# Usery v. Turner Elkhorn Mining Company

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## Concurring Opinion

    Powell

## Concurrence/Dissent

    Stewart
Supreme Court of the United States
428 U.S. 1
Usery v. Turner Elkhorn Mining Company
Appeal from the United States District Court for the Eastern District of Kentucky
No. 74-1302 Argued: December 2, 1975 --- Decided: July 1, 1976
Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972, provides benefits to coal miners suffering from "black lung disease" (pneumoconiosis), and to survivors of miners who have died from, or while totally disabled by, the disease. Financial responsibility for payment of the benefits is divided into three parts: (1) Under Part B of Title IV claims filed between December 30, 1969 (enactment date), and June 30, 1973, are adjudicated by the Secretary of Health, Education, and Welfare (HEW), and paid by the United States; (2) under § 415 of Part B claims filed during the transition period between the Federal Government benefit provision under Part B, supra, and the state plan or operator benefit provision under Part C, Infra (July 1 to December 31, 1973), are adjudicated by the Secretary of Labor and paid by the United States. Federal payments to these claimants terminate on December 31, 1973, and the claimant's coal mine employer assumes responsibility to make continuing payments as if Part C and § 422 had applied (see (3), infra); and (3) under Part C, claims filed after December 31, 1973, are to be processed under an approved state workmen's compensation law and, absent such an approved plan, claims are to be filed with and adjudicated by the Secretary of Labor, and paid by the mine operators § 422. Under that provision an operator, who is entitled to a hearing in connection with these claims, is liable for benefits with respect to death or total disability due to pneumoconiosis arising out of employment in a mine for which the operator is responsible, the operator's liability covering the period from January 1, 1974, to December 30, 1981. Payments for benefits under Part C are to the same category of persons (a miner or certain survivors) and in the same amounts as under Part B. A miner is "totally disabled" and thus entitled to compensation "when pneumoconiosis prevents him from engaging in gainful employment requiring the skills and abilities comparable to those of any employment in a mine or mines in which he previously engaged with some regularity and over a substantial period of time," § 402(f). The Act prescribes several "presumptions" for use in determining compensable disability: Under § 411(c)(3) a miner shown by X-ray or other clinical evidence to be afflicted with complicated pneumoconiosis (the disease's incurable and final stage) is "irrebuttably presumed" to be totally disabled due to the disease; if such a miner has died, it is irrebuttably presumed that he was totally disabled by the disease at the time of death, and that his death was due thereto. There are three rebuttable presumptions (none of which may, under § 413(b), be defeated solely by a chest X-ray): (1) if a miner with 10 or more years' mine employment contracts pneumoconiosis, it is presumed that the disease arose out of such employment, § 411(c)(1); (2) if he died from a respiratory disease it is presumed that death was due to pneumoconiosis, § 411(c)(2); (3) if a miner, or the survivor of a miner, with 15 or more years' underground coal mine employment is able, despite the absence of clinical evidence of complicated pneumoconiosis, to demonstrate a totally disabling respiratory or pulmonary impairment, it is presumed that the total disability is attributable to the disease, that the miner was totally disabled thereby when he died, and that death was due to the disease, § 411(c)(4), and the final sentence of that provision specifies that "(t)he Secretary may rebut (this latter) presumption only by establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine." A number of operators brought this suit claiming that the Act is unconstitutional under the Due Process Clause of the Fifth Amendment insofar as it requires benefit payments with respect to miners who left mine employment before the Act's effective date; that the statutory definitions, presumptions, and limitations on rebuttal evidence unconstitutionally impair the operator's ability to defend against benefit claims; and that certain regulations promulgated by the Secretary of Labor regarding the apportionment of liability for benefits among operators are inconsistent with the Act and unconstitutional. The District Court upheld each challenged provision as constitutional, with two exceptions: (1) It held § 411(c)(3) unconstitutional as an unreasonable and arbitrary legislative finding of total disability "in terms other than those provided by the Act as standards for total disability." (2) Reading the evidence limitation on rebuttal in § 411(c)(4) to apply to an operator's defense in a § 415 transition-period case, the court held the limitation arbitrary and unreasonable in not permitting a rebuttal showing that the case of pneumoconiosis afflicting the miner was not disabling. And, taking the provision to mean that an operator may defend against liability only on the ground that pneumoconiosis did not arise out of employment in any coal mine (rather than in a coal mine for which the operator was responsible) the District Court found the provision an arbitrary and unreasonable limitation on rebuttal evidence relevant and proper under § 422(c). The court enjoined the Secretary of Labor from seeking to apply the two provisions thus found unconstitutional. Held:
1. This Court's summary affirmance in National Independent Coal Operators Assn. v. Brennan, 419 U.S. 955, did not foreclose the District Court's rulings regarding §§ 411 (c) (3) and (4), which were not before the Court on that appeal. P. 14.
2. The challenged provisions do not violate the Due Process Clause of the Fifth Amendment. Pp. 14-38.
(a) The Clause does not bar requiring an operator to provide compensation for a former employee's death or disability due to pneumoconiosis arising out of employment in its mines, even if the former employee terminated his employment in its mines before the Act was passed. Retrospective application of the Act in this manner can be justified as serving to spread costs in a rational manner by allocating to the operator an actual cost of its business, whose avoidance might be thought to have enlarged the operator's profits. Railroad Retirement Board v. Alton R. Co., 295 U.S. 330, distinguished. Pp. 14-20, 24-27.
(b) Though the operators contend that the § 402 (f) definition of total disability is arbitrary because former miners who might be employable in other lines of work are compensated, a miner disabled under § 402 (f)'s standards has suffered health impairment, and has been rendered unable to perform the work to which he has adapted himself, factors which afford a rational basis for compensation. P. 21.
(c) The effect of § 411 (c) (3)'s "irrebuttable presumption" of total disability--to establish entitlement where a miner is clinically diagnosable as extremely ill with pneumoconiosis arising out of coal mine employment--is clearly permissible, and the provision, being part of a statute regulating purely economic matters, is not rendered invalid by Congress' choice of statutory language. Pp. 22-24.
(d) The presumptions in § 411 (c) (1) and (2) are valid because there is a "rational connection between the fact proved and the ultimate fact presumed," Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 43 . In view of the medical evidence before Congress indicating the noticeable incidence of pneumoconiosis in cases of miners with 10 years' mine employment, it was not "purely arbitrary" for Congress to select the 10-year figure as a reference point for the presumptions; nor are the 10-year presumptions arbitrary because they fail to account for varying degrees of exposure. Pp. 27-30.
(e) The 15-year durational basis of the presumption in § 411 (c) (4) is likewise unassailable, particularly in light of medical testimony in the Senate Hearings on the 1969 Act. Pp. 30-31.
(f) Congress had evidence showing doubts about the reliability of negative X-ray evidence as indicating the absence of the disease. That through its adoption of § 413 (b) Congress ultimately resolved those doubts in the disabled miner's favor does not render that provision arbitrary. Pp. 31-34.
(g) The District Court improperly invalidated the limitation on evidence contained in § 411 (c) (4) because the limitation is inapplicable to operators and applies only to the Secretary of HEW. Thus the Act does not restrict the evidence with which an operator may rebut the § 411 (c) (4) presumption. Pp. 34-37.
385 F. Supp. 424, affirmed in part; reversed in part; vacated and remanded in part.
Deputy Solicitor General Wallace argued the cause for appellants in No. 74-1302 and for appellees in No. 74-1316. With him on the brief were Solicitor General Bork, Assistant Attorney General Lee, Ronald R. Glancz, and Laurie Streeter.
R. R. McMahan argued the cause for appellees in No. 74-1302 and for appellants in No. 74-1316. With him on the briefs was James M. Graves.
Guy Farmer and William A. Gershuny filed a brief for the Bituminous Coal Operators' Assn., Inc., as amicus curiae.
Marshall, J., delivered the opinion of the Court, in which Brennan, White, and Blackmun, JJ., joined; in all but Part IV of which Powell, J., joined; and in all but Part V-D of which Stewart and Rehnquist, JJ., joined. Powell, J., filed an opinion concurring in part and concurring in the judgment in part. Stewart, J., filed an opinion concurring in part and dissenting in part, in which Rehnquist, J., joined. Burger, C. J., concurred in the judgment. Stevens, J., took no part in the consideration or decision of the case.

#### Notes

* ↑ . Together with No. 74-1316, Turner Elkhorn Mining Co. et al. v. Usery, Secretary of Labor, et al., also on appeal from the same court.
↑ . Joseph A. Yablonski and Willard P. Owens filed a brief for the United Mine Workers of America as amicus curiae urging reversal in No. 74-1302 and affirmance in No. 74-1316.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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