may please the court i'm william mattingly here on behalf of the coal mine operator mango logan coal company the two cases you're going to hear today are both black lung cases as you've already acknowledged they deal with one hundred twenty four word addition to the a c a section fifty and fifty six and how it real plaice certain provisions of the black lung benefits act this case deals with a reallocation of thirty u s c nine twenty one c four as it applies to minors claims the parties agree on certain things and it's always  easier to get that out the parties agree mr owens was a long time coal miner he almost worked for thirty years the parties agree that he's totally disabled why does that matter that matters because of the change in the black lung benefits act he is intitled to a fifteen year presumption of total disability due to new macone uses because he was a long time coal miner and he has a disabling pulmonary disease that means mingle logan my client has to rebut that presumption so once the administrative law judge found correctly that the presumption was invoked the administrative law judge concluded that mingle logan had to rule out coal mine employment as a cause of the disability and that's where we start to go astray impairment did not arise out of or in connection with employment in a coal mine and that second provision the disability rebuttal provisions the focus of the argument here this morning and the real question is must a coal mine operator roll out any possible connection between coal mine employment and disability or can the operator show impairment from new macone osis but still shows something else was the cause of the disability that is to say can an operator show new secretary doesn't cover the full logical possibilities that there's a third logical possibility which is the causation between a macone oses in the disability that is correct and in showing that connection you suggest that you would be able to show focus on the substantiality of the causation yes if it's mild it's not substantial at least try that's a pretty narrow gate but  that you should be able to try to prove its third logical that is if i could just you argue that's the gist of the argument that nine twenty one c has five subdivisions the fourth one for whatever reason says it's limited to the secretary the agency agrees with me page eleven of their brief footnote five they say that an employer can rebut ours off of it with some persuasion they argue that the two put two provisions attributed to the secretary the wa are all of the logical possibilities and i must say you start looking at the act in the way they're things are defined in causation of this in causation of that it gets mighty close and we were trying to figure out logically whether there is an opportunity for you to prove anything else other than those two things two we bought it and your argument is you would focus on the substantiality of causation between  disability correct using the sentence and as a reason we cited in our brief that says the operator should be able to rely on showing new macone uses mild and still be able to rebut the presumption for a mile by some you say it's not within the causation partial causation correct and when i get there how do you i mean even assuming that then how do you repeat the presumption what what evidence are you going to present you didn't even in this case make any substantive claim of how you would go about  rebutting that presumption yes in this case i think we did make a subset of klein that were rebutted the presumption in as much as we relied on the opinions of doctors as out of our and hip and steele who explained that this man's impairment was one that was due to an  pulmonary fibrosis while they could exclude coal mine dust as causing this disease that his disease did not fit in the usual parameters of coworkers knew macone uses it progressed too quickly it had a mild restrictive airways presentation it had severe hypoxia it had severe diffusion impairment based on their clinical judgment and the radiograph isn't that all rejected on the merits by the a l j below that is that is what the other parties have suggested however the l j looks through the wrong lenses in looking at the evidence because they'll be an awfully tough standard on appeal for you to convince me of that well the l j said you have to rule out any causal connection and when the rail gee did that that put up too high of a gate for my client to cross my client doesn't have to exclude any possibility the coal mine dust might in fact be responsible if i don't know seems to be inverting the presumption in favor of the operator that doesn't make any sense no otherwise you're giving the claim of the double presumption the claim it's already been a fitting from a presumption of disability due to makoni osis having never proven to makoni uses by virtue of the years of employment construct we were talking about is if we give you the benefit of trying to prove this mild causation of less attention just d s is asking hasn't ha facts that are found even if we give you the benefit of that legal structure haven't the facts all even though they may or not jump through that hoop and that way you're still precluded because of the findings of fact in this case unless there is no substantial evidence to support it i don't think we can give the agency factfinder their benefit of the deltas to what they would have done with this standard except they found facts that in other words my point is if we were to conclude that they came out factually subject to differential review that their that their factual findings are can't be challenged then it seems to me you may gain the legal structure but the facts still may it may not help you in this case that's i think that's the question d s is presenting i may win the battle but lose the war well if you can characterize it may not be abo gyroscope to look at the three different issues is because of the question of this rule out standard the rule out standard as a child of the prior regulations prior regulations well i have a session about that mr mattingly which is really more fundamental than the discussion so far your focus on usury in the statute confuses me a little bit because aren't we here on the regulation well we could we are here on the statute no i mean the regular question  here on the regulation i'm glad to argue and usually doesn't say anything about the regulations used and as i had sam in the record you didn't say anything about the validity of the regulation before the board the regulation is invalid because what the secretary did was just a did you raise that issue before the board i believe it was raised i could go back and you point to me in the record i will double check ok come back and tell you but do you do agree that you needed to raise the validity of the regulation before the board for this court to examine that issue respectfully no i don't agree because though it would have been useless before the board the board's case law was invoking a futility exception has this court ever adopted the fertility exception in the administrative context i believe well it's a lot broader isn't it because the stats you don't have class the secretary right and the regulation the secretary says oh no we think this is a good role and it should apply to operators as well and that's the problem the director or the secretary doesn't make any provision for what usery said the operator can do when that is rebut in methods the secretary can't and you're going to tell us where you made that argument before the board i well ok the the the regulation issue seven eighteen to zero four is the key to this case i think because the claimant has to show no macone osis is causing a material adverse effect on the pulmonary impairment or materially worsens or aggravates the pulmonary impairment so the converse ought to be able to be shown for the employer to establish ribot now if the employer can show that new macone osis didn't have a material adverse effect or materially worsened it logically steam stands to reason that you could be showing you macone osis cause some impairment but it didn't make a difference that provision wouldn't be allowed under the two pronged interpretation by the agency which says you have to disprove the existence or or rule out it causing any of the disability in a particular case so that that is what the permanent regulations have defined disability to be and when you examine that the operator has to be able to show new macone osis can be mild everybody seems to agree has to be read one way and the regulation doesn't follow the statute and there's no argument raised about the regulation being now being illegal i mean can we choose to apply the statute in ignore the regulation in that circumstance or we bound to apply the regulation and bypass a statute which has seen you already so to speak i think the statute trumps the regulation it does on a challenge the question is how do we handle it if we don't have a challenge before us when we have to we recognize a incompatibilities between  statute and regulation answer that the the futility doctrine helps on that standpoint that the board case law was clear that the regulation would be applied regardless of what the statute had to they please the court my name is john klein and i represent mr owens regarding the first issue the rebuttal stander the claimant agrees with the secretary's position and defers any questions on that issue to the solicitor would like to say a few things about mr owens though as mr mattingly said he was an underground coal miner for twenty nine years he developed a severe discipline total pulmonary disability and he is essentially a nonsmoker and had no other pulmonary risk factors other than his twenty nine years of exposure to call mind honest which included working thirteen years in a forty two inch coal seam and a lot of exposure to both rock and silicon dust his claim has been in litigation for four years and he literally went to his grave worrying about whether his benefits would be upheld his wife still lives with that uncertainty regarding the merits there are very few of these claims that are employer's experts acknowledged that the diagnosis requires exclusion of other known risk factors and there was a recently found that the employer sexperts were entitled to less weight because they did not  stated by the benefits review board the law judge findings were supported by substantial evidence and just me on this and just determined that it was beyond the scope of review to reweigh them particularly in a case like this where the minor had no other please the court my name is sarah hurley and i represent the director office workers compensation united states department of labor the buck one benefits act fifteen your presumption provides a rebuttable presumption for a coal miner who's worked for fifteen years an underground coal mine employment if he proves that he suffers from a totally disabling respiratory impairment he's reportedly presume to suffer from new macone osis and also that is totally disabling respiratory impairment is due to his coal mine dust exposure everyone in this case agrees that the presumption can be rebutted in at least two ways the party opposing entitlement can prove that the minor doesn't have clinical or legal macone osis and they can also disprove the connection between the miners disability and coal dust exposure the issue in this case is what an operator must prove to establish rebuttal under the second method showing that the miners impairment did not understand them to actually be raising a third method which they say is precluded and they would like to show that it's mild and and there falls below that threshold the statutory threshold substantial contribution so logically it seems like that is would be available unless we would read the statute gather your view is the statute even if it says secretary really lists the only two logical possibilities it's that that's exactly right and they suggest that there is a third logical possibility which i  just described and maybe you could address that yes your honor i understand but your your point but are our interpretation of the operators argument that they're trying to disprove disability because ation by proving that new macone osis only more coal dust exposure only contributing mildly to the impairment that's really the second method they are trying to to disprove disability causation the question is excepted what one just trying contributing or is by substantial contributing cause to the disability which is the fundamental statutory requirement for benefits and they want to be able to show that which is not included in those two and it seems to me logically that should not unless we construe secretary to include operator but if we don't if we take the usury a line then it seems to me that would be another way they could do it even though i think it's a very tough way and in this case there's still the open question of whether the facts allow for that if you if the facts are supported right that that's true  that's exactly what you're saying but we still believe that by showing by breaking a connection between the impairment and the coal mine dust exposure that's the same as proving that that the miners disability didn't arise out of the coal dust exposure because you would be disapproving the link between a macone osis which is only caused by the coal dust exposure as defined in the act i mean the disability causation prong takes care of that if it if they can can disprove the link between the disability and the the end you go back to what is it seven twenty five or something and the requirements for showing showing that you have to show that new macone osis itself however defined was a substantially cause of the disability right but this circuit in the departments regulations require an operator in the situation to rule it out and that has been this court's precedent and it departments regulations for its long standing and it makes sense in this type of situation because we have a minor the whole idea behind the fifteen year presumption was to assist a miner that had fifteen years you know a high risk miner for eight pieces path for eligibility and in this case a min who invokes the presumption he's already established his long term dust exposure that he has a totally disabling respiratory impairment and he also really has established that he has no macone else this other that he gets a presumption of no no accounting houses and he gets a that mean well it means more than a de minimus it means more than a de minimus cause it has to have some tangible effect on the on the miners disability and we have that on this record right now we don't have that on this record  we we have a credibility determination made by the l j that that the doctor's opinions who were sufficient really to rule out just were plain not credible on any standard at all in this regulation well first i'd like to see this to see if the statute definitely spoke to the issue and it does but you would also look to our if the agency's definition to see if it's a permissible interpretation of the statute what if we conclude it's not we read it now do you believe the issue needed to be raised before the board in order for us to consider it other than source but it yes yes your honor we would we'd like we would like a chance to address it definitely  do we ply the reg well we would have to apply the statute because the statute trumps the regulation definitely agree but we believe that our this oh i know you do i'm excited i'm going on hypotheticals and trying to figure out because there is does seem to me and i concede this part that there is some tension between the reckon the snatch it is right on to use there is some tension but we believe that really at issue in this case is what an operator has to prove under that second method and so there really isn't as much of a tension as the point beside the point because what usery said about the statute as a matter of law applies to the regulation the supreme court's opinion on what the statute says does bind us right in our writing our regulation we do concede that so so i take it from that concession that the operator didn't really have to raise the issue of the regulation if in fact the argument is the supreme court has already left this little window that we can climb through well the window exists i think what you just said is that if the window exist in the statute frags perhaps where this statute is not clear and i think perhaps you misunderstood me what i mean the window is the window the operator wants the client through in this case you don't have to climb through the window in the statute because history says the statute doesn't apply to the operator but he's drawing from us or e if i understand the argument the basis for a window in the regulation but i thought you just agreed with that i might want to refine that a bit ok that got a little time to that but actually the statute actually doesn't define what an operator much proved to rebut the presumption i mean the statute does say what the secretary must prove but it doesn't say what the operator must prove and i think as we discuss in our brief what the operator must prove is exactly what the secretary has to prove in this case  the operator can prove something less than the secretary that's what the supreme court told us in our history that's what we have to apply judge davis reply brief pages twenty one and twenty two we cited futility cases some of them are black long cases some the six the agency still hasn't changed it so while the agency may have to remodel that regulation for judges to apply it at this point everyone's just applying the statute so i don't think we have to be concerned with what seven eighteen three zero five says it all because it by definition does not apply to this case because it was filed after january one thousand nine hundred two and that's why we focused on the on the challenge to the statute as opposed to challenging the regulation the only case the the rule out standard is just too tough with the window that was left open by the the usury decision by the fact that the statute does not limit operators so this case really needs to go back for the l j to apply that standard l j may get the same result but we don't know that until the agency factfinder has a chance to grapple with the evidence under that standard senator thank you all right thank you mr mattingly we'll come down and recount to proceed on to our second