Tennessee Consol. Coal Co. v. Crisp, 87-3771

• Decision Date: 19 January 1989
• Docket Number: No. 87-3771,87-3771
• Citation: 866 F.2d 179
• Parties: TENNESSEE CONSOLIDATED COAL COMPANY, Petitioner, v. Clarence O. CRISP, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 179

866 F.2d 179

TENNESSEE CONSOLIDATED COAL COMPANY, Petitioner, v. Clarence O. CRISP, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 87-3771.

United States Court of Appeals Sixth Circuit.

Argued Aug. 11, 1988.

Decided Jan. 19, 1989.

Ronald E. Gilbertson (argued), Kilcullen, Wilson & Kilcullen, Washington, D.C., Mary Lou Smith, for petitioner.

Nelson Layne, Tracy City, Tenn., Robert S. Peters, Winchester, Tenn., for Crisp.

Priscilla Anne Schwab (argued), Office of the Solicitor, U.S. Dept. of Labor, Washington, D.C., Thomas L. Holzman, Priscilla A. Schwab, Benefits Review Bd., U.S. Dept. of Labor, Washington, D.C., for respondents.

Before KENNEDY and WELLFORD, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

The Tennessee Consolidated Coal Company ("Company" or "Petitioner") petitions this court to review a final order of the Benefits Review Board ("Board" or "BRB") affirming an award of benefits under the Black Lung Benefits Act ("Act") to claimant Clarence O. Crisp. The Company now argues, as it did before the BRB, that the Administrative Law Judge ("ALJ") should have applied the permanent regulations in 20 C.F.R. Part 718 instead of the interim regulations in Part 727, and alternatively, that the ALJ erred in refusing to find rebuttal under 20 C.F.R. Sec. 727.203(b)(3). We conclude that the ALJ did not err in applying the interim regulations in Part 727 to this claim, and that the ALJ's resolution of the factual dispute is supported by substantial evidence. Accordingly, we affirm.

Claimant Crisp was born on March 13, 1921. He worked in the Nation's coal mines from 1963 until 1979, and then filed this claim for Black Lung Benefits on November 20, 1979. Because Crisp's claim was filed before the effective date of the permanent regulations of Part 718 (March 31, 1980), the ALJ evaluated it under the interim regulations in 20 C.F.R. Part 727. See 20 C.F.R. Secs. 718.2, 725.4(a) & (d). The ALJ credited Crisp with fifteen years employment as a "miner," 30 U.S.C. Sec. 902(d), and therefore analyzed Crisp's claim under 20 C.F.R. Sec. 727.203.

The ALJ invoked the interim presumption of total disability due to pneumoconiosis based upon two qualifying ventilatory studies, 20 C.F.R. Sec. 727.203(a)(2), and then proceeded to review the evidence for rebuttal under section 727.203(b). The evidence indicated that Crisp suffered from a severe obstructive pulmonary impairment that totally disabled him from any type of employment, thus precluding rebuttal under subsections (b)(1) and (b)(2). Id. Sec. 727.203(b)(1) & (2). In addition, the ALJ considered the medical opinions of Drs. Gilley and Mitchell, and found them insufficient to establish that Crisp's disability did not arise "in part" from his occupational coal dust exposure, id. Sec. 727.203(b)(3), or that Crisp did not suffer from pneumoconiosis, id. Sec. 727.203(b)(4). The ALJ therefore awarded benefits to Crisp. On appeal, the Board rejected the Company's contentions that the Part 727 regulations are inapplicable to this case and that the ALJ erred in not finding rebuttal under subsection (b)(3), and accordingly affirmed. The Company timely petitioned this court to review the BRB's decision.

I.

Petitioner's first contention on appeal challenges the decision by the ALJ and the BRB to evaluate Crisp's claim under the interim regulations of 20 C.F.R. Part 727. The Company contends that the final regulations in Part 718 must be applied here, and that remand is therefore in order. Petitioner initially supported its claim for retroactive application of Part 718 by relying on the six month time limit in section 421(c) of the Act for promulgating final regulations. See 30 U.S.C. Sec. 931(c). In Youghiogheny and Ohio Coal Co. v. Warren, 841 F.2d 134 (6th Cir.1987), however, we held that section 421(c) controlled only final regulations promulgated pursuant to Part C of the Act. Id. at 136. Because the regulations in 20 C.F.R. Part 718 were promulgated under Part A of the Act, see 30 U.S.C. Sec. 902(f)(1)(D), the six month period in section 421(c) was not relevant. Warren, 841 F.2d at 136.

Petitioner now relies on section 411(b) in Part B the Act, which imposes on the Secretary of Health and Human Services the following requirement:

Final regulations required for implementation of any amendments to this subchapter shall be promulgated and published in the Federal Register at the earliest practicable date after the date of enactment of such amendments, and in no event later than the end of the fourth month following the month in which such amendments are enacted.

30 U.S.C. Sec. 921(b) (emphasis added). The Company argues that section 411(b) is also binding on the Secretary of Labor through section 430, which states that amendments "to part B of this subchapter shall, to the extent appropriate, also apply to this part [Part C]." 30 U.S.C. Sec. 940. Petitioner thus contends that the Secretary of Labor should have promulgated the final regulations in Part 718 within four months after the month in which its enabling statute became effective. The Black Lung Benefits Reform Act of 1977 ("Reform Act"), which authorized Part 718, became effective on March 1, 1978; the Company therefore concludes that the final regulations should have been promulgated no later than July 31, 1978. More importantly, the Company interprets the four month promulgation requirement as Congress' mandate to the Secretary of Labor to apply the final regulations in Part 718 to all claims filed after expiration of the four month period, including the instant case, regardless of when the regulations were actually promulgated.

The Secretary of Labor, on the other hand, drafted the regulations to apply prospectively only, see 20 C.F.R. Secs. 718.2, 725.4(d) & 727.2(d), and the Benefits Review Board has on several occasions upheld the Secretary's action, see, e.g., McFarland v. Peabody Coal Co., 8 B.L.R. 1-163 (B.R.B.1985); Smith v. National Mines Corp., 7 B.L.R. 1-803 (B.R.B.1985). We conclude that the Secretary's reading of the Act is reasonable; under the statute and its legislative history, incorporation of the four month promulgation requirement in section 411(b) to mandate retroactive application of the Part 718 regulations is not "appropriate." 30 U.S.C. Sec. 940. Accordingly, the final regulations in Part 718 may be applied strictly in a prospective fashion.

Initially, we find persuasive authority in the enabling statute to support the Secretary's decision to apply the interim regulations in Part 727 to all claims filed before the final regulations became effective. Both sets of regulations derive from the 1977 Reform Act. See Act of March 1, 1978, Pub.L. No. 95-239, Sec. 2(c), 1978 U.S.Code Cong. & Admin.News (92 Stat.) 95-96, codified at 30 U.S.C. Sec. 902(f); 20 C.F.R. Sec. 718.1(a). The final regulations in Part 718 were promulgated pursuant to Congress' mandate that

the Secretary of Labor, in consultation with the Director of the National Institute for Occupational Safety and Health, shall establish criteria for all appropriate medical tests under this subsection which accurately reflect total disability in coal miners as defined in [30 U.S.C. Sec. 902(f)(1)(A) ].

30 U.S.C. Sec. 902(f)(1)(D). Congress also directed the Secretary of Labor, however, to issue the interim regulations now found in Part 727 to control

any claim filed on or before the effective date of regulations promulgated under this subsection by the Secretary of Labor [i.e., the final regulations in Part 718]; ... whether or not the final disposition of any such claim occurs after the date of such promulgation of regulations by the Secretary of Labor.

30 U.S.C. Sec. 902(f)(2)(C) (emphasis added). Congress thus decided that the Part 727 regulations would apply to "any claim filed on or before the effective date" of the final regulations. Id. To eliminate any remaining doubt, the statute further provided that the interim regulations would control "whether or not the final disposition of any such claim occurs after the date" that the final regulations became effective. Id. Sec. 902(f)(2). These provisions clearly authorized the Secretary of Labor to apply prospectively the final regulations in 20 C.F.R. Part 718.

The Company nonetheless asserts that section 411(b), when applied to the Secretary of Labor through section 430, indicates that Congress intended a result contrary to this clear statutory language. We find nothing in those sections, however, evidencing Congress' intent to apply the four month limitation in section 411(b) to the Secretary of Labor. Sections 411(b) and 430 were both added to the Act by the Black Lung Benefits Act of 1972. See Act of May 19, 1972, Pub.L. No. 92-303 Secs. 4(d), 5(10), 1972 U.S.Code Cong. & Admin.News 189, 191. At the same time, however, Congress also enacted a provision specifically controlling the Secretary of Labor's promulgation of final regulations under Part C--the six month requirement at issue in our Warren decision. Id. Sec. 5(5), 1972 U.S.Code Cong. & Admin.News 190; see Warren, 841 F.2d at 136. Congress thus simultaneously enacted separate provisions with distinct timing requirements to control the regulatory actions fo each Secretary. Under these circumstances, we cannot accept the Company's argument that Congress intended the procedural limitations in section 411(b) also to apply to the Secretary of Labor. ¹ We find further support for this conclusion in the legislative history of the 1972 Act. Although the history does not explicitly address whether section 430 incorporates the timing requirement of section 411(b) into Part C, we find the following explanation instructive:

Application of Part B to Part C

New section 430 requires that amendments to part B be applied, wherever appropriate, to part C. Existing law requires that State workmen's compensation laws...