NATIONAL MIN. ASS'N v. CHAO

The opinion of the court was delivered by: Sullivan, District Judge.

INTRODUCTION

Plaintiffs commenced this action for declaratory judgment and injunctive relief and request this Court to enjoin the enforcement of final regulations issued by the defendants on December 20, 2000. The regulations are published at 65 Federal Register 79920-80107 under Title IV of the Federal Coal Mine Health and Safety Act of 1969 as amended, 30 U.S.C. § 901-945, also known as the Black Lung Benefits Act("BLBA"). The BLBA provides benefits "to coal miners who are totally disabled due to pneumoconiosis and to the surviving dependents of miners whose death was due to such disease." 30 U.S.C. § 901 (a).

The subject regulations are organized into four principal parts. The first part, 20 C.F.R. Part 718, sets forth the medical proof necessary to establish entitlement to black lung benefits. The second part, 20 C.F.R. Part 722, prescribes criteria for determining whether a state's workers' compensation program provides "adequate coverage," 30 U.S.C. § 931 (b), and therefore provides the exclusive means of black lung recovery for miners in that state. The third part, 20 C.F.R. Part 725, sets forth the procedures for adjudicating claims. And the fourth part, 20 C.F.R. Part 726, establishes guidelines for the insurance or self-insurance obligations imposed on coal mine operators by the BLBA.

Pending before the Court are plaintiffs' motion for summary judgment and defendants' motion to dismiss or, in the alternative, for summary judgment. Also pending is intervenors' motion for summary judgment, which does not support defendants' motion to dismiss, but does support defendants' defense of the challenged regulations. The defendants and intervenors have also filed motions to strike certain affidavits attached to plaintiffs' motion for summary judgment as outside the administrative record. Plaintiffs have also filed a motion to vacate and remand the proceedings, based on plaintiffs' contention that the current administration does not support the policy choices behind the rules. Finally, the Coal Mining Compensation Rating Bureau of Pennsylvania filed a motion to appear as amicus curiae. On June 18, 2001, the Court granted plaintiffs' Motion for Partial Voluntary Dismissal of Claims. Count I paragraph 23(q), Count V paragraph 40(r), and Count VIII paragraph 52 (f) of plaintiffs' amended complaint were dismissed without prejudice. Additionally, plaintiffs' did not provide any discussion or only cursory argument in their pleadings regarding several of the rules challenged in their amended complaint. Although plaintiffs' argue that they have not abandoned any claims, those for which they provide only cursory argument are deemed conceded.*fn1 See, e.g., Washington Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 39 (D.C.Cir. 1997).

Upon consideration of the pending motions, the points and authorities in support of and in opposition thereto, the arguments of counsel, and for the reasons set forth herein, the Court will DENY plaintiffs' motion for summary judgment and defendants' motion to dismiss the complaint on jurisdictional grounds. Further, the Court will GRANT intervenors' and defendants' motions for summary judgment defending the challenged regulations.

THE PARTIES

Plaintiffs are the National Mining Association, the national trade association for the U.S. mining industry, the Old Republic Insurance Company, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, and American Mining Insurance Company, commercial insurance carriers, the Ohio Valley Coal Company, an underground coal operator, and the American iron & Steel Institute, a trade association whose members have or had financial interests in coal mines.

Defendants are Elaine L. Chao, Secretary of Labor, and the United States Department of Labor ("DOL"). The Secretary of Labor is authorized by the BLBA to issue regulations governing the administration of the BLBA. The DOL has principal responsibility for the implementation and administration of the BLBA.

Intervenors are the United Mine Workers of America, a labor union, the National Black Lung Association, an advocacy group representing current and retired coal miners, Mike South, a former coal miner, a clinic that provides screening, diagnostic and other services to patients with black lung disease, and several current or prospective claimants for benefits.

BACKGROUND

I. Facts Giving Rise to this Litigation

On January 22, 1997, the DOL issued a notice of proposed revisions to the BLBA regulations. 62 Fed. Reg. 3338-3435 (Jan. 22, 1997) (Admin. Record Doc. No. 00001). The DOL allowed interested parties until March 24, 1997 to file comments. That deadline was extended twice. 64 Fed. Reg. 54966 (Oct. 8, 1999) (Admin. Record Doc. No. 00345). The comment period closed on August 21, 1997. At that time, the DOL had received almost 200 comments. The DOL also held two public hearings at which more than 50 people testified; the comments and testimony came mainly from coal mine operators, the National Mining Association, representatives of the insurance and claims-servicing industries, coal miners and their survivors, the National Black Lung Association, the United Mine Workers of America, the American Bar Association, and physicians and attorneys who practice in the field of black lung compensation. Id.

On October 8, 1999, after reviewing the comments and seeking guidance from the National Institute for Occupational Safety and Health ("NIOSH")*fn2 (Admin. Record Doc. Nos. 00327 and 00333), the DOL issued a second notice. 64 Fed. Reg. 54966-55072 (Oct. 8, 1999) (Admin. Record Doc. No. 00345). The second notice revised some of the earlier proposed regulations and included an initial analysis under the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq. See id. at 55006-09. The DOL allowed interested parties until December 7, 1999 to file comments. That deadline was extended to January 6, 2000. 64 Fed. Reg. 62997 (Nov. 18, 1999) (Admin. Record Doc. No. 00531). The DOL received 37 comments during the second comment period. Id.

On December 20, 2000, after considering the comments and testimony, the advice of NIOSH, and the reports of three expert consultants, the DOL issued final rules and a Final Regulatory Flexibility Analysis. 65 Fed. Reg. 79920-80107 (Dec. 20, 2000) (Admin. Record Doc. No. 01071). On January 19, 2001, the new rules went into effect. Id. at 79920.

On December 22, 2000, plaintiffs filed a complaint for declaratory and injunctive relief challenging several of the final rules. On January 26, 2001, plaintiffs filed an amended complaint, along with a motion for preliminary injunction to stay the effective date of the rules. On February 9, 2001, the Court entered a Preliminary Injunction Order with the consent of defendants and plaintiffs, and "without objection" of the intervenors.

II. Black Lung Disease

Pneumoconiosis is commonly known as "black lung disease." It is "a dreadful and insidious disease which interferes with the respiratory functions of its victims," and "slowly and progressively makes the very act of breathing more and more difficult." Curse v. Dir. OWCP, 843 F.2d 456, 457 (11th Cir. 1988) (quoting 124 Cong. Rec. S2,333 (daily ed. Feb. 6, 1978) (statement of Sen. Williams)). It "affects a high percentage of American coal workers with severe, and frequently crippling, chronic respiratory impairment" caused by "long-term inhalation of coal dust." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 6, 96 S.Ct. 2882, 2888, 49 L.Ed.2d 752 (1976). As the disease advances, it may cause physical disability and ultimately "may induce death by cardiac failure, and may contribute to other causes of death." Id. at 7, 96 S.Ct. 2882.

III. Statutory and Regulatory Background

Under the BLBA, the administrative process begins when a miner or his survivor files a claim with the District Director in the DOL's Office of Workers' Compensation Programs ("OWCP"). The District Director investigates the claim, notifies the interested parties, and makes a preliminary determination as to whether the claimant is eligible for benefits and which mine employer should be held responsible. 20 C.F.R. § 725.301-725.422. Coal mine operators are primarily responsible for paying these claims. 30 U.S.C. § 932 (a). However, if a mine operator responsible for a victim's disability or death cannot be identified or the responsible operator fails to pay the benefits awarded, the claim is paid from the Black Lung Disability Trust Fund ("Trust Fund"), which is financed by an excise tax on coal sales. 30 U.S.C. § 932, 934; 26 U.S.C. § 4121, 9501(d)(1).*fn3

Either party may appeal the decision of the District Director and request a hearing before an Administrative Law Judge ("ALJ"). 20 C.F.R. § 725.450-725.480. The ALJ's decision may be appealed by either party to the DOL's Benefits Review Board, 20 C.F.R. § 725.481, and ultimately to the United States Court of Appeals for the circuit in which the injury occurred. 33 U.S.C. § 921 (c); 20 C.F.R. § 725.482.

JURISDICTION

The BLBA does not designate the forum where a judicial challenge to the facial validity of regulations promulgated under it may be resolved. Plaintiffs and intervenors argue that jurisdiction to resolve such challenges vests in this Court under 28 U.S.C. § 1331.

Defendants contend that facial challenges to the rules are inextricably intertwined with benefits determinations. Thus, defendants maintain that this Court does not have jurisdiction over plaintiffs' claims,*fn4 because exclusive jurisdiction to review black lung benefits determinations vests with the federal courts of appeals. In support of this argument, defendants rely primarily on the Supreme Court's decision in Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994). Defendants argue that Thunder Basin holds that when it is discernible from a statute's language, structure, purpose, and legislative history that the review scheme prescribed by that statute was intended by Congress to be exclusive, that scheme must not be circumvented. Id. at 207-16, 114 S.Ct. 771.

In Thunder Basin, the Supreme Court held that the statutory review scheme of the Federal Mine Safety and Health Amendments Act of 1977 (the Mine Act), 30 U.S.C. § 801 et seq, revealed a congressional intent to preclude district courts from exercising subject-matter jurisdiction over pre-enforcement challenges to the Act. 510 U.S. at 202, 114 S.Ct. 771. Thunder Basin involved a challenge to an instruction issued by the Mine Safety and Health Administration to a mine operator. Rather than seek administrative review, the mine operator sought a pre-enforcement injunction directly from the district court. Id. at 204-05, 114 S.Ct. 771.

The Mine Act provides for review of all violations of its regulations by an ALJ id. at 209, 114 S.Ct. 771 followed by review by the Federal Mine Safety and Health Review Commission, and then review by a court of appeals. Id. at 204, 207-08, 114 S.Ct. 771. The Mine Act's review scheme applies to violations of "any mandatory health or safety standard, rule, order, or regulation." 510 U.S. at 207, 114 S.Ct. 771 (citation omitted).

The Supreme Court held that although the Mine Act is silent on the question of pre-enforcement claims, "the Mine Act's comprehensive enforcement structure, combined with the legislative history's clear concern with channeling and streamlining the enforcement process, establishes a "fairly discernible' intent [by Congress] to preclude district court review" over ordinary challenges under the Act. Id. at 216, 114 S.Ct. 771 (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351, 104 S.Ct. 2450, 2457, 81 L.Ed.2d 270 (1984)). However, Thunder Basin did not involve a challenge to rulemaking under the Administrative Procedure Act ("APA").

Defendants argue that in view of the similarities between the review schemes of the BLBA and the Mine Act, Thunder Basin precludes this Court's jurisdiction over all of plaintiffs' claims. Defendants are correct that jurisdiction to review black lung benefits determinations vests with the courts of appeals.*fn5 That does not necessarily mean, however, that this Court lacks jurisdiction over facial challenges to rules promulgated under the BLBA and the APA. The district court has expressly found, albeit prior to Thunder Basin, that it possessed jurisdiction to review an earlier challenge to black lung regulations under the BLBA. See Nat'l Indep. Coal Operator's Ass'n v. Brennan, 372 F. Supp. 16 (D.D.C. 1974), aff'd, 419 U.S. 955, 95 S.Ct. 216, 42 L.Ed.2d 172 (1974).

Moreover, D.C. Circuit precedent, following Thunder Basin, interpreting the OSH Act and its regulatory scheme is controlling. The OSH Act provides, that "any person adversely affected by a standard issued under this section may . . . file a petition challenging the validity of such standard with the United States courts of appeals." (emphasis added). 29 U.S.C. § 655 (f). In Workplace Health & Safety Council v. Reich, 56 F.3d 1465 (D.C.Cir. 1995), which involved a challenge to DOL rulemaking under the OSH Act, the Circuit held that since the challenged rule was a regulation, rather than a standard, the district court had subject-matter jurisdiction. "[A] party seeking to challenge a standard . . . may petition a court of appeals, but a party seeking to challenge a regulation must seek review in the District Court." Id. 1467. In reaching this conclusion, the Circuit noted that "[a]bsent some express statutory directive to the contrary, persons seeking review of agency action first go to district court [under APA § 703] rather than to a court of appeals Id. (quoting Int'l Brotherhood of Teamsters v. Pena, 17 F.3d 1478, 1481 (D.C.Cir. 1994)).*fn6 The D.C. Circuit recently reaffirmed the principle of law that the APA provides a default standard of' review where a statute does not otherwise provide a standard. See Al-Fayed v. Central Intelligence Agency, 254 F.3d 300, 2001 WL 788094 (July 13, 2001) (citing Workplace Health, 56 F.3d at 1467).

The BLBA provides an explicit scheme of judicial review only for "orders" without mentioning the term "rule" or "regulation." 33 U.S.C. to 921. Although neither the BLBA nor the Longshore Act contain definitions of the terms "rule" or "order," the APA provides concise definitions of' each: "Order" is defined as "the whole or part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing." APA § 551(6) (emphasis added); "Rule" is defined as "the whole or a part of an agency statement of general or particular effect designed to implement, interpret, or describe law or policy . . ." APA § 551(4). The APA makes a sharp distinction between these two terms.

Since the jurisdictional scheme of the BLBA pertains to compensation orders, rather than rules, and contains no express statutory directive depriving district courts of jurisdiction to review agency rulemaking under the APA, this Court concludes that jurisdiction properly vests in the District Court to consider plaintiffs' challenges to the new black lung regulations.

STANDARD OF REVIEW

Summary judgment is appropriate when "the pleadings and evidence `show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Fed.R.Civ.P. 56(c). See Beverly Enter., Inc. v. Herman, 119 F. Supp.2d 1, 3-4 (D.D.C. 2000).

Dismissal for failure to state a claim is appropriate when it is established "beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

The Court is bound by a highly deferential standard when reviewing an agency s action under the APA. The Court shall "not [] substitute its judgment for that of the agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Rather, the Court must evaluate whether the agency's decision was "based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. See also Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983). An agency's action must be upheld if the agency's reasons and policy choices "conform to "certain minimal standards of rationality.'" Small Refiner Lead Phase-Down Task Force v. EPA., 705 F.2d 506, 521 (D.C.Cir. 1983) (citation omitted). When the evidence can reasonably be interpreted to support the agency's action, the Court must uphold that action, "despite the fact that the same evidence is susceptible of another interpretation." Public Citizen v. Tyson, 796 F.2d 1479, 1495 (D.C.Cir. 1986). Generally, plaintiffs bear a heavy burden of demonstrating the invalidity of agency regulations. Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C.Cir. 1976) (en banc).

The Court must afford an agency even greater deference when the agency's decision rests on an evaluation of complex scientific data within the agency's technical expertise. In this circumstance, a reviewing court "must generally be at its most deferential." Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 2255, 76 L.Ed.2d 437 (1983). See also Troy Corp. v. Browner, 120 F.3d 277, 283 (D.C.Cir. 1997). "An agency making fact-based determinations in its own field of expertise, particularly where those determinations are wrapped up with scientific judgments, must be permitted `to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.'" Downer v. United States, 97 F.3d 999, 1002 (8th Cir. 1996) (quoting Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989)). Where an agency's decision turns on issues requiring the exercise of technical or scientific judgment, "it is not for the judicial branch to undertake comparative evaluations of conflicting scientific evidence," Natural Res. Def Council v. EPA, 824 F.2d 1211, 1216 (D.C.Cir. 1987). The Court's role is simply to exercise its "narrowly defined duty of holding agencies to certain minimal standards of rationality." Ethyl Corp., 541 F.2d at 36.

An agency's interpretation of a statute it is charged with implementing is entitled to deference so long as its interpretation is reasonable and not precluded by an unambiguous statutory command to the contrary. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). See also Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 1662, 146 L.Ed.2d 621 (2000); Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 19, 120 S.Ct. 1084, 1097, 146 L.Ed.2d 1 (2000). See generally, Nat'l R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 417, 112 S.Ct. 1394, 1401, 118 L.Ed.2d 52 (1992) ("[j]udicial deference to reasonable interpretations by an agency of a statute that it administers" is a "dominant, well-settled principle of federal law").

It is not difficult for an agency to establish that its statutory construction "reflects a reasonable interpretation of the law." Holly Farms Corp. v. NLRB, 517 U.S. 392, 409, 116 S.Ct. 1396, 1406, 134 L.Ed.2d 593 (1996). The Court must uphold an agency's interpretation, even if that interpretation is not the only one the agency permissively could have adopted. See Rust v. Sullivan, 500 U.S. 173, 184, 111 S.Ct. 1759, 1767, 114 L.Ed.2d 233 (1991) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778 n. 11). The agency's construction need not be "the best," United States v. Haggar Apparel Co., 526 U.S. 380, 394, 119 S.Ct. 1392, 143 L.Ed.2d 480 (1999) (quoting Atlantic Mut. Ins. Co. v. Comm'r of Interval Revenue, 523 U.S. 382, 389, 118 S.Ct. 1413, 140 L.Ed.2d 542 (1998)), nor "the most natural" interpretation of the statute. Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702, 111 S.Ct. 2524, 2537, 115 L.Ed.2d 604 (1991). However, the agency's interpretation must not be "flatly contradicted" by the plain language of the statute. IRS v. Fed. Labor Relations Auth., 494 U.S. 922, 928, 110 S.Ct. 1623, 108 L.Ed.2d 914 (1990).

THE CHALLENGED REGULATIONS

20 C.F.R. § 718.104: This rule requires an ALJ to consider the nature and duration of the relationship between the treating physician and the miner when evaluating a treating physician's report. After considering the credibility of the physician's opinion in light of its reasoning, documentation, other relevant evidence, and the record as a whole, an ALJ may give the treating physicians opinion controlling weight.

Plaintiffs claim that this section is impermissibly retroactive, violates the Long-shore Act, 33 U.S.C. § 919 (d). constitutes illegal burden — shifting, is arbitrary and capricious, treats parties unequally, and violates their due process rights.

20 C.F.R. § 718.201: This rule redefines pneumoconiosis to include both clinical and legal pneumoconiosis. "Legal" pneumoconiosis includes any chronic lung disease or impairment "arising out of coal mine employment." This section also recognizes that pneumoconiosis is a "latent and progressive disease" that may only become detectable after cessation of exposure to coal dust.

Plaintiffs claim that this section is impermissibly retroactive, violates the Long-shore Act, 33 U.S.C. § 902, creates an illegal burden-shifting presumption, denies plaintiffs a "Full and Fair Hearing," is arbitrary and capricious, treats parties unequally, was promulgated in violation of 5 U.S.C. § 553, 601-12, and violates their due process rights.

20 C.F.R. § 718.202: This rule defines the standards used for determining the existence of pneumoconiosis, which include a diagnostic chest x-ray. Even with a negative x-ray, however, a determination that pneumoconiosis exists may be made if the physician's diagnosis of the disease is supported by objective medical evidence and reasoned medical opinion.

Plaintiffs claim that this section is arbitrary and capricious.

20 C.F.R. § 718.204: This rule defines causation for total disability due to pneumoconiosis. It establishes that in determining whether' a miner is totally disabled due to pneumoconiosis, any non-pulmonary or non-respiratory condition or disease that caused an independent disability shall not be considered.

Plaintiffs claim that this section is impermissibly retroactive, violates the BLBA 30 U.S.C. § 902, 923, was promulgated in violation of 5 U.S.C. § 553, 601-12, denies them a "Full and Fair Hearing," is arbitrary and capricious, treats parties unequally, and violates their due process rights.

20 C.F.R. § 718.205 (c)(5): This rule provides that for claims filed after January 1, 1982, pneumoconiosis constitutes a "substantially contributing cause" of death, if it hastened the death of the miner.

Plaintiffs claim that this section is impermissibly retroactive, violates the Long-shore Act, 33 U.S.C. § 919 (d), the BLBA 30 U.S.C. § 901, was promulgated in violation of 5 U.S.C. § 553, 601-12, creates an illegal burden-shifting presumption, is arbitrary and capricious, treats parties unequally, and violates their due process rights.

20 C.F.R. § 718.205 (d): This rule requires that claims filed before January 1, 1982, shall be considered on an expedited basis. It also provides that claimants bear the initial burden to develop medical evidence to establish death by pneumoconiosis, and will prevail unless the weight of evidence establishes that the miner's death was not due to pneumoconiosis.

Plaintiffs claim that this subsection is impermissibly retroactive, violates the Longshore Act, 33 U.S.C. § 919 (d), the BLBA 30 U.S.C. § 901, was promulgated in violation of 5 U.S.C. § 553, 601-12, creates an illegal burden-shifting presumption, is arbitrary and capricious, treats parties unequally, and violates their due process rights.

20 C.F.R. § 718.301: This rule provides that a miner's length of employment can be presumed if the miner worked in one or more mines for the number of years required. The length of coal mine work-history must be computed pursuant to 20 C.F.R. § 725.101 (a)(32).

Plaintiffs claim that this section is impermissibly retroactive and violates their due process rights.

20 C.F.R. § 718.304: This rule creates a presumption of total disability or death due to pneumoconiosis when the disease is demonstrated by x-ray, meets international classification standards, or is diagnosed by biopsy upon finding "massive lesions" in the lungs, or by other reasonable means.

Plaintiffs claim that this section is arbitrary and capricious.

20 C.F.R. § 725.2 (c): This rule provides that 20 C.F.R. § 725 applies to all claims paid or filed on or after January 19, 2001, and to all claims pending on that date with the exception of a number of listed sections. "This rule defines a pending claim as any claim not finally denied more than one year prior to January 19, 2001.

Plaintiffs claim that this section is impermissibly retroactive, exceeds the DOL's scope of authority, and violates their due process rights.

20 C.F.R. § 725.4 (a): This rule applies 20 C.F.R. § 718 to claims filed before March 31, 1980. All claims filed prior to April 1, 1980 fall under 20 C.F.R. § 727 (c).

Plaintiffs claim that this section is impermissibly retroactive and violates their due process rights.

20 C.F.R. § 725.101 (a)(6): This rule expands the definition of "benefits" from those payable under § 514 or Title IV, Part C, to include "any expenses related to medical examination and testing" authorized by the designated director.

Plaintiffs claim that this section is impermissibly retroactive, violates their due process rights, and violates the Longshore Act, 33 U.S.C. § 928.

20 C.F.R. § 725.101 (a) (29): This rule defines "total" and "partial" disability as provided in 20 C.F.R. § 718.

Plaintiffs claim that this section is impermissibly retroactive and violates their due process rights.

20 C.F.R. § 725.101 (a) (31): This rule defines "workers' compensation law" as any law providing for payment to an employee from an employer for an occupational disability. Payments funded wholly from the general revenue are exempted from the definition of workers' compensation payments under this section.

Plaintiffs claim that this section is impermissibly retroactive, violates their due process rights, and violates the BLBA, 30 U.S.C. § 932.

20 C.F.R. § 725.101 (a) (32): This rule provides that a "year" is a period of 365 or 366 days, or "partial periods totaling one year during which a miner worked in or around a coal mine for at least 125 working days."

Plaintiffs claim that this subsection is impermissibly retroactive and violates their due process rights.

20 C.F.R. § 725.103: This rule provides that any party raising an allegation bears the burden of proving facts in support of it, except as otherwise provided in this chapter.

Plaintiffs claim that this section is impermissibly retroactive, violates the Longshore Act, 33 U.S.C. § 919 (d), and violates their due process rights.

20 C.F.R. § 725.202 (b): This rule creates a presumption that coal mine construction and transportation workers were exposed to coal dust during all periods of employment in or around a coal mine or a preparation facility. The presumption can be rebutted by evidence showing the claimant was not exposed to coal mine dust, or did not work regularly in or around a mine or preparation facility

Plaintiffs claim that this section is impermissibly retroactive, arbitrary and capricious, and violates their due process rights.

20 C.F.R. § 725.204: This rule describes the criteria for determining if a claimant qualifies for augmented benefits as a miner s spouse. The new rule deleted a provision in the previous regulation, precluding augmentation for more than one spouse at the same time.

Plaintiffs claim that this section is impermissibly retroactive and violates their due process rights.

20 C.F.R. § 725.209: This rule provides the criteria for determining if a miner's child qualifies for augmentation of benefits. A child is eligible if: (1) unmarried and less than eighteen years of age, (2) eighteen or older and a full-time student, or (3) eighteen or older with a disability.

Plaintiffs claim that this section is impermissibly retroactive and violates their due process rights.

20 C.F.R. § 725.212 (b): This rule describes the conditions under which a surviving or divorced spouse may be eligible for benefits and that concurrent recovery by more than one qualified spouse is no longer precluded under this section.

Plaintiffs claim that this subsection is impermissibly retroactive, exceeds the scope of the DOL's authority, and violates their due process rights.

20 C.F.R. § 725.213 (c, ): This rule limits the duration of a spouse or surviving spouse's entitlement to benefits. The newly added subsection provides that spouses may qualify for reentitlement after termination of benefits, if their claims meet the requirements under 20 C.F.R. § 725.212.

Plaintiffs claim that this section is impermissibly retroactive, exceeds the scope of the DOL's authority, and violates their due process rights.

20 C.F.R. § 725.214 (d): This rule provides the criteria for determining when a claimant is a surviving spouse. A surviving spouse is anyone who went through a marriage ceremony with a miner, even if that ceremony is invalid due to a legal impediment, so long as the parties did not know it was invalid, and were living together at the time of the miner's death. Recovery under this subsection is no longer precluded if another claimant qualifies as a spouse under a different subsection.

Plaintiffs claim that this section is impermissibly retroactive, exceeds the scope of the DOL's authority, and violates their due process rights.

20 C.F.R. § 725.219 (c)(d): This rule describes the criteria for determining the duration of entitlement to benefits for a miner's child. Subsection (c) provides that a child whose benefits terminated at age eighteen or later may become reentitled if unmarried, a full-time student, and under twenty-three years of age. Subsection (d) allows a child whose benefits terminated due to a marriage to reapply if the marriage ends, and § 725.218 requirements are met.

Plaintiffs claim that these subsections are impermissibly retroactive, exceed the scope of the DOL's authority, and violate their due process rights.

20 C.F.R. § 725.309(d): This rule controls the effect of a prior denial of benefits on a new claim filed more than a year after denial of the previous claim. It provides that such claims must be denied unless the claimant demonstrates a change in a condition of entitlement.

Plaintiffs claim that this subsection is impermissibly retroactive, exceeds the scope of the DOL's authority, creates an illegal burden-shifting presumption, denies them a "Full and Fair Hearing," is arbitrary and capricious, treats parties unequally, violates their due process ...