Usery v. Turner Elkhorn Mining Company/Concurrence-dissent Stewart

While in all other respects joining the opinion and judgment of the Court, I cannot accept the Court's conclusion, ante, at 36-37, that the limitation on rebuttal evidence in § 411 (c) (4), 30 U.S.C. § 921 (c) (4) (1970 ed., Supp. IV), is inapplicable to "transition" determinations under § 415 insofar as those determinations bind operators. Section 415 (a) (5), as set forth in 30 U.S.C. § 925 (a) (5) (1970 ed., Supp. IV), provides that an "operator...shall be bound by the determination of the Secretary of Labor [on a transition] claim as if the claim had been filed pursuant to part C of this subchapter and section 932 of this title had been applicable to such operator." As the Court correctly observes, the critical question is thus whether the § 411 (c) (4) limitation would apply "if the claim had been filed pursuant to part C...and section 932...."

The Court reads the "plain language" of § 411 (c) (4), and in particular the reference to "the Secretary [of Health, Education, and Welfare]," to mean that "the limitation applies only to 'the Secretary' and not to an operator seeking to avoid liability under § 415 [30 U.S.C. § 925] or § 422 [30 U.S.C. § 932]." Ante, at 35. This reading, the Court concludes, is "fortified by the legislative history" and in particular by the "Senate Report on § 411 (c) (4) [which] specifically states that the limitation on rebuttal applies to the Secretary of Health, Education, and Welfare, but nowhere suggests that it binds an operator." Ibid.

The Court's analysis omits any consideration of the effect of § 430, as set forth in 30 U.S.C. § 940 (1970 ed., Supp. IV), which provides as follows:

"The amendments made by the Black Lung Benefits Act of 1972 to part B of this subchapter shall, to the extent appropriate, also apply to [Part C]: Provided, That for the purpose of determining the applicability of the presumption established by section 921 (c) (4) of this title to claims filed under this part, no period of employment after June 30, 1971, shall be considered in determining whether a miner was employed at least fifteen years in one or more underground mines."

Since the limitation on rebuttal evidence in § 411 (c) (4) was created by the "amendments made by the Black Lung Benefits Act of 1972," it would seem to follow that the limitation applies to Part C determinations. This inference is reinforced by the Senate Report, which stated:

"New section 430 requires that amendments to part B be applied, wherever appropriate, to part C....

"Questions were raised during the Committee deliberations over whether the amendments to part B would automatically be applicable, where appropriate, to part C.

.....

"Although it would appear clear that the same standards are to govern, the Committee concluded that it would be best to so specify.

"It is contemplated by the Committee that the applicable portions of following sections of part B, as amended, would apply to part C: section 411, section 412 (except the last sentence of subsection (b) thereof), section 413, and section 414." S. Rep. No. 92-743, p. 21 (1972).

See also id., at 33.

The only play in the tight linkage of Part C to the amendments to Part B is that afforded by the proviso in § 430 and by the phrase "to the extent appropriate" which appears in that section. The proviso does not remove the rebuttal limitation, but it does alter § 411 (c) (4)'s allocation of the burden of proof in another crucial respect: It limits the period of employment which may be considered for purposes of determining the applicability of the presumption. The presence of the proviso is relevant in two respects. First, it underscores the basic applicability to Part C determinations of the § 411 (c) (4) rebuttal presumption. Second, it demonstrates that Congress knew how to place a significant limitation on the applicability of that presumption when it chose to do so.

The care and precision which Congress used in drafting this qualifying language bears on the propriety of reading the phrase "to the extent appropriate" as obliquely qualifying the applicability of the rebuttal limitation to Part C determinations. That limitation is part and parcel of an elaborate reallocation of the burden of proving disability resulting from pneumoconiosis. Under prior Social Security procedure "if an X-ray [did] not show totally disabling pneumoconiosis, no further processing of a claim [was] allowed. Thus, any further evidence of disability [was] not allowed if the X-ray show[ed] negative." S. Rep. No. 92-743, supra, at 11. This heavy reliance on X-ray evidence had unfortunate consequences for coal miners because of the inability of X-ray examinations to detect pneumoconiosis in some instances. Congress responded to this particular problem by

"prohibiting denial of a claim solely on the basis of an X-ray, by providing a presumption of pneumoconiosis for miners with respiratory or pulmonary disability where they have worked 15 years or more in a coal mine, and by requiring the Social Security Administration to use tests other than the X-ray to establish the basis for a judgment that a miner is or is not totally disabled due to pneumoconiosis." Ibid.

The 15-year rebuttable presumption embodied in § 411 (c) (4) was perhaps the most significant feature of Congress' response. Based in part on testimony of the Surgeon General that "[f]or work periods greater than 15 years underground, there was a linear increase in the prevalence of the disease with years spent underground." S. Rep. No. 92-743, supra, at 13, the presumption embodied a congressional decision to "giv[e] the benefit of the doubt," id., at 11, to a specific class of claimants totally disabled by respiratory or pulmonary impairments who could not prove by X-ray evidence that the impairment resulted from pneumoconiosis. The presumption was rebuttable only if the respondent could show either 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." § 411 (c) (4), 30 U.S.C. § 921 (c) (4) (1970 ed., Supp. IV).

It is difficult to believe that Congress would have used the phrase "to the extent appropriate" in § 430 to withdraw the protection of the rebuttal limitation under Part C while retaining the rebuttable presumption of which it is an integral part. Such an interpretation is inconsistent with the care Congress displayed in drafting the § 430 proviso. Moreover, it leads necessarily to other improbable results. The Court's approach, for instance, necessarily implies that Congress extended the benefit of the § 411 (c) (4) presumption to "surface, as well as underground, miners [in specified circumstances]," S. Rep. No. 92-743, supra, at 2, with the intention that the protection would lapse as soon as Part C came into play. The relevant sentence in § 411 (c) (4) states that "[t]he Secretary [of Health, Education, and Welfare] shall not apply all or a portion of the requirement of this paragraph that the miner work in an underground mine where he determines that conditions of a miner's employment in a coal mine other than an underground mine were substantially similar to conditions in an underground mine." (Emphasis added.) If the operative principle is that provisions in § 411 (c) (4) which bind "the Secretary [of Health, Education, and Welfare]" are automatically "inappropriate" for Part C proceedings, then surface miners would be stripped of the benefits of § 411 (c) (4) as soon as the legislative scheme enters its transitional stage.

Moreover, the Court's reading of the statute is anomalous in terms of the overall structure of Part C. The primary goal of Congress in framing Part C was to transfer adjudicatory responsibilities over coal miners' pneumoconiosis claims to state workmen's compensation tribunals, but only if the state compensation law was found by the Secretary of Labor to provide "standards for determining death or total disability due to pneumoconiosis...substantially equivalent to...those standards established under part B of this subchapter...." § 421 (b) (2) (C), as set forth in 30 U.S.C. § 931 (b) (2) (C) (1970 ed., Supp. IV). One of the Part B standards is the rebuttal limitation in § 411 (c) (4). Thus, the Secretary of Labor would not be empowered to approve a state law which did not contain a "substantially equivalent" evidentiary limitation.

The delegation of adjudicatory responsibility to the Secretary of Labor under Part C was a backstop measure, intended to provide a forum for presentation of claims during any period after January 1, 1974, when a state workmen's compensation law was not included on the Secretary of Labor's list of state laws with provisions "substantially equivalent" to those in Part B. § 421 (a), 30 U.S.C. § 931 (a) (1970 ed., Supp. IV). See S. Rep. No. 92-743, supra, at 19-21. Since the very reason for withholding approval of a state law and providing an alternative federal forum is lack of "substantial equivalence" between the state-law provisions and the "standards established under part B," including the rebuttal limitation in § 411 (c) (4), it would be anomalous if the substitute federal forum could employ evidentiary rules which deviate substantially from those in Part B.

The statutory language and legislative history simply will not yield such an unlikely result. The phrase "to the extent appropriate" in § 430, 30 U.S.C. § 940 (1970 ed., Supp. IV), plainly refers to language in Part B which has no relevance to Part C, notably the language that specifies that "the Secretary [of Health, Education, and Welfare]" is to have certain adjudicative responsibilities. These are the references that are not "appropriate" under Part C, because Part C transfers adjudicative responsibilities to the States or, in the alternative, to the Secretary of Labor. The obvious purpose of the phrase "to the extent appropriate" is to accommodate minor linguistic variations resulting from this transfer of responsibility. Thus, the interaction of the phrase "to the extent appropriate" and the reference to "the Secretary" in the rebuttal limitation of § 411 (c) (4) does not render the entire limitation "inappropriate" to Part C proceedings; it merely renders the reference to "the Secretary" inappropriate under Part C.

It is significant that the Court's interpretation of § 411 (c) (4)'s rebuttal limitation is not urged or even suggested by any party to this suit. The Federal Parties' position is that the District Court erred by reading § 411 (c) (4) to foreclose a showing that would refute total disability. That position is clearly correct. The § 411 (c) (4) presumption comes into play only after the claimant establishes total disability. See § 411 (c) (4), 30 U.S.C. § 921 (c) (4) (1970 ed., Supp. IV) ("and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption..."). In addition, the District Court ruled that § 411 (c) (4) places upon a specific coal mine owner the burden of proving that the respiratory or pulmonary disease did not arise out of coal mine employment. The Federal Parties urge that this construction is erroneous, because it overlooks the fact that under § 422 (c), 30 U.S.C. § 932 (c), a specific operator can also defeat liability by showing that the disability did not arise, even in part, out of employment in his mine during the period when he operated it. Again, the Federal Parties are clearly correct. If the operator makes the § 422 (c) showing, then the § 411 (c) (4) presumption--and the rebuttal limitation--is irrelevant. Accordingly, I would reverse the District Court's ruling that the § 411 (c) (4) rebuttal limitation violates the Constitution.