PITTSTON COAL GROUP, ET AL., PETITIONERS V. JAMES SEBBEN, ET AL.
ANN MCLAUGHLIN, SECRETARY OF LABOR, ET AL., PETITIONERS V. JAMES
SEBBEN, ET AL., DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. CHARLIE BROYLES, ET
AL.

   No. 87-821, No. 87-827, No. 87-1095

   In the Supreme Court of the United States

   October Term, 1987

   On Writs Of Certiorari To The United States Courts Of Appeals For
The Fouth And Eighth Circuits

   Brief For The Federal Petitioners

   PARTIES TO THE PROCEEDING

   In addition to James Sebben (whose actual name, Seddon, has been
misspelled throughout this litigation), John Cossolotto, Bruno
Lenzini, and Charles Tonelli, on behalf of themselves and all others
similarly situated, brought suit in the United States District Court
for the Southern District of Iowa;  they are respondents in both No.
87-821 and No. 87-827.  They named as defendants the Secretary of
Labor (currently Ann McLaughlin, who replaced Dennis E. Whitfield, the
Deputy Secretary of Labor, and William E. Brock, III, the former
Secretary of Labor), the Department of Labor, and Steven Breeskin,
Deputy Commissioner of the Department's Division of Coal Mine Worker's
Compensation;  the defendants are petitioners in NO. 87-827.  Pittston
Coal Group, Barnes & Tucker Company, Island Creek Coal Company,
Consolidation Coal Company, Old Republic Insurance Comapny, and
Pennsylvania National Insurance Group intervened in the Eighth
Circuit;  they are petitioners in No. 87-821.

   In addition to the petitioner, the Director of the Department of
Labor's Office of Workers' Compensation Programs, and respondent
Charlie Broyles, Lisa Kay Colley is a respondent in No. 87-1095.

            TABLE OF CONTENTS
   Questions presented
   Parties to the proceeding
   Opinions below
   Jurisdiction
   Statutory and regulatory provisions involved
   Statement:
        1. Statutory and regulatory framework
               a. HEW's regulations
               b. Labor's regulations
        2. The merits issue
        3. The procedural issue
   Summary of argument
   Argument:
       I. The Department of Labor reasonably construed Section
          402(f)(2) to require that the medical criteria applied
           in adjudicating Part C claims not be more restrictive
           than the medical criteria applied in adjudicating Part
           B claims
           A. The structure and context of the statute support
              the Secretary's construction
           B. The legislative history of section 402(f)(2) supports
              the conclusion that "criteria" means medical criteria
              and not evidentiary and adjudicatory rules
           C. The Secretary's interpretation of Section 402(f)(2)
              is entitled to deference
       II. The Eighth Circuit erred in ordering the reopening of
           final, denied claims
           A. Mandamus relief is unavailable because members of
              the putative class were owed no clear nondiscretionary
              duty and failed to exhaust their statutory remedies
           B. Reconsideration of the claims is barred by re judicata
   Conclusion
   Appendix

   OPINIONS BELOW

   The opinion of the Eighth Circuit in Sebben (87-827 Pet. App.
1a-18a) is reported at 815 F.2d 475.  The opinion of the United States
District Court for the Southern District of Iowa (87-827 Pet. App.
19a-22a) is unreported.

   The opinion of the Fourth Circuit in Broyles (87-1095 Pet. App.
1a-6a) is reported at 824 F.2d 327.  The decisions of the Benefits
Review Board (87-1095 Pet. App. 7a-9a (Broyles) and 18a-21a (Colley))
are unreported, as are the decisions of the administrative law judges
(87-1095 Pet. App. 10a-17a (Broyles) and 22a-28a (Colley)).

   JURISDICTION

   The judgment of the Eighth Circuit in Sebben was entered on March
25, 1987.  The order denying the Secretary's petition for rehearing
was entered on June 25, 1987 (87-827 Pet. App. 23a).  The order
denying the intervenors' petition for rehearing was entered on July
24, 2987 (87-821 Pet. App. 18a).  On September 17, 1987, Justice
Blackmun extended the time for filing petitions for a writ of
certiorari to and including November 20, 1987.  Both the Secretary's
and the intervenors' petitions were filed on that date.  This Court
granted the petitions and consolidated them on February 22, 1988.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

   The judgement of the Fourth Circuit in Broyles was entered on July
31, 1987.  A petition for rehearing was denied on September 30, 1987
(87-1095 Pet. App. 29a-30a).  The petition for a writ of certiorari
was filed on December 29, 1987.  The Court granted the petition and
consolidated it with Nos. 87-821 and 87-827 on April 4, 1988.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

   STATUTORY AND REGULATORY PROVISIONS INVOLVED

   Section 402(f) of the Black Lung Benefits Act, 30 U.S.C. 902(f),
HEW's "interim" regulation, 20 C.F.R. 410.490, and Labor's "interim"
regulation, 20 C.F.R. 727.203, are reprinted in the appendix to this
brief (App., infra, 1a-8a).

   QUESTIONS PRESENTED

   1. Whether Section 402(f)(2) of the Black Lung Benefits Act, which
provides that the "criteria" applied to certain claims adjudicated by
the Secretary of Labor "shall not be more restrictive" than the
criteria applied by the Secretary of Health, Education, and Welfare
(HEW) to claims filed during an earlier period, requires that, in
addition to applying medical criteria no more restrictive than HEW's,
the Department of Labor also must apply evidentiary rules and
adjudicatory standards no more restrictive than HEW's.

   2. Whether the Eighth Circuit erred in holding that a writ of
mandamus should issue directing the Secretary of Labor to reopen
thousands of claims for black lung benefits that had been finally
denied before that court concluded that the Secretary had erroneously
construed Section 402(f)(2).

   STATEMENT

   1. Statutory and regulatory framework.  Under the Black Lung
Benefits Act, /1/ 30 U.S.C. (& Supp. III) 901 et seq., "(d)isability
benefits are payable to a miner if (a) he or she is totally disabled,
(b) the disability was caused, at least in part, by pneumoconiosis,
and (c) the disability arose out of coal mine employment." Mullins
Coal Co. v. Director, Office of Workers' Compensation Programs, No.
86-327 (Dec. 14, 1987), slip op. 5.  /2/ Claims for benefits are
adjudicated under two programs, depending on the date the claim was
filed.  Claims filed before July 1, 1973, under Part B of the Act,
were considered by the Department of Health, Education, and Welfare
(HEW), and benefits were paid from the general revenues of the United
States.  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. 902(c)) and individual coal mine operators bear
primary responsibility for paying benefits (30 U.S.C. 932(b)).  /3/

   a. HEW's regulations.  From its 1969 enactment until its 1978
amendment, the Black Lung Benefits Act provided that "the term 'total
disability' has the the meaning given it by regulations of the
Secretary of Health, Education, and Welfare." See 30 U.S.C. (1976 ed.)
902(f).  After HEW defined "total disability" as the inability to
engage in any substantial gainful activity (see 20 C.F.R. 410.402(b)
(1971)), Congress in 1972 provided that a miner should be considered
totally disabled whenever he is unable to perform work comparable to
his usual coal mine work.  30 U.S.C. 902(f)(1)(A).  Congress at that
time also liberalized the coverage of the program in several other
respects.  /4/ HEW thereafter promulgated an amended set of
regulations, known as its "permanent" regulations, which governed the
Part C program as well as the Part B program.  Under those
regulations, ventilatory and blood-gas studies and evidence of certain
heart abnormalities could justify a finding of total disability.  20
C.F.R. 410.424, 410.426(b) & Subpt. D App.  /5/ In addition to proving
that they were totally disabled, claimants also had to establish that
they had pneumoconiosis and that their disability arose out of their
coal mine employment.

   In 1972, at the same time that it promulgated its permanent
regulations, HEW promulgated an "interim" regulation applicable only
to Part B claims.  20 C.F.R. 410.490(b).  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 claimants.  Mullins Coal Co., slip op. 16-17;  20 C.F.R.
410.490(a).  It provided a rebuttable presumption that a claimant was
totally disabled due to pneumoconiosis where he (a) presented X-ray,
biopsy, or autopsy evidence establishing the existence of
pneumoconiosis (20 C.F.R. 410.490(b)(1)(i)) or, in the case of one
employed as a miner for at least ten years, /6/ presented ventilatory
study scores showing impairment (20 C.F.R. 410.490(b)(1)(ii)), and (b)
demonstrated that the impairment arose out of coal mine employment (20
C.F.R. 410.490(b)(2)).  The ventilatory study scores in the interim
regulation required claimants to show a much less severe degree of
impairment than was required under HEW's permanent regulations.
Compare 20 C.F.R. 410.490(b)(1)(ii) with 410.426(b).  With respect to
causation, while claimants presenting ventilatory study scores, but
not X-ray evidence, could establish the presumption only if they had
worked in coal mines for ten years, it was presumed that their
pneumoconiosis arose out of coal mining (20 C.F.R. 410.490(b)(3)).
Claimants presenting X-ray, biopsy, or autopsy evidence of
pneumoconiosis would be presumed to have shown causation if they had
worked in coal mines for ten years.  20 C.F.R. 410.416, 410.456,
410.490(b)(2).  Claimants presenting X-ray, biopsy, or autopsy
evidence who had not worked in coal mines for ten years could also
establish the presumption by proving causation in other ways (ibid.).
/7/

   The interim regulation specifically provided that, if the
presumption was invoked, it could be rebutted by evidence that the
miner was doing work comparable to his or her usual coal mine work or
was able to do so.  20 C.F.R. 410.490(c).  If a miner failed to invoke
the presumption, he nevertheless could establish that he qualified for
benefits under HEW's permanent regulations.  20 C.F.R. 410.490(e).
/8/

   b. Labor's regulations.  Prior to 1978, the Department of Labor, in
adjudicating Part C claims, applied HEW's permanent regulations (see
20 C.F.R. 718.2 (1976)), but not its interim presumption, which by its
terms applied only to Part B. Claims (20 C.F.R. 410.490(b)).  By
amendments enacted in 1978, Congress gave the Secretary of Labor
authority to issue regulations defining "total disability" under the
Part C program by directing the Secretary to "establish criteria for
all 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. 95;  30 U.S.C.
902(f)(1)(D).  In addition, Congress instructed the Secretary to
reopen claims that had been denied before the effective date of the
1978 amendments.  30 U.S.C. 945.  It provided in Section 402(f)(2), 30
U.S.C. 902(f)(2), that, in adjudicating the reopened claims and claims
filed before the promulgation of final Labor Department regulations,
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." Thus, Labor was to apply "criteria" no more restrictive
than those applied by HEW, including the criteria in its interim
regulation, to claims filed before it promulgated final regulations,
which were promulgated on April 1, 1980.

   The Secretary of Labor promulgated interim regulations in 1978 to
govern the claims Congress ordered reopened and those filed before
final regulations were promulgated.  The regulations included an
"interim presumption" of total disability from pneumoconiosis arising
from coal mine employment -- and thus of entitlement to benefits --
applicable in circumstances that are similar, but not identical, to
those set out in HEW's interim regulation.  20 C.F.R. 727.203.  It
provides, like HEW's interim regulation, that claimants may utilize
X-ray, biopsy, or autopsy evidence or ventilatory studies satisfying
medical criteria identical to those in HEW's interim regulation to
establish the presumption.  20 C.F.R. 727.203(a)(1) and (2).  It goes
be triggered by blood-gas studies, by 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
presumption of entitlement could be established under Labor's interim
regulation only by claimants who worked in coal mines for a least ten
years.  20 C.F.R. 727.203(a)(1).  Thus, claimants who worked in coal
mines for fewer than ten years and presented X-ray evidence showing
pneumoconiosis could not, as under HEW's interim regulation, gain the
benefit of the presumption of entitlement by relying on other evidence
to show causation.  In that event, they could not trigger the
presumption at all.  /9/

   Like HEW's interim regulation, Labor's interim regulation provided
that the presumption could be rebutted by proof that a claimant was
doing or was capable of doing his usual coal mine work or work
comparable to it.  20 C.F.R. 727.203(b)(1) and (2).  Labor's interim
regulation also provided that the presumption could be rebutted by
proof that a claimant's disability did not arise in whole or in part
out of coal mine employment or that the miner did not have
pneumoconiosis.  20 C.F.R. 727.203(b)(3) and (4).  /10/ Labor's
interim regulation also provided that anyone failing to qualfity for
the presumption of eligibility could seek to establish eligibility
under Labor's final regulations (20 C.F.R. 727.203(d)), which are set
forth at 20 C.F.R. Pt. 718.  Claims filed after April 1, 1980, are
adjudicated under those final regulations, which do not contain a
presumption of entitlement comparable to HEW's interim presumption or
Labor's interim presumption.

   2. The merits issue.  Charlie Broyles and Bill Colley filed claims
for black lung benefits under the Part C program before Labor's final
regulations took effect in 1980.  Both submitted X-rays showing the
presence of pneumoconiosis.  Because neither had ten years of coal
mine employment, neither could invoke the presumption of entitlement
under Labor's interim regulation.

   An administrative law judge determined that Broyles had worked for
five years as a coal miner from 1946 to 1952, after which he worked
over 20 years at other occupations involving exposure to dust (87-1095
Pet. App. 11a-12a).  Although the administrative law judge found it
unclear which occupation had caused Broyles' pneumoconiosis, he gave
Broyles "the benefit of the doubt" and concluded that coal mining had
caused it (id. at 16a).  The administrative law judge also assumed
that Broyles, who retired in 1976 following coronary bypass surgery
(id. at 14a-15a), was totally disabled.  However, relying on
physicians' reports, the administrative law judge denied Broyles'
claim because his disability was not due to pneumoconiosis, but
instead was caused by his heart condition (id. at 16a).  The Benefits
Review Board affirmed (id. at 7a-9a).

   The administrative law judge determined that Colley, who had
arthritis, chronic bronchitis, and had suffered a stroke in 1978
(87-1095 Pet. App. 26a, 27a), had worked in coal mines for no more
than nine and a half years between 1945 and 1962 (id. at 24a-25a).
The administrative law judge found it "questionable" whether the X-ray
Colley had submitted showed that he had pneumoconiosis (id. at 25a),
but denied the claim on the basis of physicians' reports supporting
the conclusion that Colley's pulmonary condition was not causally
related to his prior coal mine employment (id. at 28a).  The Benefits
Review Board Affirmed (id. at 18a-21a).

   The Fourth Circuit consolidated the two cases.  /11/ It reversed on
the ground that in each case the administrative law judge "erred in
failing to evaluate the claims under (HEW's interim regulation), 20
C.F.R. Section 410.490" (87-1095 Pet. App. 2a).  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), the court concluded that
Labor's interim presumption regulation is contrary to Section
402(f)(2)'s directive that the Secretary apply "criteria" that are not
more restrictive than the criteria applied by HEW in its interim
regulation regulation (87-1095 Pet. App. 5a).  /12/ The court found
Labor's interim regulation inconsistent with the statute because,
under HEW's interim regulation but not under Labor's interim
regulation, claimants such as Broyles and Colley, who submitted X-rays
showing pneumoconiosis, could invoke the presumption of entitlement to
benefits even if they had worked in coal mines for fewer than ten
years.  It rejected the Secretary's argument that Congress intended in
Section 402(f)(2) that the Department of Labor should apply medical
criteria no more restrictive than those applied by HEW to claims filed
before Labor's permanent regulations were in place, but that Congress
did not intend to require Labor to apply the same evidentiary
standards and adjudicatory rules applied by HEW (87-1095 Pet. App.
5a).  /13/ The court remanded for revaluation of Broyles' and Colley's
claims (id. at 6a).

   3. The procedural issue.  The Eighth Circuit's decision in Sebben
involves a mandamus action by four named plaintiffs on behalf of a
putative class of unsuccessful claimants.  The putative class members,
like Broyles and Colley, had submitted X-rays showing the presence of
pneumoconiosis but were denied the presumption of entitlement to
benefits under Labor's interim regulation because they had not worked
in coal mines for ten years (87-827 Pet. App. 18a).  /14/ The claims
of some of the members of the putative class were denied before the
1978 amendments were enacted, reopened in light of the 1978
amendments, and again denied.  Others filed claims after the 1978
amendments took effect but before the Secretary's final regulations
were promulgated in 1980.  The putative class members either failed to
seek judicial review of the final administrative denial of benefits.
The plaintiffs sought to compel the Secretary of Labor to reopen the
claims of the class members and reconsider them under the standard set
forth in Coughlan.  The district court denied the application for a
writ of mandamus without certifying a class (87-827 Pet. App.
19a-22a).

   The Eighth Circuit reversed (87-827 Pet. App. 1a-18a).  It
acknowledged that mandamus is warranted only where there has been a
"'patent violation of agency authority or manifest infringement of
substantial rights irremediable by the statutorily prescribed method
of review'" and the agency had "a clear nondiscretionary duty to act"
(id. at 4a (quoting Nader v. Volpe, 466 F.2d 261, 265-266 (D.C. Cir.
1972)).  With respect to members of the putative class whose claims
had been reopened and denied after the 1978 amendments, the court held
that the Secretary has a duty to reopen them again because "(e)ven if
review of those claims did occur, the Secretary did not do so under
the proper standard" (87-827 Pet. App. 12a).  As to claimants whose
claims were first denied after the 1978 amendments, the court held
that the Secretary "owes the same duty to these claimants to reopen
and consider their claims" (id. at 12a-13a).

   The Eighth Circuit rejected the argument that it should not order
the claims reopened because the claimants had failed to exhaust their
administrative remedies or seek review in a court of appeals in timely
fashion.  Without citation to any explicit legislative decision to
relax the statutory deadlines, the court noted that "Congress had the
authority to waive the limitation created by the deadlines" (87-827
Pet. App. 15a).  With respect to those claims that had been reopened
after the 1978 amendments and denied again, the court concluded that,
in ordering reopening in 1978, "Congress, by implication, waived the
thirty and sixty-day deadlines for appeals" (id. at 15a) and concluded
that "(t)he Secretary has yet to take properly 'into account" the 1977
amendments" (id. at 16a).  As to the later-filed claims, the court
concluded that "(i)t would * * * be contrary to congressional intent
to allow" those claims to be treated differently (ibid.).
Furthermore, the court stated, the 30-day and 60-day deadlines "become
largely unmeaningful for actions based on jurisdictional grants
outside of" the Black Lung Benefits Act, such as the mandamus statute
(id. at 17a).  It remanded the case for certification of a class whose
claims the Secretary would have to reopen (id. at 2a n.1, 18a).

                          SUMMARY OF ARGUMENT

   I. The Secretary of Labor reasonably concluded that Congress in
Section 402(f)(2) mandated the application of medical criteria no more
restrictive than those in HEW's interim regulation, but did not
require the Department of Labor to apply other aspects of HEW's
interim regulation.  Section 402(f)(2)'s requirement that Labor apply
no more restrictive "criteria" is set forth as part of the definition
of "total disability," and while medical evidence is plainly relevant
to that issue, a miner's years of service bear primarily on the
question of causation.  The structure of the statute therefore
suggests that the term "criteria" as used in defining "total
disability" means medical criteria only, and it was reasonable to
conclude that miners with fewer than ten years of coal mine experience
could be denied the opportunity to invoke a presumption of entitlement
to benefits.

   The legislative history also supports this conclusion.  It shows
that the language of Section 402(f)(2) was proposed in response to
testimony that the ventilatory study scores applied by Labor in
adjudicating Part C claims required a greater degree of impairment
than was required under Part B and that, as a result, the approval
rate was much lower under the Part C program.  The House reports make
clear that it intended to require Labor to apply medical criteria no
more restrictive than those applied by HEW.  The Senate, apparently
more impressed than the House by testimony that the discrepancy in
approval rates between the Part B and Part C programs was due to the
unwarranted laxness of the ventilatory study scores in HEW's interim
regulation, passed a bill giving the Secretary of Labor authority to
promulgate new medical criteria.  The Conference Committee
incorporated both approaches.  In Section 402(f)(1)(D), following the
Senate approach, it provided that the Secretary of Labor was to
"establish (new) criteria for all appropriate medical tests." In
Section 402(f)(2), which immediately follows Section 402(f)(1)(D), it
adopted the House approach pending promulgation of these new criteria
by providing that Labor was to apply "criteria" no more restrictive
than those in HEW's interim regulation to claims filed before the
final regulations were promulgated.  In light of this history of the
enactment of the language of Section 402(f)(2), the Secretary
reasonably construed the word "criteria" to be shorthand for the
phrase "criteria for all appropriate medical tests" in the proceeding
sentence.

   Moreover, it is especially unlikely that Congress intended to
provide a presumption of entitlement to benefits to miners with fewer
than ten years of coal mine experience since the evidence before
Congress showed that miners with fewer than ten years of coal mine
experience rarely contract black lung disease.  The Conference Report
stated that all regulatory presumptions were to include the statutory
presumption that pneumoconiosis resulted from coal mine employment
where a miner had worked ten years in coal mines, and that is what
labor's interim regulation provided.  Furthermore, the House Committee
approved Labor's interim regulation after reviewing it and noting that
the interim presumption could be established only by miners with ten
years' experience.

   In light of the statutory language and its legislative history, the
Secretary's construction of the term "criteria" in Section 402(f)(2)
is more plausible than that adopted by the Fourth Circuit.  The
Secretary's construction is at least a permissible construction, so
the Fourth Circuit erred by failing to defer to it.

   II. Assuming that the Secretary's construction of Section 402(f)(2)
is erroneous, the Eighth Circuit nevertheless erred in holding that a
writ of mandamus should issue ordering the reopening of claims that
has been finally denied.  Mandamus is warranted only where the
defendant owes the plaintiff a clear nondiscretionary duty.  Mandamus
is not warranted where the interpretation of statute is a prerequisite
to the establishment of the duty that is said to be owed, because, in
such a case, no clear duty is owed, and Section 402(f)(2) does not
plainly require the construction respondents favor.  In any event, the
Secretary has no duty to reopen the claims of the members of the
putative class.  The 1979 amendments required the reopening of certain
claims, but those claims were reopened;  the amendments did not
require any further reopening.

   Mandamus is also unavailable because members of the putative class
failed to appeal adverse decisions, and exhaustion of statutory
remedies is a prerequisite to mandamus relief.  Application of that
rule is particularly sensible here because, if members of the putative
class had raised their challenge to Section 402(f)(2) and pursued it
administratively, cases where the construction of the statute might
have made a difference would have been identified.  In addition, the
Eighth Circuit's reopening order flouts the statutory appeal
deadlines.

   The fact that members of the putative class failed to challenge the
denials of their claims in timely fashion also leads to the conclusion
that their claims are barred by res judicata.  Where, as here, the
administrative proceeding has the essential characteristics of a
judicial proceeding and the plaintiffs could have advanced a legal
argument in the administrative proceeding, they should be barred from
raising the claim in a subsequent proceeding.  Any other rule fails to
establish repose and leads to costly repetitive litigation, as this
case illustrates.

   ARGUMENT

   I. THE DEPARTMENT OF LABOR REASONABLY CONSTRUED SECTION 402(F)(2)
TO REQUIRE THAT THE MEDICAL CRITERIA APPLIED IN ADJUDICATING PART C
CLAIMS NOT BE MORE RESTRICTIVE THAN THE MEDICAL CRITERIA APPLIED IN
ADJUDICATING PART B CLAIMS

   A. The Structure and Context Of The Statute Support The Secretary's
Construction

   Although Section 402(f)(2) requires the Secretary of Labor to apply
"criteria" no more restrictive than those applied by HEW to claims
filed before the final regulations were promulgated, Congress did not
define the term "criteria," and the proper definition cannot be
discerned from the word alone.  /15/ The Secretary's construction --
that Congress intended Labor to apply medical criteria no more
restrictive than those in HEW's interim regulation to such claims, but
did not require Labor to allow claimants with fewer than ten years'
coal mine experience to establish a presumption of entitlement to
benefits -- is strongly supported by the structure and context of the
statute.

   The "no more restrictive criteria" requirement appears in Section
402(f), which is the provision of the Black Lung Benefits Act that
defines "total disability." Medical evidence, like vocational
evidence, is relevant to the question whether a miner is totally
disabled, since the Act defines total disability as the inability to
perform coal mine work or work requiring comparable abilities (Section
402(f)(1)(A)).  But evidence as to how long a claimant worked in coal
mines has only the most indirect bearing on the issue of total
disability, as distinct from whether a claimant's pneumoconiosis arose
from coal mine employment.  Congress, in amending the definition of
"total disability" to require the application of criteria no more
restrictive than those employed under HEW's interim regulation, cannot
without justification be assumed to have referred to criteria whose
main relevance is to the separate issue of causation.  If Congress had
intended to require Labor to apply HEW's interim regulation in its
entirety, it presumably would have amended the statutory presumption
provision, 30 U.S.C. 921(c)(4), to mandate the use of that provision.
The fact that it instead modified the definition of "total disability"
supports the conclusion that it was referring to medical criteria by
which that disability is to be judged, and not to adjudicatory and
evidentiary rules bearing on how the pneumoconiosis came about.

   B. The Legislative History Of Section 402(f)(2) Supports The
Conclusion That "Criteria" Means Medical Criteria And Not Evidentiary
And Adjudicatory Rules

   1. Congress's purpose in amending Section 402(f) in 1978 further
supports the Secretary's conclusion that Congress meant "criteria" in
Section 402(f)(2) to mean medical criteria and not to include
adjudicatory and evidentiary rules.  /16/ The members of the House of
Representatives who favored the 1978 amendment ultimately adopted as
Section 402(f)(2) were particularly concerned that the ventilatory
study scores applicable to Part C claims under HEW's permanent
regulations (20 C.F.R. 410.426(b)) were much stricter than the scores
applicable to Part B claims under HEW's interim regulation (20 C.F.R.
410.490(b)(1)(ii)).  The amendment had its genesis in 1974, after the
1972 amendments had taken effect, when the House held hearings and a
representative of the United Mine Workers complained that the approval
rate for claims filed under the Part C program was much lower than the
approval rate for claims filed under the Part B program.  Black Lung
Amendments of 1973;  Hearings on H.R. 3476 Before the General Subcomm.
on Labor of the House Comm. on Education and Labor, 93d Cong., 1st
Sess. 351 (hereinafter 1974 Hearings) (statement of Beford W. Bird).
The Mine Workers' representative explained that the low approval rate
under the Part C program was the result of the fact that the
"ventilatory test scores (in HEW's permanent regulations) are only
minimally different from the scores used to evaluate permanent
disability under the Socal Security disability program" (id. at 353).
He recommended that Congress enact "an explicit provision extending
the so-called "interim' medical criteria" (ibid. (emphasis added)).
The Director of the Appalachian Research and Defense Fund, a legal
services group that represents miners, agreed that "(t)he ventilatory
study standards are what makes (sic) the difference" (id. at 398
(statement of John Rosenberg)).  The Department of Labor's
respresentative, who was criticized by some members of the committee
because the medical standards applied in determining whether a miner
was disabled were stricter under Part C than part B (see 1974 Hearings
329 (statement of Chairman Perkins) and 399 (statement of Rep. Dent)),
noted that "we are only talking about one standard(,) the ventilatory
(standard)." Id. at 398 (statement of Nancy Synder).

   The House responded with bills amending the definition of total
disability to require HEW to adjudicate Part C claims under standards
no more restrictive than those applied to Part B claims.  See H.R.
3333, 94th Cong., 1st Sess. Section 3 (1975;  H.R. 2913, 94th Cong.,
1st Sess. Section 3 (1975);  H.R. 10760, 94th Cong. 1st Sess. Section
7(a) (1975).  The committee report to one of those bills explained
that such a requirement was necessary because "the Department of
Health, Education, and Welfare, exercising authority provided under
the current law, has literally saddled the Department of Labor with
rigid and difficult medical standards for measuring claimant
eligibility under part C of the program.  The so-called "permanent'
medical standards now in effect under part C are much more demanding
than the so-called 'interim' standards applied by HEW under part B of
the program." H.R. Rep. 94-770, 94th Cong., 1st Sess. 13-14 (1975)
(emphasis added).  The report stated that the House bill "would
require that standards no more restrictive than the 'interim' medical
standards shall be equally applicable to part C claims" (id. at 15
(emphasis added)).  These explanatory comments are identical to the
comments that accompanied the version of the bill intitally passed by
the House.  See H.R. Rep. 95-151, 95th Cong. 1st Sess. 14 (1977).
/17/

   Like the House, the Senate focused on the fact that HEW's interim
ventilatory study scores "are far less stringent" than the scores in
its permanent regulation.  S. Rep. 95-209, 95th Cong., 1st Sess. 13
(1977).  However, it ultimately determined not to require continued
application of HEW's interim medical criteria.  The Senate Report
Report noted HEW's assertions "that the interim standards do not
accurately determine actual disability, that they were used under part
B only to clear away the backlog of claims arising from the 1972
amendments, and that the permanent standards more accurately identify
disabling respiratory and pulmonary functions in coal miners" (ibid.).
 The report also noted that the United Mine Workers considered even
HEW's interim ventilatory study scores too stringent (ibid.).  The
Senate concluded that it was "not qualfified to assess the
appropriateness of medical tests standards to be used to determine
disability in coal miners" (ibid.) and the bill it passed gave the
Secretary of Labor authority to define the term "total disability"
without reference to previously applied criteria (id. at 34-35).

   The Conference Committee reconciled the differing approaches of the
House and Senate bills by adopting the Senate approach on a permanent
basis and the House approach pending promulgation of Labor's
regulations.  H.R. Cong. Rep. 95-864, 95th Cong., 2d Sess. 16 (1978).
Congress resolved the controversy over whether the ventilatory study
scores used to adjudicate Part C claims were too strict or those used
to adjudicate part B claims were too lax by directing the Secretary of
Labor in Section 402(f)(1)(D) to consult with the Director of the
National Institute for Occupational Safety and Health and "establish
criteria for all appropriate medical tests * * * which accurately
reflect total disability in coal miners" (emphasis added)).  The
statute's next section, Section 402(f)(2), directed the Secretary of
Labor to use the "criteria" in HEW's interim regulation in
adjudicating claims filed before labor's final regulations took
effect.  In light of that placement and the history of the amendment,
the Secretary of Labor reasonably concluded that "criteria" in Section
402(f)(2) is shorthand for the phrase used in the preceding sentence,
"criteria for all appropriate medical tests." See Strike v. Director,
Office of Workers' Compensation Programs, 817 F.2d 295, 401 (7th Cir.
1987).  /18/

   2. Congress therefore gave substantial attention to the problem of
the medical standards to be used in determing whether a claimant was
totally disabled.  There is, on the other hand, no evidence in the
language of the statute or its legislative history indicating that
Congress intended to require the use of the adjudicatory and
evidentiary rules of HEW's interim regulation until Labor's final
regulation were promulgated.  In particular, there is no evidence that
Congress intended to preserve the ability of miners with fewer than
ten years' experience to establish the presumption of entitlement to
black lung benefits contained in HEW's interim regulation.  To the
contrary, as the Seventh Circuit noted in Strike (817 f.2d at 403-404
(emphasis added)):  "The only reference to the use of presumptions in
the conference report stated that "(t)he conferees also intend that
all standards are to incorporate the presumptions contained in section
411(c) of the Act (30 U.S.C. Section 921(c)).' H.R. Conf. Rep. No.
864, 95th Cong., 2d Sess. 16 * * *.  That Section creates a rebuttable
presumption that pneumoconiosis arose out of coal mine employment
'(i)f a miner who is suffering from pneumoconiosis was employed for
ten years or more in one or more coal mines." 30 U.S.C. Section
921(c)(1)." It is precisely that requirement of ten years' coal mining
experience that was "expressly incorporate(d)" (817 F.2d at 404) into
the Secretary of Labor's interim regulation.

   Moreover, the summary of medical knowledge on coal worker's
pneumoconiosis appended to the final House report concluded that there
was broad agreement that "(t)he probability that coal miners will
develop black lung increases regularly after about ten years of
working underground." H.R. Rep. 95-151, supra, at 30.  It added that
the study "with the most carefully selected samples of miners" showed
that "'(t)here was little pneumoconiosis until miners had worked at
least eleven years in the mines'" (ibid. (citation omitted)).  In view
of that recognition by the House, it would be surprising if Congress
simultaneously acted to mandate the use of a presumption of
entitlement to black lung benefits for miners with fewer than ten
years' experience.  /19/

   Furthermore, post-enactment legislative history demonstrates that
the Congress that adopted Section 402(f)(2) was not concerned with the
adjudicatory and evidentiary rules used by HEW.  Shortly after the
1978 amendments were enacted, the members of the House Committee
reviewed and commented on Labor's interim regulation before it was
adopted in final form.  See Strike, 817 F.2d at 404;  Halon, 713 F.2d
at 30 (Weis, J., dissenting).  The committee stated that it "strongly
supports the re-promulgation of the interim standards, as found in
Section 727.203(a)" (87-821 Pet. App. 44).  It expressly recognized
that ten years of coal mine employment was required to invoke the
presumption in that section (id. at 46a) and never hinted that that
requirement violated the statute.  These comments are entitled to
considerable weight since they reflect the contemporaneous view of the
authors of the legislation.  North Haven Board of Education v. Bell
456 U.S. 512, 526-527, 533-534 (1982);  Talley v. Mathews, 550 F.2d
911, 920 (4th Cir. 1977)).  They further confirm the correctness of
Labor's interpretation.  See Consolidated Rail Corp. v. Darrone, 465
U.S. 624, 634 (1984).

   Finally, it has been contended that Labor's interim regulation is
also invalid in that it authorizes rebuttal by two methods not
explicitly set forth in HEW's interim regulation, which explicitly
allows rebuttal only on the ground that the claimant is doing or is
capable of doing his usual coal mine work.  20 C.F.R. 410.490(c).  See
page 9, supra.  This issue is pending in the Sixth Circuit in
Youghiogheny & Ohio Coal Co. v. Miliken, No. 88-3213, and Grant v.
Director, Office of Workers' Compensation Programs, No. 87-3674;  see
also Sulyma v. Director, Office of Workers' Compensation Programs, 827
F.2d 922, 924 (3d Cir. 1987).  /20/ If HEW's interim regulation really
confines rebuttal evidence to that which it specifically authorizes,
and if Section 402(f)(2) requires Labor to apply the adjudicatory and
evidentiary rules embodied in HEW's interim regulation, Labor's
inclusion of additional rebuttal methods does, indeed, make its
regulation "more restrictive" than HEW's and thus is contrary to the
statute.  /21/ We submit that Congress could not have intended such a
result, and that this fact gives further support to the Secretary's
interpretation of the statute.

   Specifically, such an argument suggests that Labor's interim
regulation is invalid insofar as 20 C.F.R. 727.203(b)(3) and (4)
authorize rebuttal by showing that the claimant's disability did not
arise out of coal mine employment or is not due to pneumoconiosis.
However, Congress enacted the Black Lung Benefits Act to provide
benefits to a coal miner "if (a) he or she is totally disabled, (b)
the disability was caused, at least in part, by pneumoconiosis, and
(c) the disability arose out of coal mine employment" (Mullins Coal
Co., slip op. 5).  To deny coal mine operators the ability to prove
that a claimant does not have pneumoconiosis or that his disability
did not arise out of coal mine employment would therefore appear to be
irrational and perhaps even suspect on due process grounds.  Cf. Usery
v. Turner Elkhorn Mining Co., 428 U.S. 1, 34-37 (1976) (construing
Section 411(c)(4) not to limit the evidence a coal mine operator may
present on rebuttal, thus avoiding a constitutional challenge);
Mullins Coal Co., slip op. 22 n.32.  It would also appear to be
contrary to the statutory command that "all relevant evidence shall be
considered." 30 U.S.C. 923(b);  Mullins Coal Co., slip op. 13.  To
avoid these problems, it is sensible to construe the reference to
"criteria" in Section 402(f)(2) as encompassing medical standards, but
not adjudicatory or evidentiary rules.  /22/

   C. The Secretary's Interpretation Of Section 402(f)(2) Is Entitled
To Deference

   The Department of labor's construction of "criteria" in Section
402(f)(2) as referring to medical criteria, but excluding evidentiary
and adjudicatory rules is more consistent with the language of the
statute and its legislative history than the alternative
interpretation the Fourth Circuit adopted.  In addition, Labor's
interpretation in its 1978 regulation of a term added in the 1978
amendments represents "a contemporanious construction of a statute by
the men charged with the responsibility of setting its machinery in
motion, of making the parts work efficiently and smoothly while they
are yet untried and new." Udall v. Tallman, 380 U.S. 1, 16 (1965)
(citation omitted);  see also Morrison-Knudsen Contruction Co. v.
Director, Office of Workers' Compensation Programs, 461 U.S. 624, 635
(1983).  And where "'the statute is silent or ambiguous with respect
to the specific issue, the question for the court is whether the
agency's answer is based on a permissible construction of the
statute.'" NLRB v. United Food Workers Union, Local 23, No. 86-594
(Dec. 14, 1987), slip op. 10 (quoting Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)).  Since
Labor's contemporaneous construction of Section 402(f)(2) is
reasonable, that construction is entitled to deference.

   II. THE EIGHTH CIRCUIT ERRED IN ORDERING THE REOPENING OF FINAL,
DENIED CLAIMS

   If this Court holds that the Secretary of Labor permissibly
construed Section 402(f)(2), then the Eighth Circuit plainly erred by
ordering the reopening of the putative class members' claims.
However, as explained below, assuming arguendo that Labor erroneously
interpreted Section 402(f)(2), the Eighth Circuit nevertheless erred
in ordering the reopening of thousands of claims that had been finally
denied.  And that error, if uncorrected, will have serious
consequences on the system by which black lung claims are presently
resolved.  As explained in our petition for a writ of certiorari
(87-827 Pet. 10-12), approximately 94,000 claims, most of which were
finally denied more than six years ago, will have to be reopened if
the Eighth Circuit's decision is affirmed and a nationwide class is
certified.  Since administrative law judges currently issue about
10,000 decisions each year in black lung cases, such a massive
reopening effort would very likely create a significant backlog in a
system that is already severly backlogged.  See Delays in Processing
and Adjudicating Black Lung Claims:  hearing Before a Subcomm. of the
House Comm. on Government Operations, 99th Cong., 1st Sess. (1985)
(hereinafter 1985 Hearing);  Report to the Honorable Donald J. Pease,
House of Representatives, by the General Accounting Office,
Adjudication of Black Lung Claims by Labor's Office of Administative
Law Judges and Benefits Review Board (1984) (reprinted in the 1985
Hearing 37).

   A. Manadamus Relief Is Unavailable Because Members Of The Putative
Class Were Owed No Clear Nondiscretionary Duty And Failed To Exhaust
Their Statutory Remedies

   1. "This Court repeatedly has observed that mandamus is an
extraordinary remedy, to be reserved for extraordinary situations."
Gulfstream Aerospace Corp. v. Mayacamas Corp., No. 86-1329 (Mar. 22,
1988), slip op. 17-18, citing Kerr v. United States District Court,
426 U.S. 394, 402 (1976).  As codified at 28 U.S.C. 1361, /23/
mandamus is warranted " only if the defendant owes (the plaintiff) a
clear nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 616
(1984).  See also Gulfstream Aerospace, slip op. 18;  Kerr, 426 U.S.
at 403.  The Secretary of Labor did not breach any clear
nondiscretionary duty owed to members of the putative class.

   The Department of labor followed the directive of Section 402(f)(2)
and considered (in some cases, reconsidered), under its interim
regulation, claims filed before the final regulations were
promulgated.  The Eighth Circuit found a breach of a clear duty
because it concluded that the interim regulation conflicted with the
statute.  But, even assuming that the interim regulation is
inconsistent with Section 402(f)(2), mandamus is not warranted because
where the existence of a duty "depends upon a statute or statutes the
construction or application of which is not free from doubt, it is
regarded as involving the character of judgment or discretion which
cannot be controlled by mandamus." Wilbur v. United States ex rel.
Kadrie, 281 U.S. 206, 219 (1930).  Otherwise stated, "the mandamus
remedy is only available 'under exceptional circumstances of clear
illegality.  When the performance of official duty calls for a
construction of governing law, the (federal) officer's interpretation
will not be disturbed by a writ of mandamus unless it is clearly wrong
and his official action is arbitrary and capricious.'" Homewood
Professional Care Center, Ltd. v. Heckler, 764 F.2d 1242, 1251 (7th
Cir. 1985) (emphasis in original) (quoting Americana Healthcare Corp.
v. Schweiker, 688 F.2d 1072, 1084 (7th Cir. 1982), cert. denied, 459
1202 (1983)).  See also Maczko v. Joyce, 814 F.2d 308, 310 (6th Cir.
1987) ("when a duty is disputed or subject to various interpretations
* * * the duty is not 'owed' in that the obligation to do a particular
act cannot be said to be clear, peremptory, defined or ministerial"),
cert. denied, No. 86-2020 (Oct. 5, 1987).  In light of the conflict in
the circuits on the merits issue (and the dissenting opinions in two
of the cases where the courts held that the Secretary's interim
regulation conflicts with the statute), it can hardly be argued that
the Secretary's construction is so clearly wrong as to warrant
mandamus.

   Respondents attempt to avoid the "clear illegality" requirement by
suggesting that it no longer applies when a court of appeals must
construe a statute to decide whether a clear legal duty exists.  /24/
Under their theory, a court may construe a statute the interpretation
of which is in doubt and, if it concludes that the statute, as
construed, creates a duty, then such a duty clearly exists.  See,
e.g., Government of Virgin Island v. Douglas, 812 F.2d 822, 832 n.10
(3d Cir. 1987);  13th Regional Corp. v. United States Dep't of
Interior, 654 F.2d 758, 760 (D.C. Cir. 1980).  We submit that mandamus
cannot be so justified.  Even if it could, however, such a therory
would not be applicable here because nothing in the statute compels
the Secretary to reopen their claims now.  To support the action it
took, the Eighth Circuit not only had to conclude (wrongly in our
view) that the statute plainly means what respondents say it means,
but also that the statute plainly requires the Secretary to reopen
(and, in some cases, re-reopen) claims that had been finally denied.
The statute directed the Secretary to reopen some claims, and they
were reopended.  Nothing in the statute requires the Secretary to
reopen those claims again, or to reopen the other claims that were
first denied under Labor's interim regulation, and the Secretary
accordingly has not duty, much less a clear non-discretionary duty, to
do so.

   2. In addition, mandamus "is intended to provide a remedy for a
plaintiff only if he has exhausted all other avenues of relief."
Heckler v. Ringer, 466 U.S. at 616.  Mandamus is plainly unwarranted
here because members of the putative class failed to exhaust the
statutory remedies that were open to them and, if pursued, might have
provided the relief they seek.

   The Black Lung Benefits Act, which incorporates adjudicatory
provisions of the Longshore and Harbor Workers' Compensation Act (see
30 U.S.C. (& Supp. III 932(a)), provides a comprehensive review scheme
that allows a claimant a full opportunity to contest the validity of
regulations such as the interim presumption at issue here.  Claims for
benefits are presented to a deputy commissioner in the Department of
Labor's Office of Workers' Compensation Programs, who is responslbile
for developing evidence, notifying responsible coal mine operators of
potential liability, defining contested issues, and making an initial
determination on eligibility.  See 20 C.F.R. 725.351(a),
725.410-725.422.  Any party who disagrees with the deputy
commissioner's proposed resolution of the issues may obtain a hearing
before an administrative law judge (ALJ) by requesting one within 30
days of the deputy's decision.  20 C.F.R. 725.419.  After the ALJ
rules, any party may seek review of that decision by the Benefits
Review Board (20 C.F.R. 725.481), which "fulfill(s) the review
function previously performed by district courts" (Gibas v. Saginaw
Mining Co., 748 F.2d 1112, 1118 (6th Cir. 1984), cert. denied, 471
U.S. 1116 (1985)), by filing a petition for review within 30 days of
the ALJ's decision.  30 U.S.C. (& Supp. III) 932(a) (incorporating 33
U.S.C. 921(a));  20 C.F.R. 725.479.  The Board has asserted, with
court approval, that it has authority to invalidate regulations that
it finds inconsistent with the Black Lung Benefits Act.  Gibas;
Carozza v. United States Steel Corp., 727 F.2d 74 (3d Cir. 1984);
McCluskey v. Zeigler Coal Co., 2 B.L.R. 1-1248 (Ben. Rev. Bd. 1981).
/25/ Any party may petition the appropriate court of appeals for
review of the board's decision for legal error within 60 days.  30
U.S.C. (& Supp. III) 932(a) (incorporating 33 U.S.C. 921(c));  20
C.F.R. 725.482.

   The members of the putative class have in common a failure to
timely pursue the remedies statutorily available to them to challenge
the denial of their claims.  Some failed to challenge adverse
decisions by a deputy commissioner, others failed to seek review of an
adverse ALJ decision, and others failed to appeal adverse Benefits
Review Board decisions to the court of appeals.  See 87-827 Pet. App.
4a-5a.  There is no question that the relief they now seek could have
been ordered, had they pursued their claims.  The claimants in Halon,
Coughlan, Kyle, and Broyles obtained that relief, and the putative
class respondents have suggested no reason why they failed to pursue
their claims.  Accordingly, there is no reason why the requirement for
mandamus relief that a plaintiff "exhaust() all other avenues of
relief" (Heckler v. Ringer, 466 U.S. at 616) should be waived.  /26/

   There are substantial practical reasons for requiring exhaustion of
the statutory remedies.  See generally McKart v. United States, U.S.
185, 193-195 (1969).  If putative class members had challenged Labor's
construction of Section 402(f)(2) in a timely manner, the agency could
have addressed it in indivdual cases and at least identified those
cases where the interpretation of Section 402(f)(2) made a difference
in the outcome.  As matters now stand, it is not possible to determine
which claimants might have been adversely affected by Labor's
construction.  Moreover, the Eighth Circuit's decision eviscerates the
deadlines established for appealing denials of black lung benefits
claims, which have ben held to be jurisdictional.  See, e.g., Bolling
v. Director, Officer of Workers' Compensation Programs, 823 F.2d 165
(6th Cir. 1987);  Butcher v. Big Mountain Coal, Inc., 802 F.2d 1506
(4th Cir. 1986);  and cases cited at 87-827 Pet. App. 17a n.13.
Indeed, the court of appeals acknowledged that, in its view, those
deadlines were "largely unmeaningful" (id. at 17a).

   B. Reconsideration Of The Claims Is Barred By Res Judicata

   In addition to being barred from seeking mandamus relief because
they failed to pursue the avenue of relief available to them under the
Black Lung Benefits Act, the putative class members are barred from
attempting to relitigate their claims now by res judicata, because
they failed to challenge the denials of their claims within the time
limits Congress established.  It is well settled that a final judgment
of a court on the merit of an action "precludes the parties or their
privies from relitigating issues that were or could have been raised
in that action." Federated Department Stores, Inc. v. Moitie, 452 U.S.
394, 398 (1981).  Relitigation is barred even if the final, unappealed
judgment was "wrong or rested on a legal principle subsequently
overruled in another case" (ibid.).  Similarly, under Section 83 of
the Restatement (Second) of Judgments (1982), "a valid and final
(administrative) adjudicative determination has the same effects under
the rules of res judicata, subject to the same exceptions and
qualifications, as a judgment of a court."

   This Court has held that the unreviewed factfindings of state and
federal administrative agencies are entitled to preclusive effect.
University of Tennessee v. Elliott, No. 85-588 (July 7, 1986), slip
op. 10;  United States v. Utah Construction & Mining Co., 384 U.S.
394, 421-422 (1966).  The Court has also stated more broadly that res
judicata would bar the relitigation of a "claim" that was the subject
of an administrative determination.  Commissioner v. Sunnen, 333 U.S.
591, 598 (1948).  Although this Court has not held that an unreviewed
administrative judgment bars raised but was not in the administrative
action or on appeal (see 4 K. Davis, Administrative Law Treatise 49
(1983)), it has recognized the principle set forth in the Restatement
of Judgments that the preclusive effect of an administrative decision
is largely determined by whether the administrative forum has "'the
essential procedural characteristics of a court." University of
Tennessee, slip op. 9 n.6 (quoting comments to Section 83 of the
Restatement (Second) of Judgments).

   The Restatement rule that parties are precluded from bringing
actions raising legal issues that they could have raised in a prior
administrative proceeding where the administrative proceeding had the
essential characteristics of a judicial proceeding should be applied
here.  It is clear that black lung benefits claims are adjudicated in
adversarial, court-like proceedings.  Claimants (and operators) have
the right to counsel (20 C.F.R. 725.362), may develop evidence and
engage in discovery (20 C.F.R. 725.450-725.457), and receive written
decisions with findings of fact and conclusions of law (20 C.F.R.
725.418(b), 725.477(b)).  Review by the Benefits Review Board and then
by a court of appeals is available after an ALJ decision.  30 U.S.C.
(& Supp. III) 932(a) (incorporating 333 U.S.C. 921)).  As noted (page
32, supra), the board considers itself free to hold that Labor
Department regulations conflict with the statute and, of course, a
court of appeals has authority to reverse a benefit decision on the
basis that the standards applied in the administrative proceeding were
contrary to those required by the statute.  If a party fails to seek
timely review of a decision by a deputy commissioner, an
administrative law judge, or the Benefits Review Board, the unreviewed
decision becomes final.  /27/

   Barring the putative class members from reviving their claims also
makes sense.  Res judicata "'is not a mere matter of practice or
procedure inherited from a more technical time than ours.  It is a
rule of fundamental and substantial justice, "of public policy and of
private peace," which should be cordially regarded and enforced by the
courts.'" Federated Department Stores, 452 U.S. at 401 (citations
omitted).  Res judicata establishes "certainty in legal relations"
(Sunnen, 333 U.S. at 597).  There is no repose if courts are able to
order the reopening of closed cases any time they believe an
administrative adjudicator has misconstrued a directive in the
governing statute.  /28/

   In addition, the interests res judicata serves in "avoiding the
cost and vexation of repetitive litigation" (University of Tennessee,
slip op. 9) especially support its application here.  The costs of
reopening thousands of claims would be significant.  Since the claims
of putative class members were denied at least three years ago, and
many of them long before that, it would be difficult to retrieve their
files and locate members of the putative class.  In addition, members
of Congress and the Department of Labor viewed the backlog in
adjudicating black lung benefits claims as unacceptable when pending
claims numbered about 21,000 before administrative law judges and
5,687 before the Benefits Review Board.  1985 Hearing, 10 (statement
of Sen. Rockefeller);  34 (statement of Rep. Rahall);  126-127
(statement of Nahum Litt, Chief of the Department of Labor's Office of
Administrative Law Judges).  The result of this backlog was a delay of
three and one-half to seven years for claimants to reveive decisions
on their claims (id. at 10 (statement of Sen. Rockefeller)).  It takes
little imagination to perceive the drastic impact of the Eighth
Circuit's decision, which could require the reexamination of 94,000
claims.  Cf. Morrison-Knudsen Construction Co. v. Director, Office of
Workers' Compensation Programs, 461 U.S. 624, 636-637 (1983)
(interpreting Longshore and Harbor Workers' Compensation Act to permit
significant increase in number of the challenges in administrative
process would undermine the statutory goal of providing prompt
compensation to injured workers and their survivors.  /29/

   The putative class members are not situated differently from the
respondents in Federated Department Stores in any significant manner.
In that case, several parties filed actions in Federal district court,
which were all dismissed.  Some of the parties appealed, while others
did not.  While the appealed cases were pending, an intervening
decision made clear that the district court had erroneously dismissed
the actions and the appealed cases were accordingly remanded.  The
nonappealing parties then refiled essentially identical actions in
order to obtain the benefit of the intervening decision, but this
Court held that res judicata barred their claims.  The putative class
members, like the respondents in Federated Department Stroes, failed
to appeal earlier adjudications and this suit is their attempt to
obtain the benefit of the favorable intervening decisions of the
courts of appeals other than the Seventh Circuit.  Like the
nonappealing parties in Federated Department Stores, their attempt
should be barred by res judicata.  /30/

   CONCLUSION

   The judgments of the courts of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   DONALD B. AYER

      Deputy Solicitor General

   CHRISTOPHER J. WRIGHT

      Assistant to the Solicitor General

   GEORGE R. SALEM

      Solicitor of Labor

   ALLEN H. FELDMAN

      Associate Solicitor

   CHARLES I. HADDEN

      Deputy Associate Solicitor

   EDWARD D. SIEGER

      Attorney Department of Labor

   MAY 1988

   /1/ Title IV of the Federal Coal Mine Health and Safety Act of
1969, Pub. L. No. 91-173, 83 Stat. 792, was amended by and became
known as the Black Lung Benefits Act in 1972.  See Pub. L. No. 92-303,
86 Stat. 150, 30 U.S.C. (& Supp. III) 901 et seq.  It subsequently was
amended by the Black Lung Benefits Revenue Act of 1977, Pub. L. No.
95-227, 92 Stat. 11, the Black Lung Benefits Reform Act of 1977, Pub.
L. No. 95-239, 92 Stat. 95, the Black Lung Benefits Admendments of
1981, Pub. L. No. 97-119, 95 Stat. 1643, the Black Lung Benefits
Revenue Act of 1981, Pub. L. No. 97-119, 95 Stat. 1635, and the
Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No.
99-272, Section 13203(a) and (d), 100 Stat. 312, 313.

   /2/ Pneumoconiosis is a lung disease caused by exposure to various
types of dust, such as coal mine dust and asbestos.  See Lopatto, The
Federal Black Lung Program:  A 1983 Primer, 85 W. Va. L. Rev. 677, 679
& n.13 (1983).  When caused by coal mine dust, it is known as black
lung diesease.  The statute (30 U.S.C. 902(b)) and the regulations (20
C.F.R. 410.401(b), 727.202, 718.201) 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 soley to the disease, treating
the question of causation as distinct, as did this Court in Mullins
Coal Co.

   /3/ In certain cases, the Black Lung Disability Trust fund, which
the coal mining industry finances through an excise tax on coal and
the Director of the Office of Workers' Compensation Programs
administers, pays Part C benefits.  See 30 U.S.C. 932(i), 934;  26
U.S.C. 412(a), 9501.

   /4/ Among other changes, Congress directed that benefits shoud not
be denied solely on the basis of negative X-ray.  30 U.S.C. 923(b).
It further provided that a miner should be presumed to be entitled to
benefits, despite an X-ray that was negative for complicated
pneumoconiosis, if he had worked in coal mines for 15 years and other
medical evidence demonstrated that the miner had a totally disabling
pulmonary impairment.  30 U.S.C. 921(c)(4).  Congress repealed that
presumption in 1981.  Pub. L. 97-119, Section 202(b)(1), 95 Stat.
1643.

   /5/ Ventilatory studies, which measure the ability of the lungs to
move air in and out, may establish the presence of a respiratory or
pulmonary disease that may or may not be pneumoconiosis.  Blood-gas
studies demonstrate the presence of an impairment in the transfer of
oxygen from the lungs to the blood.  See Mullins Coal Co., slip op. 5;
 Lapp, A Lawyer's Medical Guide to Black Lung Litigation, 83 W. Va. L.
Rev. 721, 737-743 (1981).

   /6/ HEW's interim regulation is somewhat unclear as to how long a
claimant had to work in coal mines to establish the interim
presumption by means of ventilatory studies.  In one part it requires
15 years of coal mine employment (20 C.F.R. 410.490(b)(1)(ii)), but
later apparently requires only ten years of coal mine employment (20
C.F.R. 410.490(b)(3)).

   /7/ While the regulation did not specifically address how a miner
with fewer then ten years of work in coal mines could prove that his
pneumoconiosis arose from coal mine employment, a claimant could
establish causation by showing that exposure to lung irritants other
than coal mine dust was not the likely cause of his pneumoconiosis.
HEW required claimants with five to nine years of coal mine employment
to show that they had fewer than ten years of work in another job
involving exposure to dust hazards.  Claimants with fewer than five
years of coal mine employment had to show that the disease arose
within five years of that employment.  See Report of the Comptroller
General of the United States, Examination of Allegations Concerning
Administration of the Black Lung Benefits Program 3 (1976).

   /8/ For example, a claimant who worked fewer than ten years in coal
mines and did not have X-ray evidence of lung damage, but did have a
ventilatory study score showing a significant pulmonary disability,
would not qualify under HEW's interim presumption, but might qualify
under HEW's permanent regulations.  See 20 C.F.R. 410.414, 410.426(b).

   /9/ Miners with fewer than ten years' experience in coal mines
could, however, qualify for benefits by proving, apart from an
presumption, that they were totally disabled as a result of
pneumoconiosis arising out of coal mine employment.  The Benefits
Review Board does not apply the rules HEW applied in cases involving
miners with fewer than ten years' experience (see note 7, supra), but
instead has held that competent medical advice is sufficient to prove
causation regardless of how many years a claimant worked in coal mines
in cases where multiple causes are possible.  See Collura v. Director,
Office of Workers' Compensation Programs, 6 B.L.R. 1-100, 1-103
(1983), aff'd in part, petition dismissed without published opinion,
738 F.2d 421 (3d Cir. 1984).  It is also that the position of the
Director of the Office of Workers' Compensation Programs that lay
testimony is sufficient to prove causation from coal mine employment
in cases where the evidence does not suggest other causes of the
disease.

   #FN10

   /10/ Labor construed its interim presumption to shift the burden of
persuasion, not merely the burden of production.  Mullins Coal Co.,
slip op. 7 n.12.  It is not clear whether HEW's interim regulation
shifted the burden of persuasion.  other presumptions in the Black
Lung Benefits Act have been construed as shifting only the burden of
production.  Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 27
(1976);  Prokes v. Mathews, 559 F.2d 1057, 1060 (6th Cir 1977);  but
see Alabama By-Products Corp. v. Killingsworth, 733 F.2d 1511,
1514-1515 (11th Cir. 1984).

   /11/ Lisa Kay Colley was substituted as claimant for her father,
who died prior to the court of appeals' decision.

   /12/ In a divided opinion in Kyle v. Director, Office of Workers'
Compensation Programs, 819 F.2d 139 (1987), petition for cert.
pending, No. 87-1045, the Sixth Circuit also followed Halon and
Coughlan.

   /13/ In so concluding, the Fourth Circuit did not refer to the
decision of the Seventh Circuit in Strike v. Director, Office of
Workers' Compensation Programs, 817 F.2d 395, 400 (1987), which
expressly rejected the holdings in Halon and Coughlan.  The Seventh
Circuit found "criteria," as used in Section 402(f)(2), ambiguous,
noting that the final sentence of the immediately preceding subsection
specifically refers to "'criteria for all appropriate medical tests *
* * which accurately reflect total disability in coal miners'" (817
F.2d at 401 (citation omitted)).  Given the ambiguity, the court
examined the legislative history of the provision and concluded that
the Department's interpretation is consistent with the intent of
Congress (id. at 402-404).  Judge Weis, dissenting in Halon, had
reached the same conclusion.

   /14 The class is limited to those who submitted X-ray evidence, and
does not include those seeking to trigger the presumption by relying
on autopsy or biopsy evidence.  87-827 Pet. App. 18a.

   /15/ "Criteria" is defined as "a standard on which a judgment or
decision may be based" (Webster's New Collegiate Dictionary 307
(1983)) and its meaning varies according to what is to be judged or
decided.  The Sixth Circuit in Kyle, which held that Labor's
interpretations" (819 F.2d at 142).  Similarly, in Strike, the Seventh
Circuit, which upheld the Secretary of Labor's interim regulation,
stated that the "meaning of the statute is ambiguous" (817 F.2d at
401).

   Representative Simon stated with respect to Section 402(f)(2) that
"the language in this bill is crystal clear." 124 Cong. Rec. 3431
(1978).  While Representative Simon's conclusion that the language
enacted is clear beyond dispute has surely not received uniform
acceptance, it is noteworthy that he thought it clear that under
Section 402(f)(2) "(t)he Department of Labor is required to apply
medical criteria no more restrictive than criteria" applied under
HEW's interim regulation (ibid. (emphasis added)).

   /16/ This Court, in footnote 31 of the Mullins Coal Co. opinion
(slip op. 22), appeared to assume that the adjudicatory and
evidentiary rules in Labor's interim regulation could be no more
restrictive than those in HEW's interim regulation.  Neither that
assumption, which was not necessary to the decision there, nor the
Court's statement that labor's interim regulation "satisfies Congress'
demand that Labor's criteria 'shall not be more restrictive than the
criteria applicable'" under HEW's interim presumption (slip op. 18),
should be viewed as controlling this case, where the issue is actually
presented.

   /17/ That version of the bill would have amended Section 402(f)
simply by providing that "(w)ith respect to a claim filed after June
30, 1973, such regulations shall not provide more restrictive criteria
than those applicable to a claim filed on June 30, 1973" (H.R. Rep.
95-151, supra, at 52).

   /18/ The Sixth Circuit suggested in Klye that Congress's choice of
the phrase "criteria for all appropriate medical tests" in Section
402(f)(1)(D) and only "criteria" in Section 402(f)(2) shows that it
intended "criteria" in the latter section to have a broader meaning
(819 F.2d at 143).  However, nothing in the legislative history
supports such a conclusion.  To the contrary, the fact that the House,
which drafted the language that became Section 402(f)(2), focused on
the difference between the ventilatory study scores used under Part B
and Part C during the 1974 Hearings and repeatedly referred to medical
criteria in its reports (H.R. Rep. 94-770, 94th Cong., 1st Sess. 13-14
(1975);  H.R. Rep. 95-151, 95th Cong., 1st Sess. 15 (1977)) indicates
that the criteria referred to in Section 402(f)(2) are medical
criteria.

   /19/ The Sixth Circuit in Kyle, like most of the other courts that
have held that Labor's interim regulation is inconsistent with Section
402(f)(2), relied on the assertion that the "general purpose" of the
1978 amendments "appears to have been to liberalize the standards
under which black lung benefits were being awarded at the time" (819
F.2d at 142).  That statement is not entirely accurate and certainly
does not compel the conclusion that Congress intended to provide a
presumption of entitlement to benefits to miners with fewer than ten
years of coal mine experience.  Congress heard evidence both that
HEW's permanent ventilatory study standards were too strict and that
HEW's interim ventilatory study standards were too lax.  It ultimately
responded by instructing Labor to devise new medical standards, which
is not a liberalizing of the standards.  In the interim, it instructed
Labor to apply HEW's interim ventilatory study standards, which did
have a liberalizing effect.  But that does not indicate that Congress
intended to mandate that miners with fewer than ten years' experience
be allowed to establish a presumption of entitlement to benefits, and
it is improbable that it so intended in light of the evidence before
it that those miners were unlikely to suffer from black lung disease.

   /20/ The issue was raised but not decided in Consolidation Coal Co.
v. Smith, 837 F.2d 321 (8th Cir. 1988).

   /21/ The Department of Labor does not think that the rebuttal
methods set out in HEW's interim regulation were meant to be
exhaustive.  See 43 Fed. Reg. 36826 (1978).  The Benefits Review
Board, however, thinks that HEW's interim regulation did not allow for
rebuttal by proof that the claimant did not have pneumoconiosis or the
claimant's disability did not arise out of coal mine employment.
Whiteman v. Boyle Land Y Fuel Coal Co., No. 87-348 BLA (May 2, 1988),
slip op. 3.  At the same time, though, the Board believes that HEW's
interim regulation cannot be applied to Part C claims because coal
mine operators were not given the opportunity to comment on it as
required by the Administrative Procedure Act and that the additional
rebuttal methods in Labor's regulation should be applied (id. at 3-4).

   /22/ The Sixth Circuit, while holding in Kyle that Labor's interim
regulation is contrary to Section 402(f)(2) because it does not allow
claimants with fewer than ten years of coal mine work to invoke the
presumption of total disability, suggested that Labor's interim
regulation is not inconsistent with the statute insofar as it
authorizes additional rebuttal methods.  819 F.2d at 144;  see also
Warman v. Pittsburg Y Midway Coal Mining Co., 839 F.2d 257, 258 n.1
(6th Cir. 1988);  Prater v. Hite Preparation Co., 829 F.2d 1363, 1366
n.2 (6th Cir. 1987);  Ramey v. Kentland Elkhorn Coal Corp., 755 F.2d
485, 490 (6th Cir. 1985).  The court did not explain why it was
permissible for Labor's interim regulation to be more restrictive in
authorizing additional rebuttal methods.

   /23/ Section 1361 provides that "(t)he district courts shall have
original jurisdiction of any action in the nature of mandamus to
compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff."

   /24/ The putative class respondents dismiss decisions such as this
Court's decision in Wilbur as "old cases." 87-821 Br. in Opp. 21.

   /25/ In fact, whether Labor's interim regulation complies with
Section 402(f)(2) was first raised, sua sponte, by Board member
Miller, in Lynn v. Director, Office of Workers' Compensation Programs,
3 B.L.R. 1-125, 1-128 (1981).  The Board did not decide the issue in
Lynn (id. at 1-126 n.1) or in Halon (see 713 F.2d at 31), the first
court of appeals decision on the issue, because it had not been timely
raised in either case.  After Halon, the Board found the regulation
consistent with the statute, but followed Halon in claims arising in
the Third Circuit.  See Reilly v. Director, Office of Workers'
Compensation Programs, 7 B.L.R. 1-139, 1-144 (1984).  Because the
issue was unsettled before the Board until 1984, and because
administrative law judges follow the Board where it disagrees with
Labor Department regulations, respondents err in claiming (87-821 Br.
in Opp. 16) that raising the issue would have forced members of the
putative class, all of whom filed claims before April 1, 1980, through
a "clearly futile pursuit of the entire administrative process and an
appeal to a court of appeals."

   /26/ The putative class respondents state (87-821 Br. in Opp. 19)
that "the Secretary had denied claimants a right that could not, in
principle, be vindicated if those claimants were required to pursue
the administrative process on an individual basis." That is flatly
wrong.  If they had appealed and prevailed on the argument that the
Secretary's interim regulation is contrary to Section 402(f)(2), and
they qualified for the presumption of entitlement under HEW's interim
regulation, they would have obtained the benefit of that presumption,
which is what they now seek.  The cases respondents cite in support of
their claim that exhaustion should be excused, such as Nader v. Volpe,
466 F.2d 261, 269 (D.C. Cir. 1972) (district court may "preserve a
substantial right from irretrievable subversion in an administrative
proceeding"), are therefore not relevant to their claim.  Moreover, as
the Eighth Circuit noted (87-827 Pet. App. 4a), Labor has been
applying adverse court of appeals decisions in cases pending in the
relevant circuit on the date of the decision, so, after the first
claimant in a circuit prevailed on the merits issue, no other claimant
was required to continue to pursue it.  And, in light of respondents'
suggestion that it is unreasonable to expect claimants to retain
counsel (87-821 Br. in Opp. 17), it should be noted that the Act
requires responsible operators or the Black Lung Disability Trust Fund
to pay prevailing claimants' attorneys' fees.  See 20 C.F.R. 725.362,
725.367.

   /27/ Decision are subject to modification only where there is "a
change in conditions or a mistake in a determination of fact" and a
request for modification is made within one year of the final
decision.  See 30 U.S.C. (& Supp. III) 932(a);  33 U.S.C. (& Supp.
III) 922;  20 C.F.R. 725.310.  This modification provision is not a
basis for refusing to apply res judicata any more than the possibility
of reopening district court judgments for various reasons under Fed.
R. civ. P. 60(b) is a reason for refusing to give judicial decisions
preclusive effect.  See Downs v. Director, Office of Workers'
Compensation Programs, 803 F.2d 193, 199 n.13 (5th Cir. 1986) (res
judicata applies despite modification possibilities).

   Subsequent claims for black lung benefits may be entertained where
"the deputy commissioner determines that there has been a material
change in conditions." 20 C.F.R. 725.309(d).  That exception is
necessary because pneumoconiosis is a progressive disease, so that a
claimant who is not totally disabled when he first applies for
benefits may subsequently become totally disabled as a result of black
lung disease even if he was not exposed to coal dust in the interim.
See Lopatto, supra, 85 W. Va. L. Rev. at 680.  That exception is
plainly not a valid basis for denying preclusive effect to
administrative decisions in situations where the predicate for
reconsideration -- a material change in conditions -- is not
satisfied.

   /28/ The Eighth circuit suggested that Congress intended to waive
the failure on the part of the members of the putative class to
exhaust their administrative remedies or seek judicial review in
timely fashion (87-827 Pet. App. 15a-17a).  But, while Congress did in
fact waive the deadlines in the case of claimants who had been denied
benefits prior to the 1978 amendments by ordering that their claims be
reopened, those claims were reopened and reconsidered.  The court of
appeals plainly erred in concluding that it could order further
reopening.  Nothing in the statute suggests that Congress intended to
abolish the deadlines it had established, so that claims are
permanently subject to reopening by the courts.

   /29/ It would also be difficult for individual coal mine operators
or the industry-financed Black Lung Disability Trust Fund, which at
the end of February 1988 was over $2.9 billion in debt to the United
States Treasury, to gather evidence to meet these stale claims.  The
individual operators and their insurers could not reasonably have
anticipated that thousands of previously-denied claims would be
ordered reopened.  Nor could Congress, in setting the rate of tax on
coal to finance the debt-ridden trust fund (26 U.S.C. 412(a), 9501),
have anticipated the Eighth Circuit's decision. 4 ##FN30

   /30/ The Eighth Circuit cited (87-827 Pet. App. 16a) Bowen v. City
of New York, 476 U.S. 467 (1986), in support of its conclusion that
reopening is barred because the claims had been finally denied.  That
case does not support the Eighth Circuit's decision to order
reopening.  First, the time limits under the Black Lung Benefits Act
have been construed to be jurisdictional and do not allow for
extensions of time as does the provision of the Social Security Act
(42 U.S.C. 405(g)) at issue in Bowen v. City of New York.  See 33
U.S.C. 921(c) (incorporated by 30 U.S.C. (& Supp. III) 932(a)).
Second, this Court's reasoning in that case supports the conclusion
that reopening is not appropriate here.  The Court recognized that
"exhaustion is the rule in the vast majority of cases" (id. at 486).
It concluded that tolling of statutes of limitations is warranted "in
the rare case such as this" (476 U.S. at 481) where an "unrevealed
policy" was implemented (id. at 485).  there was, of course, no secret
policy here;  the Secretary's interim regulations have been published
in the Code of Federal Regulations since they were promulgated in
1978.

   Appendix