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 WORKER'S COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR, PETITIONER V. CHARLIE BROYLES, ET AL.

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

   In The Supreme Court Of The United States

   October Term, 1988

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

   Reply Brief For The Federal Petitioners

            TABLE OF CONTENTS
   Conclusion

   1. The primary issue before the Court is whether the Department of
Labor's interim regulation applicable to claims filed for 1980, 20
C.F.R. 727.203, is consistent with the statutory commandment of
Section 402(f)(2) of the Black Lung Benefits Act of 1972, 30 U.S.C.
902(f)(2), that the regulation's "criteria * * * not be more
restrictive" than those applied under HEW's interim regulation, 20
C.F.R. 410.490, which governed claims filed before July 1, 1973.  Both
the Labor and HEW interim regulations provide for a rebuttable
presumption procedure by which claimants may be found entitled to
benefits without direct proof of all of the statutorily required
elements of 1) total disability;  2) caused by pneumoconisosis;  3)
arising out of coal mine employment.  Mullins Coal Co. v. Director,
Office of Workers' Compensation Programs, No. 86-327 (Dec. 14, 1987),
slip op. 5.  The courts below have ruled, incorrectly we submit, that
the conditions for invoking the rebuttable presumption under the Labor
regulation impermissibly result in more restrictive "criteria" than
the HEW regulations.  Specifically, under the HEW regulation some
claimants who offer proof of pneumoconiosis but have fewer than ten
years of coal mine experience may trigger the presumption by otherwise
proving that coal mine employment was the cause of their disease,
while under the Labor regulation no such alternative proof of
causation may be offered by claimants with fewer than ten years of
coal mine employment in order to trigger the presumption.

   We argued in our opening brief that this difference in the method
of proving coal mine causation in order to trigger the rebuttable
presumption of entitlement to benefits is not a more restrictive
criteria as that term is used in Section 402(f)(2).  Section 402
defines various terms used in the statute, and Section 402(f)(2),
which bars the use of more restrictive criteria, is part of the
definition of "total disability." The criteria referred to thus bear
on the issue of whether a person is totally disabled, not on the
statutory requirement relating to coal mine causation of that
disability.  In our view, therefore, Congress in Section 402(f)(2) was
referring to medical criteria relating to whether a claimant is
totally disabled, not to HEW's evidentiary and adjudicatory rules,
including its allowance of evidence other than duration of employment
in order to prove coal mine causation.

   The Sebben respondents contend in response that "total disability"
is actually a "term of art" (Br. 23) embodying the three elements of
entitlement to black lung benefits -- total disability,
pneumoconiosis, and coal mine causation.  See also Broyles Br. 20
n.22.  They rely on Section 402(f)(1)(A), 30 U.S.C. 902(f)(1)(A), also
part of the definition of "total disability," which provides that "a
miner shall be considered totally disabled when pneumoconiosis
prevents him or her from engaging in gainful employment requiring the
skills and abilities comparable to those of any employment in a mine
or mines in which he or she previously engaged." They also rely upon
the definition of "pneumoconiosis" (Section 402(b), 30 U.S.C. 902(b)),
which provides that it is a pulmonary disease caused by coal mine
employment.  Read together, they suggest, these provisions lead to the
conclusion that "total disability" is the statute's way of referring
to the ultimate question of entitlement to benefits, and the reference
to "criteria" embodies any evidence bearing on that issue.

   The Sebben respondents' construction of "total disability" to
include not only the fact of disability, but also the disabling
disease -- pneumoconiosis -- and its coal mine causation, is at best
an awkward and counterintuitive use of language.  Ordinarily, whether
a person is totally disabled is considered a question distinct from
what caused his disability.  See Black's Law Dictionary 1336 (5th ed.
1979).  Also, as the Sebben respondents concede (Br. 23 n.38), their
construction is not supported by what would be several redundant
references in the Act (see, e.g., 30 U.S.C. 901(a), 922(a)(1) and (3))
to miners who are totally disabled "due to pneumoconiosis."

   In addition, nothing in the history of the enactment of Section
402(f)(1)(A) -- which contains the only reference to pneumoconiosis
within the definition of total disability -- suggests that Congress
had a purpose to bundle the whole question of entitlement to beneifts
into the term "total disability." That section, which was added to the
statute in 1972, had the distinct purpose to modify HEW's prior
determination that a miner had to show inability do any gainful work
to be considered totally disabled, not to turn into a term of art.
See Black Lung Benefits Act of 1972, Pub. L. No. 92-303, Section 4(a),
86 Stat. 153;  S. Rep. 92-743, 92nd Cong., 2d Sess. 16-17 (1972).
Absent some clear indication of a further purpose to convert the
definition of "total disability" into a term of art incorporating all
the elements of a claim, "total disability" should be construed in
light of its ordinary meaning.  See Mills Music, Inc., v. Snyder, 469
U.S. 153, 164 (1985).

   The Broyles respondents assert (Br. 39) that even if the "criteria"
referred to in Section 402(f)(2) are medical criteria, the cause of a
miner's disability is often a question best answered by a physician,
so that the causation element of HEW's interim regulation is included
in the criteria preserved by Section 402(f)(2).  But that argument
relies on the same counterintuitive concept of "total disability."
What causes a miner's pheumoconiosis is a distinct question from
whether the claimant is totally disabled.  Notwithstanding that a
physician's opinion may be relevant to the causation questions, that
opinion will rest on a distinct body of evidence and relate to a
separate issue.  The fact that medical expertise may be relevant on
the question of causation does not suggest that the criteria used to
define total disability include those used to determine causation.
/1/

   Both respondents concede (Sebben Br. 34-36;  Broyles Br. 18 n.20)
that the Labor's interim regulation is not defective on the ground
that it incorporates methods of rebutting the presumption of
entitlement to benefits which were not expressly set forth in HEW's
interim regulation.  /2/ In so doing, they have conceded that
"criteria" does not include all the evidentiary and adjudicatory rules
in HEW's interim regulation.  Indeed, their concession applies to the
most important adjudicatory rule because, as the Broyles respondents
admit (Br. 24 n.24), whether a claimant obtains benefits "is
ultimately determined using the various rebuttal methods." /3/
Respondents thus urge that "criteria" in Section 402(f)(2) refers to
the adjudicatory and evidentiary rules employed by HEW in connection
with invocation of the presumption.  Nothing in the language of the
provision or its legislative history offers any basis for such a
peculiar construction of the statute.  Our interpretation, in
contrast, is closely tied to both the language of Section 402(f)(2)
and its legislative history, which show that Congress intended to
require Labor to use HEW's medical criteria, particularly the
ventilatory study scores in its interim regulation, in determining
total disability, until it devised new "medical tests * * * which
accurately reflect total disability in coal miners" (Section
402(f)(1)(D), 30 U.S.C. 902(f)(1)(D)).

   In arguing that Labor was confined by HEW's approach to invoking
the presumption, but not by its approach to rebuttal, the Sebben
respondents rely explicitly on the Conference Report for the
proposition that Congress clearly intended to require the use of the
additional rebuttal methods recognized by Labor.  That Report, they
correctly note, clearly "mandat(ed) that 'in determining claims under
(the interim) criteria all relevant medical evidence shall be
considered in accordance with the standards prescribed by the
Secretary of Labor.'" Br. 35 (quoting H.R. Conf. Rep. 95-864, 95th
Cong., 2d Sess. 16 (1978));  see also Broyles Br. 18 n.20.  In so
acknowledging, however, they ignore the very next sentence of the
Conference Report, stating that "all standards are to incorporate the
presumption contained in section 411(c) of the Act." Section
411(c)(1), 30 U.S.C. 921 (c)(1), states that it should be presumed
that "pneumoconiosis arouse out of such employment" in cases involving
claimants who worked for ten years as a coal miner.  Congress thus
attached great significance to the presumption of causation based on
ten years of coal mine employment.  In contrast, respondents have
pointed to no evidence whatsoever that Congress intended that miners
with fewer than ten years of coal mine experience should be allowed to
establish a presumption of entitlement to benefits if they presented
X-ray evidence showing pneumoconiosis.

   The medical evidence underlying Congress's mandate that "all
standards" incorporate the ten-year presumption contained in Section
411(c)(1) showed that miners were unlikely to have contracted
disabling pneumoconiosis in that period of time, as we stated in our
opening brief (at 23-24).  In complaining (Sebben Br. 32) that we
cited only one medical reference, respondents failed to note that the
medical report we cited was appended to a 1977 congressional report,
and hence is the most relevant study indicating what Congress
understood at the time it enacted Section 402(f)(2), and that it
summarized the evidence in a manner highly favorable to claimants.
/4/ As respondents stated, the studies summarized in the medical
report showed that miners have fewer than ten years' experience in
coal mines may contract pneumoconiosis.  However, "pneumoconiosis is
customarily classified as 'simple' or 'complicated(,)'" and "(s)imple
pneumoconiosis * * * is generally regarded by physicians as seldom
productive of significant respiratory impairment." Usery v. Turner
Elkhorn Mining Co., 428 U.S. 1, 7 (1976).  Congress plainly recognized
in enacting the Black Lung Benefits Act that pneumoconiosis is not
necessarily disabling, since, as Section 401(a) states, the purpose of
the Act is to provide benefits to miners "totally disabled due to
pneumoconiosis," not just to miners who contracted pneumoconiosis.
Respondents failed to note that the studies summarized in the medical
report appended to the House report showed that almost all cases of
disabling pneumoconiosis occurred in miners with substantially more
than ten years' experience.  /5/ In fact, the medical report suggested
that paying miners benefits after 15 years of experience would "be
good preventive medicine" since it would remove them from coal mines
before they developed a disabling form of the disease.  H.R. Rep.
95-151, 95th Cong., 1st Sess. 33 (1977).  In light of that evidence,
it is implausible that Congress would have required Labor to presume
that miners with X-ray evidence of simple pneumoconiosis but fewer
than ten years of coal mine experience are entitled to benefits.  /6/

   Both respondents (Sebben Br. 36-37;  Broyles Br. 41-42) contend
that the Secretary's interpretation of Section 402(f))(2) is not
entitled to deference becasue it is a post hoc rationalization that
was not made contemporaneously with the implementation of the statute.
 There is no basis for that contention.  Labor's interim regulation
was finally promulgated on August 18, 1978, less than six months after
the 1978 amendments took effect, and the first sentence of the
regulation has always required that a claimant show that he "engaged
in coal mine employment for at least 10 years" in order to invoke the
presumption (20 C.F.R. 727.203(a)).  The Secretary's interpretation is
plainly a contemporaneous construction of Section 402(f)(2) that is
entitled to deference.

   2. The Sebben respondents argue that the Eighth Circuit correctly
ordered the Secretary to reopen all Part C claims arguable denied by
virtue of the alleged defect in Labor's interim regulation.  They rely
on Congress's 1978 enactment of Section 435(b), 30 U.S.C. 945(b),
directing the Secretary to review each claim denied prior to or
pending on March 1, 1978, taking into account the provisions of the
Black Lung Benefits Reform Act of 1977, including the "no more
restrictive criteria" requirement of Section 402(f)(2).  /7/

   As an initial matter, it should be noted that it is undisputed that
the Secretary reopened the Part C claims that had been denied and
reconsidered them, along with unresolved, pending claims, under
Labor's interim regulation.  Thus, their claims were "automatically"
reviewed in light of the 1978 amendments.  And, as the evidence cited
by the Sebben respondents shows (Br. 8 & n.21), review under Labor's
interim regulation had a major impact, since the approval rate of part
C claims more than quadrupled (from less than 10% to 45%) under
Labor's interim regulation.  Claimants with fewer than ten years of
coal mine employment benefited from the Secretary's review following
the 1978 amendments since an expanded definition of pneumoconiosis (30
U.S.C. 902(b);  20 C.F.R. 727.202, 718.201), a prohibition against
re-reading certain X-rays (30 U.S.C. 923(b), and worker's compensation
principles of causation (S. Rep. 95-209, 95th Cong., 1st Sess. 13-14
(1977)) applied to their claims as a result of the amendments.  In
addition, the 1978 amendments gave them a right to a complete
pulmonary examination at the expense of the Black Lung Disability
Trust Fund.  30 U.S.C. 923(b);  20 C.F.R. 725.406(c).  In short, there
is no basis for respondents' claim (Sebben Br. 40) that "the Secretary
went through (a) largely meaningless exercise" in considering their
claims in light of the 1978 amendments.

   The members of the putative class contend only that Labor's interim
regulation did not fully satisfy the "no more restrictive criteria"
requirement of Section 402(f)(2).  This argument could have been
raised on administrative and ultimately judicial review of the
post-1978 denials of those claims.  And nothing in Section 435(b)
suggests that Congress intended to exclude those claims from the
provisions governing available administrative and judicial review.  To
the contrary, Congress intended such review to be available to 'all
claims certified, referred, or otherwise subject to review by the
Secretary of Labor." H.R. Conf. Rep. 95-864, supra, at 23.  In
addition, as we stated in our opening brief (at 34), the statute sets
jurisdictional time limits for claimants to seek review of decisions
denying benefits.  /8/

   Respondents have failed to justify the invocation of mandamus to
compel the reopening of cases which the Secretary has already
considered once pursuant to the automatic review requirement of
Section 435(b).  Even if one were to accept the argument (Sebben Br.
48-49) that a doubtful duty (such as the alleged duty under Section
402(f)(2) to allow claimants with fewer than ten years of coal mine
experience to invoke the presumption of entitlement to benefits) may
become sufficiently clear after a court construes a statute to justify
mandamus relief (Br. 48-49), the Sebben respondents have neglected to
explain how any provision in the Black Lung Benefits Act calls for any
further reopening of claims that were finally denied after review
under the 1978 amendments.  Since nothing in the Act even arguably
requires the Secretary to reopen yet again such claims which have not
been pressed on administrative review, mandamus is plainly not
warranted.  /8/

   The Sebben respondents rely heavily on Bowen v. City of New York,
476 U.S. 467 (1986).  In the process, they ignore the distinction
between the concealed application of an illegal requirement to screen
out claimants (as in Bowen) and the open and public application of a
standard alleged to be correct.  /10/ The exhaustion requirement was
waived in Bowen not because the agency applied the incorrect standard,
but because it concealed from claimants, and thus prevented them from
challenging in a focused way, the illegal hurdle it was placing before
them (id. at 484-485).  The administrative review process exists to
allow for the correction of errors, and administrative autonomy
justifies an exhaustion requirement so that the agency may have a
chance to discover and correct its own errors.  McKart v. United
States, 395 U.S. 185, 195 (1969).  Absent the sort of impairment of
the review process identified in Bowen, there is no basis for a court
to permit circumvention of a statutorily-mandated scheme of review.

   Finally, the Sebben respondents present no reason not to invoke res
judicata.  They do not dispute that black lung adjudications resemble
adversary court proceedings, which, as we stated in our opening brief
(at 36), leads to the conclusion that their claims are barred.
Respondents' sole discussion of res judicata (Sebben Br. 44-45) states
that it does not apply because there has been no ruling on their
asserted right to automatic review.  But res judicata, of course, bars
relitigation of issues that could have been raised in prior
proceedings, whether or not they actually were raised.  Federated
Department Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981);  1b J.
Moore, Moore's Federal Practice Paragraph 0.405(3), at 190-193 (1988).
 Accordingly, the Eighth Circuit erred in ordering the Secretary of
Labor to reopen claims that had been finally denied.  /11/

                              CONCLUSION

   The judgments of the courts of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   GEORGE R. SALEM

      Solicitor of Labor Department of Labor

   AUGUST 1988

   /1/ The Broyles respondents also argue (Br. 25) that Congress
intended "criteria" in Section 402(f)(2) to mean more than medical
criteria relating to total disability because in Section 402(d)(1)(C),
30 U.S.C. 902(f)(1)(C), Congress required the use of "criteria" no
more restrictive than those used by HEW in social security disability
determinations, and vocational as well as medical criteria are both
used in making social security determinations.  The argument is
without merit, however.  Vocational and medical criteria are both
relevant in determining whether a claimant is totally disabled.
Causation is a distinct issue apart from the fact of total disability,
and the manner in which it may be proved does not alter the criteria
governing the existence of the disability in the first place.

   /2/ HEW's interim regulation provides for rebuttal by showing that
the individual is doing coal mine work or comparable work or is able
to do so.  Labor's interim regulation allows rebuttal on these
grounds, and also expressly authorizes rebuttal by showing that the
miner's disability "did not arise in whole or in part out of coal mine
employment" and that "the miner does not * * * have pneumoconiosis"
(20 C.F.R. 727.203(b)(3) and (4)).

   /3/ The Sebben respondents similarly recognize (Br. 46) that the
differences between the rebuttal provisions of the interim regulations
are much more important, in practice, than the difference in the
methods of invoking the presumptions.  As they state, the predictions
by the private petitioners (Br. 3 & n.7) and amicus National Council
on Compensation Insurance, et al. (Br. 9 & n.9) that a large number of
claims that would be denied under Labor's interim regulation would be
granted under HEW's interim regulation were based in the assumption
that the additional methods of rebutting the presumption available
under Labor's regulation would not be available if the respondents
prevail here.  If the additional rebuttal methods are available in any
event and relevant evidence can be obtained, then it would seem that,
as we suggested in our petition (at 12) in No. 87-827, the massive
reopening ordered by the Eighth Circuit, while creating a substantial
adminsitrative burden, may change the result in relatively few cases.

   /4/ The medical reference was appended to the House Report in
support of the provision in its bill that would have provided black
lung benefits to all persons who worked for 30 years in coal mines
(see H.R. Rep. 95-151), 95th Cong., 1st Sess. 5 (1977)).  That
provision, which was opposed by many members of the House committee
(see id. at 80-84) and was not adopted by the Senate, was not enacted.

   /5/ One of the studies summarized in the medical report showed that
of 104 miners with more than 30 years of coal mine experience, 47
showed X-ray evidence of complicated pneumoconiosis or advanced simple
pneumoconiosis, while none of the 35 minors with fewer than ten years
of experience had complicated pneumoconiosis (H.R. Rep. 95-151, supra,
at 34).  Indeed, only two of the 35 miners with fewer than ten years'
experience showed any evidence of pneumoconiosis (ibid.).  Another
study summarized in the medical report, which both respondents cited
(Sebben Br. 32;  Broyles Br. 40), showed a higher incidence of
pneumoconiosis based on autopsy evidence.  However, as the bar graph
summarizing the autopsy study shows, complicated pneumoconiosis, as
well as "severe" cases of simple pneumoconiosis, while common among
miners with extensive experience, was uncommon among miners with fewer
than ten years' experience ((H.R. Rep. 95-151, supra, at 34).

   /6/ Labor, like HEW (see 20 C.F.R. 410.416(b)), has recognized that
miners with fewer than ten years' experience may contract
pneumoconiosis (see 20 C.F.R. 718.203(c)).  Broyles, who had five
years of coal mine experience and 20 years of experience in other
dusty occupations, was "given the benefit of the doubt" that his
pneumoconiosis was caused by coal mine employment (87-1095 Pet. App.
15a-16a).  The Sebben respondents thus err in stating that "a person
with 9.5 years of exposure * * * is barred from even attempting to
prove that this condition was caused by mine employment" (Br. 29).
Such claimants are barred only from establishing a presumption that
they are entitled to benefits.  And, while it would normally be the
case that pneumoconiosis resulting from limited coal mine experience
would not be disabling, nothing in the regulations prevents miners
with fewer than ten years of experience from showing that they are
totally disabled due to pneumoconiosis and hence entitled to benefits;
 again, they simply may not invoke a presumption of entitlement.

   /7/ The Sebben respondents admit (Br. 45 n.85) that the right to
"automatic" review did not extend to two of the subclasses of their
putative class.  Those miners whose claims were denied under the Part
B program had to request review in light of the 1978 amendments, and
therefore had no right to automatic review.  See 30 U.S.C. 945(a);  20
C.F.R. 410.704(d).  Those miners who filed claims after the effective
date of the 1978 amendments but before April 1, 1980, also had no
right under Section 435(b) to automatic review of their files in light
of the 1978 amendments, since they had not filed claims prior to the
1978 amendments.  The Sebben respondents have provided no basis for
reopening the claims of members of these subclasses.

   /8/ See, e.g., Danko v. Director, Office of Worker's Compensation
Programs, 846 F.2d 366 (6th Cir. 1988);  Butcher v. Big Mountain Coal,
Inc., 802 F.2d 1506 (4th Cir. 1986);  Arch Mineral Corp. v. Director,
Office of Workers' Compensation Programs, 798 F.2d 215, 217 (7th Cir.
1986);  Clay v. Director, Office of Workers' Compensation Programs,
748 F.2d 501, 503 (8th Cir. 1984);  Insurance Co. of North America v.
Gee, 702 F.2d 411 (2d Cir. 1983);  but see Brown v. Director, Office
of Workers' Compensation Programs, No. 87-7358 (11th Cir. Aug. 15,
1988).

   /9/ Even if one concluded, as we do not, that claimants had a
"collateral" right to an automatic review of their claims under
respondents' standard for invoking the presumption of entitlement to
benefits (Sebben Br. 40-41), such a right would not excuse their
failure to press that issue until long after their cases were closed.
The primary relevance of such a conclusion would be that earlier --
not later -- review of the issue might be justified.  See, e.g.,
Mathews v. Eldridge, 424 U.S. 319, 330 (1976) (plaintiff sought to go
directly to court to expedite resolution of his claim).

   In this case, recognition of a collaterial right to automatic
review under respondents' standard might have justified a petition to
the Benefits Review Board -- even before final consideration of their
claims by an administrative law judge -- to press for consideration of
their claimed right to consideration under their standard.  The Board
recognizes the collaterial order doctrine (Morgan v. Director, Office
of Workers' Compensation Programs, 8 B.L.R. 1-491, 11-493 (Ben Rev.
Bd. 1986);  Holmes & Narver, Inc. v. Christian, 1 B.R.B.S. 85, 88
(Ben. Rev. Bd. 1974)).  Having failed to raise the issue either early
or following denial of their claims, respondents certainly cannot
invoke the collaterial order doctrine to justify a right of review to
be asserted whenever they please.

   /10/ This case is also distinguishable from Bowen by the
jurisdictional nature of the time limits under the Black Lung Benefits
Act.

   /11/ As noted in our opening brief (at 38), the reopening effort
mandated by the Eighth Circuit would place an enormous strain on the
black lung benefits adjudicatory system.  The Sebben respondents'
prediction that initial reviews can be conducted quite expeditiously
(Br. 46 n.87) is based on the Labor Department's performance in the
wake of the 1978 amendments when Congress, after ordering reopening of
numerous claims, appropriated funds for 564 new staff positions, 453
of which were four-year appointments.  See Secretary of Labor, Annual
report to Congress on the Black Lung Program 6 (1977).