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NATIONAL MIN. ASS'N v. CHAO
August 9, 2001
NATIONAL MINING ASSOCIATION, ET AL., PLAINTIFFS,
V.
ELAINE L. CHAO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Sullivan, District Judge.
MEMORANDUM OPINION & ORDER
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.
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.
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.
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.
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.
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.
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.
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.
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 ...