H.R. Rep. No. 460, 92d Cong., 1st
Sess. 25 (1971) (minority views).  /7/ But HEW denied benefits where
it was clear that the miner's death was not caused by pneumoconiosis.
Thus, HEW "almost always denied" benefits where a death occurred less
than 24 hours after the onset of an acute disease such as a "coronary
occlusion()" (1972 GAO Report 36), or where a miner died "in an
automobile accident," or from "malignancy in other organs of the body"
(Black Lung Legislation, 1971-72:  Hearings Before the Subcom. on
Labor of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st
& 2d Sess. 524, 539-540 (1972) (1972 Senate Hearings)).  There is no
reason to believe HEW would have ignored the statute and granted
benefits if the evidence showed, for example, that a heart attack or
an automobile accident had disabled a miner.  /8/

   Nor has Pauley shown that HEW responded to the 1972 amendments by
ignoring the statutory requirement that benefits should be awarded
only in cases where death or disability was caused by pneumoconiosis.
Those amendments, after all, created a presumption in Section
411(c)(4) for certain long term miners who had a totally disabling
respiratory or pulmonary impairment, and expressly conditioned the
presumption by allowing for rebuttal by proof that a miner's
"respiratory or pulmonary impairment did not arise out of, or in
connection with, employment in a coal mine." 30 U.S.C. 921(c)(4).  /9/
Indeed, it would have been perverse for HEW to react to the
congressional enactment of an explicit disability causation condition
by eliminating such a requirement from the regulations implementing
the statute.  In our view, subsection (b)(2) of HEW's regulation,
which states that the claimant must show that "(t)he impairment
established in accordance with paragraph (b)(1) of this section arose
out of coal mine employment," incorporated the disability causation
requirement.

   Subsection (b)(2) can be read as merely establishing a "disease
causation" requirement -- a requirement that the claimant establish
that his respiratory impairment was caused by exposure to coal mine
dust rather than some other type of dust.  But there are a number of
good reasons to read subsection (b)(2) as including a diability
causation requirement as well.  First, the language of the subsection
-- "(t)he impairment * * * arose out of coal mine employment" --
naturally may be read that way.  Moreover, that language seems to have
been borrowed from Section 411(c)(4) -- which allows for rebuttal
where the "impairment did not arise out of, or in connection with,
employment in a coal mine." Such borrowing is likely to have occurred
since the regulation containing subsection (b)(2) was promulgated in
1972 shortly after the enactment of Section 411(c)(4).  Because
Section 411(c)(4) indisputably establishes a disability causation
requirement, it is reasonable to construe subsection (b)(2) similarly.
 /10/

   In addition, HEW's manual implemented subsection (b)(2) by stating
that a miner was "presumed to be totally diabled due to pneumoconiosis
arising out of coal mine employment * * * if he has at least 10 years
of underground or comparable coal mine employment * * * and there is
no evidence that rebuts such a finding." Section IB6(d).  Evidence
that a miner's disability is not due to coal mine employment obviously
rebuts that presumption.  Moreover, construing the regulation as a
conclusive presumption of diability causation puts the regulation at
odds with the statute, which repeatedly makes clear that black lung
benefits are to be awarded to persons whose disability is "due to
pneumoconiosis." 30 U.S.C. 901(a), 921(a), 922(a)(1), 932(c).  And
Pauley's construction leads to absurd results:  under it, a miner
would be entitled to black lung benefits even if it were clear that
his disability resulted from a traffic accident that was totally
unrelated to his employment.  /11/ Finally, as discussed below, the
adoption of Pauley's construction would lead to a serious due process
problem if coal companies were required to pay black lung benefits
even where they could show that a miner's disability is totally
unrelated to his employment.  /12/

   c. It may be that no interpretation of HEW's regulation can make
total sense of it.  The regulation was not drafted with precision.
While we believe HEW's regulation authorizes rebuttal by the methods
explicitly set forth in DOL's third and fourth provisions, HEW's
regulation admittedly does not do so as clearly.  /13/ But DOL
officials reported shortly after the passage of the 1978 amendments
that HEW did not consider it two express rebuttal provisions to be
exclusive.  43 Fed. Reg. 36,826 (1978).  /14/ DOL proposed the
presumption regulation at issue less than two months after the
enactment of Section 402(f)(2).  43 Fed. Reg. 17,765, 17,771 (1978).
/15/

   In these circumstances, it is best to presume, as the Third Circuit
did, that HEW's regulation complied with the statute by allowing the
equivalent of DOL's third and fourth rebuttal methods.  Whether, under
HEW's regulation, the inquiries into disability causation took place
before or after invocation, with ten years of coal mining or with 15,
and with or without a shift of the burden of persuasion is irrelevant
because DOL's regulation gives claimants the benefit of the doubt on
each of these issues, and therefore is not more restrictive than HEW's
regulation.

   2. Congressional intent.  In our opening brief, we showed that
because Congress in Section 402(f)(2) required DOL to apply criteria
"not * * * more restrictive than (those) applicable to a claim filed
on June 30, 1973" (emphasis added), the ultimate question is what
criteria Congress understood to apply to Part B claims, not what
criteria HEW actually applied.  We also showed that Congress must have
understood that Part B cliams would be denied where a miner was not
totally disabled "due to pneumoconiosis," and that a contrary
construction of Section 402(f)(2) posed serious constitutional
problems.

   a. Pauley appears to believe (Br. 37-38) that HEW's regulation is
all that matters, and that Part B of the Act is essentially irrelevant
in construing Section 402(f)(2).  Dayton admits (Br. 32) "that, for
purposes of Section 402(f)(2) analysis, the central question is what
'criteria' were 'applicable' under Part B (and under the HEW interim
provision in paticular), not what criteria HEW actually applied." Yet
in Dayton's view (Br. 33), what HEW thought is all that matters
because the agency's construction of the statute is entitled to
deference under Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 844 (1984).

   The Chevron standard does not allow an agency to override an act of
Congress.  To the contrary, a regulation is invalid, despite the
deference due under Chevron, where the regulation is "contrary to the
statute." 467 U.S. at 844.  "If the intent of Congress is clear, that
is the end of the matter." Id. at 842.  It is where "the statute is
silent or ambiguous with respect to the specific issue" that the
question becomes whether "the agency's answer is based on a
permissible construction of the statute." Id. at 843.  See Public
Employees Retirement System v. Betts, 109 S. Ct. 2854, 2863 (1989)
("no deference is due to agency interpretations at odds with the plain
language of the statute itself").  Congress stated that the purpose of
the Black Lung Benefits Act is to provide compensation for "death or
total disability due to pneumoconiosis." 30 U.S.C. 901(a).  In Part B
of the Act, Congress authorized HEW to promulgate regulations
providing for "payments of benefits in respect of total disability of
any miner due to pneumoconiosis." 30 U.S.C. 921(a).  Congress further
enacted the presumption in Section 411(c)(4), 30 U.S.C. 921(c)(4),
which evpressly provides for rebuttal by proof that a miner does not
have pneumoconiosis or is not totally disabled as a result of the
disease.  In the next section of Part B, Congress set forth rate
schedules for benefits to be paid "(i)n the case of total diability of
a miner due to pneumoconiosis." 30 U.S.C. 922(a)(1).  If HEW's
regulation made it irrelevant that a miner was not disabled due to
pneumoconiosis, the regulation was contrary to the statute.  /16/

   Moreover, in creating a regime of statutory rebuttable presumptions
in Section 411(c), which is in Part B of the Act, Congress must have
understood that rebuttability principles applied generally under Part
B.  The exception to that rule was the irrebuttable presumption set
forth in Section 411(c)(3), 30 U.S.C. 921(c)(3), which provides that
claimants presenting x-ray, biospsy, or autopsy evidence of
complicated pneumoconiosis are entitled to benefits.  But Section
411(c)(3), unlike HEW's regulation, explicitly states that it creates
an "irrebuttable" presumption.  And even with respect to that
provision, this Court held in Usery v. Turner Elkhorn Mining Co., 428
U.S. 1, 22 n.21 (1976), that a statutory gloss was required to make
clear that "an operator can be liable only for pneumoconiosis arising
out of employment in a coal mine." Congress was surely aware of this
Court's 1976 decision in Turner Elkhorn when it enacted Section
402(f)(2) in 1978, and it must have understood that to the extent
causation requirements were not expressly set forth in HEW's
presumption regulation, such requirements were implicitly imposed by
the statute and the Constitution.

   b. As the decision in Turner Elkhorn also shows, our construction
of Section 402(f)(2) is supported by the need to avoid a serious
constitutional question concerning the validity, under the Due Process
Clase, of imposing liability on coal mine operators for disabilities
that do not arise out of coal mining.  The claimants attempt to avoid
this question by construing Section 422(c), 30 U.S.C. 932(c), to allow
individual coal mine operators to escape liability for benefits in
cases where total disability was not "due to pneumoconiosis," while
preserving a claimant's eligibility for benefits by shifting liability
to the Black Lung Disability Trust Fund in such cases.  89-1714 Pet.
Br. 45-46;  90-114 Resp. Br. 45.  This attempt not only misconstrues
the purpose of Section 422(c), but also fails to eliminate the
constitutional problem.

   Section 422(c) provides rules that govern coal industry
responsibility for black lung benefits.  In general, individual coal
mine operators are liable, but in certain circumstances liability
shifts to the Black Lung Disability Trust Fund, which is financed by a
tax on coal.  See 30 U.S.C. 932(c), 934;  26 U.S.C. 4121(a), 9501.
/17/ There is no indication in this apportionment of liability scheme
that different adjudicatory rules apply depending on whether the Trust
Fund or an individual operator is liable for benefits.  To the
contrary, Section 422(a), 30 U.S.C. 932(a), appears to provide that
the same rules and procedures will apply to the operators and the
Trust Fund.  The claimants' creation of different rules depending on
whether benefits are paid by the Trust Fund or an individual operator
has no basis in the statute, which does not hint that the Trust Fund
would be required to pay benefits to miners who are not totally
disabled due to pneumoconiosis.

   Even if the claimants' interpretation of Section 422(c) made sense,
however, it would still not eliminate the constitutional question
arising from their reading of the statute.  Their interpretation would
only change the constitutional question from whether Congress could
impose liability on individual coal mine operators for disabilities
unrelated to coal mining to whether Congress could impose such
liability on the industry as a whole through an industry-financed
trust fund.  That latter question would require this Court to consider
the continuing vitality of Railroad Retirement Bd. v. Alton R.R., 295
U.S. 330, 334 (1935) (invalidating a law requiring an
industry-financed trust fund, administered by the government, to pay
pensions to former railroad employees).

   For these reasons and the reasons stated in our opening brief, the
judgment of the Third Circuit in No. 89-1714 should be affirmed, and
the judgments of the Fourth Circuit in Nos. 90-113 and 90-114 should
be reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT P. DAVIS

      Solicitor of Labor Department of Labor

   FEBRUARY 1991

   /1/ The presumption was useful to claimants, as a practical matter,
because the proof required to establish the existence of an impairment
under subsection (b)(1) did not necessarily show an impairment that
was severe enough to cause total disability.  See Usery v. Turner
Elkhorn Mining Co., 428 U.S. 1, 7 (1976) (simple pneumoconiosis,
evidence of which satisfies subsection (b)(1)(i), is seldom
disabling);  Black Lung Benefits Act Provisions of the Federal Coal
Mine Health and Safety Act:  Hearings Before the House Comm. on
Education and Labor, 95th Cong., 1st Sess. 274-275 (1977) (testimony
of Dr. Harold I. Passes, former Acting Chief Medical Officer of the
Bureau of Hearings and Appeals of the Social Security Administration)
(the ventilatory test values set out in subsection (b)(1)(ii) do not
prove total disability).

   /2/ Congress defined "pneumoconiosis" to mean "a chronic dust
disease * * * arising out of coal mine employment." 30 U.S.C. 902(b).
Because a claimant had to show that a miner's respiratory or pulmonary
impairment "arose out of coal mine employment" under subsection
(b)(2), that subsection required claimants to prove that the miner had
"pneumoconiosis" as defined by the Act.

   /3/ Dayton repeatedly refers to "conclusive presumptions" in HEW's
regulation or alternatively states that claimants were "conclusively
presumed" under the regulation to satisfy an element of entitlement.
See Br. 4, 11, 15, 25 n.6, 32, 33 & n.21.

   /4/ Our construction of the regulation gives meaning to subsection
(b)(3).  That subsection allowed a miner with only ten years'
experience to invoke the presumption on the basis of ventilatory study
scores.  In the absence of subsection (b)(3), a claimant relying on
ventilatory studies would have been required to show 15 years of coal
mine work, as stated in subsection (b)(1)(ii).  HEW apparently set out
the 15-year requirement established by 30 U.S.C. 921(c)(4) in
subsection (b)(1)(ii), and then implemented Congress's instruction not
to apply the 15-year requirement rigidly (S. Rep. No. 743, 92d Cong.,
2d Sess. 13 (1972)) by lowering the requirement to ten years in
subsection (b)(3).

   /5/ Nor does Taylor, who like Dayton was found not to have black
lung disease (90-113 Pet. App. 18a-19a, 27a-31a), suggest why he
should be entitled to benefits.  Taylor instead merely adopts Dayton's
arguments (Br. 7) and goes on to argue that he is entitled to benefits
even though he invoked DOL's presumption by presenting blood-gas
studies, a method of invocation that was not available under HEW's
regulation.  Taylor's argument, in summary, is that he should be
deemed to have constructively invoked HEW's presumption since
blood-gas studies, like ventilatory test scores, show the presence of
a chronic respiratory or pulmonary impairment.  There is no merit to
this argument.  The evidence in Taylor's case showed non-qualifying
x-ray evidence and ventilatory study scores (90-113 Pet. App. 27a),
and his blood-gas study scores do not change that fact.  Since it is
undisputed that Taylor would not have qualified for benefits under
HEW's regulation, it should be undisputed that DOL's regulation is not
"more restrictive" as applied in his case.

   /6/ Like Dayton, Pauley repeatedly speaks of a "conclusive
presumption" in HEW's regulation or says that disability causation was
"conclusively presumed" (see Br. 15, 22, 40 n.25), even though nothing
in the regulation suggested that it established irrebuttable
presumptions.

   /7/ Pauley quotes from this report (89-1714 Pet. Br. 5) in support
of his contention that it is "a very difficult problem from a medical
standpoint" to determine the cause of disability, without noting that
he is relying on the minority views.

   /8/ Pauley's speculation that HEW decided to abolish the disability
causation inquiry based on a cost-benefit analysis is faulty even on
its own terms.  Determining the cause of a miner's disability is not
"virtually impossible," as Pauley repeatedly asserts (Br. 3, 6, 16,
28, 29) on the basis of a quote from an official in the Social
Security Administration.  Doctors can identify the cause of a miner's
lung impairment to a reasonable degree of medical probability, as they
do under state workers' compensation laws.  1972 Senate Hearings 166
(statement of Dr. Rankin);  see also Underhill v. Peabody Coal Co.,
687 F.2d 217, 223 (7th Cir. 1982) (allowing black lung rebuttal under
a "reasoned medical judgment" standard).  Where a disabled miner with
pneumoconiosis also suffers from a non-pulmonary disease, it is even
easier to determine the cause of the miner's disability.  To the
extent that identifying the cause of a disability is difficult, DOL's
regulation fully protects miners' interests by requiring the party
contesting entitlement to prove that the disability did not arise even
"in part" from coal mining.  20 C.F.R. 727.203(b)(3).  Pauley has
failed to contest the ALJ's finding that her husband's disability
arose from arthritis and paralysis from a stroke, and not in whole or
in part from pneumoconiosis.

   /9/ The fact that Congress in 1972 included a disability causation
provision in Section 411(c)(4) further undercuts Pauley's argument
that it was thought to be virtually impossible to determine the cause
of a miner's disability.

   /10/ The Conference Committee that adopted Section 402(f)(2) stated
that "all standards are to incorporate the presumptions" set out in
Section 411(c)." H.R. Conf. Rep. No. 864, 95th Cong., 2d Sess. 16
(1978).

   /11/ Pauley suggests (Br. 15-16) that her construction is supported
by the fact that no reported case has been located in which HEW denied
benefits in such circumstances.  Dayton similarly notes (Br. 32) that
no case held that HEW could not award black lung benefits to persons
who did not have black lung disease.  But it may be that no one
thought to pursue a claim for black lung benefits in such
circumstances.  That conclusion is supported by the fact that no one
challenged the validity of DOL's rebuttal provisions for nearly ten
years.  See Consolidation Coal Co. v. Smith, 837 F.2d 321, 323 & n.3
(8th Cir. 1988) (Benefits Review Board raised the issue sua sponte);
Sebben, 488 U.S. at 119 (the claimants conceded the validity of DOL's
rebuttal provisions).

   /12/ Clinchfield and Consolidation Coal suggest (Br. 28 n.34) that
HEW's presumption regulation would not have been particularly useful
if subsection (b)(2) included a disability causation inquiry.  That is
not so.  First, while HEW's manual is not clear on this point, HEW may
have shifted the burden of persuasion to the party contesting
eligibility with respect to the disability causation issue, even
though subsection (b)(2) is in the invocation portion of the
regulation.  See Manual Section IB6(d).  Second, under our reading,
the regulation creates a presumption that a miner presenting the
requisite x-ray or ventilatory study evidence suffers from a totally
disabling impairment, and in subsection (b)(2) authorizes the party
contesting eligibility to show that coal mine employment was not the
cause of the miner's total disability;  if the party contesting
eligibility cannot do so, then that party may attempt to rebut the
presumption under subsection (c) by showing that the miner is not, in
fact, totally disabled.  Under this reading of the regulation, a miner
may obtain its key benefit -- a presumption of total disability based
on medical evidence that merely shows an impairment.  See note 1,
supra.

   /13/ While agreeing with us that HEW's regulation allowed for
rebuttal by methods comparable to DOL's third and fourth methods,
Consolidation and Clinchfield Coal come to that conclusion somewhat
differently.  The coal companies join us in arguing that subsection
(b)(2) requires proof that the miner has pneumoconiosis.  But they
conclude (as did the Third Circuit) that HEW's regulation authorizes a
disability causation inquiry by tracing through the cross-references
in subsection (c).  The cross-referenced regulation provides that a
miner would be considered totally disabled if "pneumoconiosis prevents
him" from engaging in specified work.  20 C.F.R. 410.412(a)(1).  As
the coal companies and the Third Circuit state, that regulation thus
seems to incorporate a disability causation inquiry.

   /14/ DOL did not state whether HEW authorized additional forms of
rebuttal under subsection (b)(2), as its manual provides (Section
IB6(d)), or under subsection (c), as the cross-references in that
provision would allow.

   /15/ The claimants argue that DOL's interpretation of Section
402(f)(2) should receive no deference.  But the Secretary's
contemporaneous construction of the statute was that Congress had
authorized DOL's third and fourth rebuttal methods and HEW's
regulation did not foreclose them.  We believe this construction is
entitled to deference, and that such deference is not precluded by the
ambiguities in HEW's regulation.

   /16/ Pauley suggests (Br. 39) that "Congress elevated the HEW
interim provision to statutory status when it decreed in Section
402(f)(2) that the HEW interim provision set the statutory standard of
restrictiveness for the 'criteria' the Secretary of Labor could
apply." But that is not what Section 402(f)(2) says.  Moreover, Pauley
admits (Br. 44 n.28) that "a review of the legislative history reveals
a decided silence with respect to whether members of Congress were
aware or not that the HEW interim provision lacks a 'disability
causation' test." In other words, nothing shows that Congress thought
black lung benefits had to be awarded to a miner who was not totally
disabled due to pneumoconiosis.

   /17/ For example, the Trust Fund pays benefits where disability
"did not arise, at least in part, out of employment in a mine during a
period after December 31, 1969 when it was operated by such operator"
(30 U.S.C. 932(c)(1)), and where the responsible operator fails to
make payments (26 U.S.C. 9501(d)(1)).  If the responsible operator
fails to make payments, a lien on the operator's property is created
in favor of the government.  30 U.S.C. 934(b)(2).