OCTOBER TERM, 1993
Syllabus
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, DEPARTMENT
OF LABOR
v. GREENWICH COLLIERIES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT
No. 93-744. Argued April 25, 1994-Decided June 20,1994*
In adjudicating separate benefits claims under the Black Lung
Benefits Act (BLBA) and the Longshore and Harbor Workers'
Compensation Act (LHWCA), the Department of Labor Administrative
Law Judges (ALJ's) both applied the Department's "true doubt" rule.
This rule essentially shifts the burden of persuasion to the party
opposing the claim so that when, as here, the evidence is evenly
balanced, the benefits claimant wins. In both cases, the
Department's Benefits Review Board affirmed the ALJ's decision to
award benefits. However, the Court of Appeals vacated the Board's
decision in the BLBA case, holding that the true doubt rule is
inconsistent with the Department's own BLBA regulations, as well as
with
Mullins Coal Co. of Va. v.
Director, Office of
Workers' Compensation Programs, 484 U. S. 135. And, in
the LHWCA case, the court reversed on the ground that the true
doubt rule violates § 7(c) of the Administrative Procedure Act
(APA), which states that "[e]xcept as otherwise provided by
statute, the proponent of a rule or order has the burden of
proof."
Held:
1. Section 7(c)'s burden of proof provision applies to
adjudications under the LHWCA and the BLBA, each of which contains
a section incorporating the APA. Neither 33 U. S. C. § 923(a),
which relieves the Department of certain evidentiary and procedural
requirements in LHWCA investigations and hearings, nor an ambiguous
BLBA regulation providing that claimants be given the benefit of
all reasonable doubt, is sufficient to overcome the presumption
that adjudications are subject to the APA. See
Brownell v.
Tom We Shung, 352 U. S. 180, 185. Pp.
270-271.
(a) An examination of
Hill v.
Smith, 260 U. S. 592, 594, and
other relevant cases, as well as contemporary evidence treatises,
demon-
*Together with Director, Office of Workers' Compensation
Programs, Department of Labor v. Maher Terminals, Inc., et al.,
also on certiorari to the same court (see this Court's Rule
12.2).
268
Syllabus
strates that, in 1946, the year the APA was enacted, the
ordinary meaning of § 7(c)'s "burden of proof" phrase was burden of
persuasion (i.
e., the obligation to persuade the trier of
fact of the truth of a proposition), not simply burden of
production (i.
e., the obligation to come forward with
evidence to support a claim). This Court presumes that Congress
intended the phrase to have the meaning generally accepted in the
legal community at the time of enactment. See,
e. g., Holmes
v.
Securities Investor Protection Corporation, 503 U. S. 258, 268.
Because the true doubt rule places the burden of persuasion on the
party opposing a benefits award, it violates § 7(c)'s requirement
that that burden rest with the party seeking the award. Pp.
272-276.
(b) In light of the foregoing, the cursory conclusion set forth
in
NLRB v.
Transportation Management Corp., 462 U. S. 393, 404, n.
7in which the Court stated that § 7(c) determines only the burden
of going forward, not the burden of persuasion-cannot withstand
scrutiny. pp. 276-278.
(c) The Department's reliance on imprecise and marginally
relevant passages from the APA's legislative history is unavailing.
Pp.278-280.
(d) The true doubt rule runs afoul of the APA's goal of greater
uniformity of procedure and standardization of administrative
practice among the diverse federal agencies, for under the
Department's reading each agency would be free to decide who bears
the burden of persuasion. Pp. 280-281.
3. Because these cases are decided on the basis of § 7(c), this
Court need not address the Court of Appeals' holding that the true
doubt rule conflicts with BLBA regulations and
Mullins Coal.
P.281.
990 F.2d
730 (first case) and
992 F.2d
1277 (second case), affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, THOMAS, and GINSBURG, JJ.,
joined. SouTER, J., filed a dissenting opinion, in which BLACKMUN
and STEVENS, JJ., joined,
post, p. 281.
Edward C. DuMont argued the cause for petitioner in both cases.
With him on the briefs were Solicitor General Days, Deputy
Solicitor General Kneedler, Steven J. Mandel, and Edward D.
Sieger.
Mark E. Solomons argued the cause for respondents in both
cases. With him on the brief for respondent Greenwich Collieries
were
Laura Metcoff Klaus and
John J.
Bagnato.
Joseph T. Stearns filed a brief for respondent Maher Termi-
269
nals, Inc.
Philip J.
Rooney filed a brief for
respondent Pasqualina Santoro. t
JUSTICE O'CONNOR delivered the opinion of the Court.
In adjudicating benefits claims under the Black Lung Benefits
Act (BLBA), 83 Stat. 792, as amended, 30 U. S. C. § 901
et
seq. (1988 ed. and Supp. IV), and the Longshore and Harbor
Workers' Compensation Act (LHWCA), 44 Stat. 1424, as amended, 33 U.
S. C. § 901
et seq., the Department of Labor applies what it
calls the "true doubt" rule. This rule essentially shifts the
burden of persuasion to the party opposing the benefits claim-when
the evidence is evenly balanced, the benefits claimant wins. This
litigation presents the question whether the rule is consistent
with § 7(c) of the Administrative Procedure Act (APA), which states
that "[e]xcept as otherwise provided by statute, the proponent of a
rule or order has the burden of proof." 5 U. S. C. § 556(d).
I
We review two separate decisions of the Court of Appeals for the
Third Circuit. In one, Andrew Ondecko applied for disability
benefits under the BLBA after working as a coal miner for 31 years.
The Administrative Law Judge (ALJ) determined that Ondecko had
pneumoconiosis (or black lung disease), that he was totally
disabled by the disease, and that the disease resulted from coal
mine employment. In resolving the first two issues, the ALJ relied
on the true doubt rule. In resolving the third, she relied on the
rebuttable presumption that a miner with pneumoconiosis who worked
in the mines for at least 10 years developed the disease be-
tBriefs of
amici curiae urging affirmance were filed for
the American Insurance Association by
William J.
Kilberg,
Theodore J.
Boutrous, Jr., Craig A. Berrington, and
Bruce C.
Wood; for the National Association of
Waterfront Employers et al. by
Charles T. Carroll, Jr., Thomas
D. Wilcox, and
Franklin W Losey; and for the National
Coal Association by
Harold P. Quinn, Jr.
270
cause of his employment. 20 CFR § 718.203(b) (1993). The
Department's Benefits Review Board affirmed, concluding that the
ALJ had considered all the evidence, had found each side's evidence
to be equally probative, and had properly resolved the dispute in
Ondecko's favor under the true doubt rule. The Court of Appeals
vacated the Board's decision, holding that the true doubt rule is
inconsistent with the Department's own regulations under the BLBA,
§ 718.403, as well as with
Mullins Coal Co. of Va. v.
Director, Office of Workers' Compensation Programs, 484 U. S. 135 (1987).
990 F.2d
730 (1993).
In the other case, Michael Santoro suffered a work-related back
and neck injury while employed by respondent Maher Terminals.
Within a few months Santoro was diagnosed with nerve cancer, and he
died shortly thereafter. His widow filed a claim under the LHWCA
alleging that the work injury had rendered her husband disabled and
caused his death. After reviewing the evidence for both sides, the
ALJ found it equally probative and, relying on the true doubt rule,
awarded benefits to the claimant. The Board affirmed, finding no
error in the ALJ's analysis or his application of the true doubt
rule. The Court of Appeals reversed, holding that the true doubt
rule is inconsistent with § 7(c) of the AP A.
992
F.2d 1277 (1993). In so holding, the court expressly disagreed
with
Freeman United Coal Mining Co. v.
Office of Workers'
Compensation Programs, 988 F. 2d 706 (CA7 1993). We granted
certiorari to resolve the conflict. 510 U. S. 1068 (1994).
II
As a threshold matter, we must decide whether § 7(c)'s burden of
proof provision applies to adjudications under the LHWCA and the
BLBA. Section 7(c) of the APA applies "[e]xcept as otherwise
provided by statute," and the Department argues that the statutes
at issue here make clear that § 7(c) does not apply. We
disagree.
271
The Department points out that in conducting investigations or
hearings pursuant to the LHWCA, the "Board shall not be bound by
common law or statutory rules of evidence or by technical or formal
rules of procedure, except as provided by this chapter." 33 U. S.
C. § 923(a). But the assignment of the burden of proof is a rule of
substantive law,
American Dredging Co. v.
Miller,
510 U. S. 443,
454 (1994), so it is unclear whether this exception even applies.
More importantly, § 923 by its terms applies "except as provided by
this chapter," and the chapter provides that § 7(c) does indeed
apply to the LHWCA. 33 U. S. C. § 919(d) ("Notwithstanding any
other provisions of this chapter, any hearing held under this
chapter shall be conducted in accordance with [the AP A]"); 5 U. S.
C. § 554(c)(2). We do not lightly presume exemptions to the AP A,
Brownell v.
Tom We Shung, 352 U. S. 180, 185
(1956), and we do not think § 923 by its terms exempts the LHWCA
from § 7(c).
The Department's argument under the BLBA fares no better. The
BLBA also incorporates the APA (by incorporating parts of the
LHWCA), but it does so "except as otherwise provided ... by
regulations of the Secretary." 30 U. S. C. § 932(a). The Department
argues that the following BLBA regulation so provides: "In enacting
[the BLBA], Congress intended that claimants be given the benefit
of all reasonable doubt as to the existence of total or partial
disability or death due to pneumoconiosis." 20 CFR § 718.3(c)
(1993). But we do not think this regulation can fairly be read as
authorizing the true doubt rule and rejecting the APA's burden of
proof provision. Not only does the regulation fail to mention the
true doubt rule or § 7(c), it does not even mention the concept of
burden shifting or burdens of proof. Accordingly-and assuming,
arguendo, that the Department has the authority to displace
§ 7(c) through regulation-this ambiguous regulation does not
overcome the presumption that these adjudications under the BLBA
are subject to § 7(c)'s burden of proof provision.
272
III
We turn now to the meaning of "burden of proof" as used in §
7(c). Respondents contend that the Court of Appeals was correct in
reading "burden of proof" to include the burden of
persuasion. The Department disagrees, contending that
"burden of proof" imposes only the burden of
production (i.
e., the burden of going forward with evidence). The cases
turn on this dispute, for if respondents are correct, the true
doubt rule must fall: because the true doubt rule places the burden
of persuasion on the party opposing the benefits award, it would
violate § 7(c)'s requirement that the burden of persuasion rest
with the party seeking the award.
A
Because the term "burden of proof" is nowhere defined in the AP
A, our task is to construe it in accord with its ordinary or
natural meaning.
Smith v.
United States, 508 U. S. 223, 228
(1993). It is easier to state this task than to accomplish it, for
the meaning of words may change over time, and many words have
several meanings even at a fixed point in time.
Victor v.
Nebraska, 511 U.
S. 1, 13-14 (1994); see generally Cunningham, Levi, Green,
& Kaplan, Plain Meaning and Hard Cases, 103 Yale L. J. 1561
(1994). Here we must seek to ascertain the ordinary meaning of
"burden of proof" in 1946, the year the AP A was enacted.
For many years the term "burden of proof" was ambiguous because
the term was used to describe two distinct concepts. Burden of
proof was frequently used to refer to what we now call the burden
of persuasion-the notion that if the evidence is evenly balanced,
the party that bears the burden of persuasion must lose. But it was
also used to refer to what we now call the burden of production-a
party's obligation to come forward with evidence to support its
claim. See J. Thayer, Evidence at the Common Law 355-384 (1898)
(detailing various uses of the term "burden of proof" among
19th-century English and American courts).
273
The Supreme Judicial Court of Massachusetts was the leading
proponent of the view that burden of proof should be limited to
burden of persuasion. In what became an oftcited case, Chief
Justice Lemuel Shaw attempted to distinguish the burden of proof
from the burden of producing evidence.
Powers v.
Russell, 30 Mass. 69 (1833). According to the Massachusetts
court, "the party whose case requires the proof of [a] fact, has
all along the burden of proof."
Id., at 76. Though the
burden of proving the fact remains where it started, once the party
with this burden establishes a prima facie case, the burden to
"produce evidence" shifts.
Ibid. The only time the burden of
proof-as opposed to the burden to produce evidence-might shift is
in the case of affirmative defenses.
Id., at 77. In the
century after
Powers, the Supreme Judicial Court of
Massachusetts continued to carefully distinguish between the burden
of proof and the burden of production. See, e. g., Smith v. Hill,
232 Mass. 188, 122 N. E. 310 (1919).
Despite the efforts of the Massachusetts court, the dual use of
the term continued throughout the late 19th and early 20th
centuries. See 4 J. Wigmore, Evidence §§ 2486-2487, pp. 3524-3529
(1905); Thayer,
supra, at 355; 1 B. Elliott & W.
Elliott, Law of Evidence § 129, pp. 184-185 (1904); 2 C.
Chamberlayne, Modern Law of Evidence § 936, pp. 10961098 (1911).
The ambiguity confounded the treatise writers, who despaired over
the "lamentable ambiguity of phrase and confusion of terminology
under which our law has so long suffered." Wigmore,
supra,
at 3521-3522. The writers praised the "clear-thinking" efforts of
courts like the Supreme Judicial Court of Massachusetts,
Chamberlayne,
supra, at 1097, n. 3, and agreed that the
legal profession should endeavor to clarify one of its most basic
terms. According to Thayer,
supra, at 384-385, "[i]t seems
impossible to approve a continuance of the present state of things,
under which such different ideas, of great practical importance and
of frequent application, are indicated by this single ambigu-
274
ous expression." See also Chamberlayne,
supra, at 1098.
To remedy this problem, writers suggested that the term "burden of
proof" be limited to the concept of burden of persuasion, while
some other term-such as "burden of proceeding" or "burden of
evidence"-be used to refer to the concept of burden of production.
Chamberlayne,
supra, § 936; Elliott & Elliott,
supra, at 185, n. 3. Despite the efforts at clarification,
however, a dwindling number of courts continued to obscure the
distinction. See Annot., 2 A. L. R. 1672 (1919) (noting that some
courts still fail to properly distinguish "between the burden of
proof and the duty of going forward with the evidence").
This Court tried to eliminate the ambiguity in the term "burden
of proof" when it adopted the Massachusetts approach.
Hill
v.
Smith, 260
U. S. 592 (1923). Justice Holmes wrote for a unanimous Court
that "it will not be necessary to repeat the distinction, familiar
in Massachusetts since the time of Chief Justice Shaw,
[Powers,
supra], and elaborated in the opinion below, between the burden
of proof and the necessity of producing evidence to meet that
already produced. The distinction is now very generally accepted,
although often blurred by careless speech."
Id., at 594.
In the two decades after
Hill, our opinions consistently
distinguished between burden of proof, which we defined as burden
of persuasion, and an alternative concept, which we increasingly
referred to as the burden of production or the burden of going
forward with the evidence. See,
e. g., Brosnan v.
Brosnan, 263
U. S. 345, 349 (1923) (imposition of burden of proof imposes
the burden of persuasion, not simply the burden of establishing a
prima facie case);
Radio Corp. of America v.
Radio
Engineering Laboratories, Inc., 293 U. S. 1, 7-8 (1934) (party
who bears the burden of proof "bears a heavy burden of
persuasion");
Commercial Molasses Corp. v.
New York Tank
Barge Corp., 314
U. S. 104, 111 (1941) (party with the burden of proof bears the
"burden of persuasion," though the opposing party may bear a
burden
275
to "go forward with evidence");
Webre Steib Co. v.
Commissioner, 324 U. S. 164, 171 (1945)
(claimant bears a "burden of going forward with evidence ...
as
well as the burden of proof") (emphasis added). During this
period the Courts of Appeals also limited the meaning of burden of
proof to burden of persuasion, and explicitly distinguished this
concept from the burden of production. *
The emerging consensus on a definition of burden of proof was
reflected in the evidence treatises of the 1930's and 1940's. "The
burden of proof is the obligation which rests on one of the parties
to an action to persuade the trier of the facts, generally the
jury, of the truth of a proposition which he has affirmatively
asserted by the pleadings." W. Richardson, Evidence 143 (6th ed.
1944); see also 1 B. Jones, Law of Evidence in Civil Cases 310 (4th
ed. 1938) ("The modern authorities are substantially agreed that,
in its strict primary sense, 'burden of proof' signifies the duty
or obligation of establishing, in the mind of the trier of facts,
conviction on the ultimate issue"); J. McKelvey, Evidence 64 (4th
ed. 1932) ("[T]he proper meaning of [burden of proof]" is "the duty
of the person alleging the case to prove it," rather than "the duty
of the one party or the other to introduce evidence").
We interpret Congress' use of the term "burden of proof" in
light of this history, and presume Congress intended the phrase to
have the meaning generally accepted in the legal community at the
time of enactment.
Holmes v.
Securities Investor
Protection Corporation, 503 U. S. 258, 268
(1992);
Miles v.
Apex Marine Corp., 498 U. S. 19, 32 (1990);
Cannon
*See, e. g., Lee v. State Bank & Trust Co., 38 F.2d 45, 48
(CA2 1930); United States v. Knoles, 75 F.2d 557, 561 (CA8 1935);
Department of Water and Power of Los Angeles v. Anderson, 95 F.2d
577, 583 (CA9 1938); Rossman v. Blunt, 104 F.2d 877, 880 (CA6
1939); Cory v. Commissioner, 126 F.2d 689, 694 (CA3 1942);
Commissioner v. Bain Peanut Co. of Tex., 134 F.2d 853, 860, n. 2
(CA5 1943); New York Life Ins. Co. v. Taylor, 147 F.2d 297, 301
(CADC 1945).
276
v.
University of Chicago, 441 U. S. 677, 696-698
(1979). These principles lead us to conclude that the drafters of
the AP A used the term "burden of proof" to mean the burden of
persuasion. As we have explained, though the term had once been
ambiguous, that ambiguity had largely been eliminated by the early
20th century. After Hill, courts and commentators almost
unanimously agreed that the definition was settled. And Congress
indicated that it shared this settled understanding, when in the
Communications Act of 1934 it explicitly distinguished between the
burden of proof and the burden of production. 47 U. S. C. §§ 309(e)
and 312(d) (a party has
both the "burden of proceeding with
the introduction of evidence and the burden of proof").
Accordingly, we conclude that as of 1946 the ordinary meaning of
burden of proof was burden of persuasion, and we understand the AP
A's unadorned reference to "burden of proof" to refer to the burden
of persuasion.
B
We recognize that we have previously asserted the contrary
conclusion as to the meaning of burden of proof in § 7(c) of the
APA. In
NLRB v.
Transportation Management Corp.,
462 U. S. 393
(1983), we reviewed the National Labor Relations Board's (NLRB's)
conclusion that the employer had discharged the employee because of
the employee's protected union activity. In such cases the NLRB
employed a burden shifting formula typical in dual motive cases:
The employee had the burden of persuading the NLRB that antiunion
animus contributed to the employer's firing decision; the burden
then shifted to the employer to establish as an affirmative defense
that it would have fired the employee for permissible reasons even
if the employee had not been involved in union activity.
Id., at 401-402. The employer claimed that the NLRB's burden
shifting formula was inconsistent with the National Labor Relations
Act (NLRA), but we upheld it as a reasonable construction of the
NLRA.
Id., at 402-403.
277
The employer in
Transportation Management argued that the
NLRB's approach violated § 7(c)'s burden of proof provision, which
the employer read as imposing the burden of persuasion on the
employee. In a footnote, we summarily rejected this argument,
concluding that "[§ 7(c)] ... determines only the burden of going
forward, not the burden of persuasion.
Environmental Defense
Fund, Inc. v.
EPA, [
548 F.2d
998, 1004, 1013-1015 (CADC 1976)]."
Id., at 404, n. 7.
In light of our discussion in Part II-A above, we do not think our
cursory conclusion in the
Transportation Management footnote
withstands scrutiny. The central issue in
Transportation
Management was whether the NLRB's burden shifting approach was
consistent with the NLRA. The parties and the
amici in
Transportation Management treated the AP A argument as an
afterthought, devoting only one or two sentences to the question.
None of the briefs in the case attempted to explain the ordinary
meaning of the term.
Transportation Management's cursory
answer to an ancillary and largely unbriefed question does not
warrant the same level of deference we typically give our
precedents.
Moreover,
Transportation Management reached its
conclusion without referring to
Steadman v.
SEe,
450 U. S. 91
(1981), our principal decision interpreting the meaning of § 7(c).
In
Steadman we considered what
standard of proof §
7(c) required, and we held that the proponent of a rule or order
under § 7(c) had to meet its burden by a preponderance of the
evidence, not by clear and convincing evidence. Though we did not
explicitly state that § 7(c) imposes the burden of persuasion on
the party seeking the rule or order, our reasoning strongly implied
that this must be so. We assumed that burden of proof meant burden
of persuasion when we said that we had to decide "the degree of
proof which must be adduced by the proponent of a rule or order
to carry its burden of persuasion in an administrative
proceeding."
Id., at 95 (emphasis added). More important,
our holding that the party with the burden of proof must prove
278
its case by a preponderance only makes sense if the burden of
proof means the burden of persuasion. A standard of proof, such as
preponderance of the evidence, can apply only to a burden of
persuasion, not to a burden of production.
We do not slight the importance of adhering to precedent,
particularly in a case involving statutory interpretation. But here
our precedents are in tension, and we think our approach in
Steadman makes more sense than does the
Transportation
Management footnote. And although we reject
Transportation
Management's reading of § 7(c), the holding in that case
remains intact. The NLRB's approach in
Transportation
Management is consistent with § 7(c) because the NLRB first
required the employee to persuade it that antiunion sentiment
contributed to the employer's decision. Only then did the NLRB
place the burden of persuasion on the employer as to its
affirmative defense.
C
In addition to the
Transportation Management footnote,
the Department relies on the Senate and House Judiciary Committee
Reports on the AP A to support its claim that burden of proof means
only burden of production. See En
vironmental Defense Fund v.
EPA, 548 F. 2d, at 1014-1015 (accepting this argument),
cited in
Transportation Management, supra, at 404, n. 7. We
find this legislative history unavailing. The Senate Judiciary
Committee Report on the AP A states as follows:
"That the proponent of a rule or order has the burden of proof
means not only that the party initiating the proceeding has the
general burden of coming forward with a prima facie case but that
other parties, who are proponents of some different result, also
for that purpose have a burden to maintain. Similarly the
requirement that no sanction be imposed or rule or order be issued
except upon evidence of the kind specified means that the
proponents of a denial of relief must sustain such denial by
279
that kind of evidence. For example, credible and credited
evidence submitted by the applicant for a license may not be
ignored except upon the requisite kind and quality of contrary
evidence. No agency is authorized to stand mute and arbitrarily
disbelieve credible evidence. Except as applicants for a license or
other privilege may be required to come forward with a prima facie
showing, no agency is entitled to presume that the conduct of any
person or status of any enterprise is unlawful or improper." S.
Rep. No. 752, 79th Cong., 1st Sess., 22 (1945).
The House Judiciary Committee Report contains identical
language, along with the following:
"In other words, this section means that every proponent of a
rule or order or the denial thereof has the burden of coming
forward with sufficient evidence therefor; and in determining
applications for licenses or other relief any fact, conduct, or
status so shown by credible and credited evidence must be accepted
as true except as the contrary has been shown or such evidence has
been rebutted or impeached by duly credited evidence or by facts
officially noticed and stated." H. R. Rep. No. 1980, 79th Cong., 2d
Sess., 36 (1946).
The Department argues that this legislative history indicates
congressional intent to impose a burden of production on the
proponent. But even if that is so, it does not mean that § 7(c) is
concerned only with imposing a burden of production. That Congress
intended to impose a burden of production does not mean that
Congress did not also intend to impose a burden of persuasion.
Moreover, these passages are subject to a natural interpretation
compatible with congressional intent to impose a burden of
persuasion on the party seeking an order. The primary purpose of
these passages is not to define or allocate the burden of proof.
The quoted passages are primarily
280
concerned with the burden placed on the
opponent in
administrative hearings ("other parties ... have a burden to
maintain"), particularly where the opponent is the Government. The
Committee appeared concerned with those cases in which the
"proponent" seeks a license or other privilege from the Government,
and in such cases did not want to allow the agency "to stand mute
and arbitrarily disbelieve credible evidence." The Reports make
clear that once the licensee establishes a prima facie case, the
burden shifts to the Government to rebut it. This is perfectly
compatible with a rule placing the burden of persuasion on the
applicant, because when the party with the burden of persuasion
establishes a prima facie case supported by "credible and credited
evidence," it must either be rebutted or accepted as true.
The legislative history the Department relies on is imprecise
and only marginally relevant. Congress chose to use the term
"burden of proof" in the text of the statute, and given the
substantial evidence that the ordinary meaning of burden of proof
was burden of persuasion, this legislative history cannot carry the
day.
D
In part due to Congress' recognition that claims such as those
involved here would be difficult to prove, claimants in
adjudications under these statutes benefit from certain statutory
presumptions easing their burden. See 33 U. S. C. § 920; 30 U. S.
C. § 921(c);
Del Vecchio v.
Bowers, 296 U. S. 280, 286
(1935). Similarly, the Department's solicitude for benefits
claimants is reflected in the regulations adopting additional
presumptions. See 20 CFR §§ 718.301-718.306
(1993); Mullins
Coal, 484 U. S., at 158. But with the true doubt rule the
Department attempts to go one step further. In so doing, it runs
afoul of the AP A, a statute designed "to introduce greater
uniformity of procedure and standardization of administrative
practice among the diverse
281
agencies whose customs had departed widely from each other."
Wong Yang Sung v.
McGrath, 339 U. S. 33, 41 (1950).
That concern is directly implicated here, for under the
Department's reading each agency would be free to decide who shall
bear the burden of persuasion. Accordingly, the Department cannot
allocate the burden of persuasion in a manner that conflicts with
the AP A.
IV
Under the Department's true doubt rule, when the evidence is
evenly balanced the claimant wins. Under § 7(c), however, when the
evidence is evenly balanced, the benefits claimant must lose.
Accordingly, we hold that the true doubt rule violates § 7(c) of
the APA.
Because we decide these cases on the basis of § 7(c), we need
not address the Court of Appeals' holding in
Greenwich
Collieries that the true doubt rule conflicts with § 718.403 or
with
Mullins Coal, supra.
Affirmed.
JUSTICE SOUTER, with whom JUSTICE BLACKMUN and JUSTICE STEVENS
join, dissenting.
For more than 50 years, in adjudicating benefits claims under
the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.
S. C. § 901
et seq., and for more than 15 years under the
Black Lung Benefits Act (BLBA), 30 U. S. C. § 901
et seq.
(1988 ed. and Supp. IV), the Department of Labor has applied the
"true doubt" rule, providing that when the evidence submitted by a
claimant and by a party opposing the award is of equal weight, the
claimant wins. The rule thus places the risk of nonpersuasion on
the opponent of the benefits claim. Today, the Court strikes the
rule down as conflicting with § 7(c) of the Administrative
Procedure Act (APA), 5 U. S. C. § 556(d), passed by Congress in
1946. I respectfully dissent.
282
SOUTER, J., dissenting
I
So far as relevant, § 7(c) of the APA states that
"[e]xcept as otherwise provided by statute, the proponent of a
rule or order has the burden of proof. Any oral or documentary
evidence may be received, but the agency as a matter of policy
shall provide for the exclusion of irrelevant, immaterial, or
unduly repetitious evidence. A sanction may not be imposed or rule
or order issued except on consideration of the whole record or
those parts thereof cited by a party and supported by and in
accordance with the reliable, probative, and substantial evidence."
5 U. S. C. § 556(d).
The majority's holding that "burden of proof" in the first
sentence of this provision means "burden of persuasion" surely
carries the force of the preferred meaning of the term in today's
general usage, as the Court's opinion demonstrates. But we are
concerned here not with the commonly preferred meaning of the term
today, but with its meaning as understood and intended by Congress
in enacting § 7(c) of the AP A in 1946. That is not a matter about
which preference has been constant, or Congress silent, or even a
subject of first impression for this Court.
The phrase "burden of proof" has been used in two ways, to mean
either the burden of persuasion (the risk of nonpersuasion), see 9
J. Wigmore, Evidence § 2486 (J. Chadbourn rev. 1981) (hereinafter
Wigmore), or the burden of production (of going forward with
evidence), see id., § 2487. The latter sense arose from the
standard common-law rule that in order "to keep the jury within the
bounds of reasonable action," the party bearing the burden of
production had to put forth enough evidence to make a prima facie
case in order to get to the jury.
Ibid. At the turn of the
century, Thayer noted that burden of proof, in the sense of "going
forward with argument or evidence," is "the meaning of the term in
common speech ... [and] also a familiar legal
283
usage .... " J. Thayer, A Preliminary Treatise on Evidence at
the Common Law 385-386 (1898). Thayer described Chief Justice
Shaw's unsuccessful attempts to restrict the Massachusetts courts
to the other (burden of persuasion) meaning of the phrase, id., at
355-357, 385-387, and n. 1, and argued that since the "widest legal
usage" of the phrase and "the use of the phrase in ordinary
discourse" was to mean burden of production, burden of proof should
only be used in that sense, see Thayer, The Burden of Proof, 4
Harv. L. Rev. 45, 69 (1890).
Although the Court works hard to show that the phrase had
acquired a settled meaning in the alternative sense by the time the
AP A was passed in 1946, there is good evidence that the courts
were still using the term either way and that Congress followed
Thayer. Indeed, just nine years after
Hill v.
Smith,
260 U. S. 592
(1923), in which Justice Holmes is said to have firmed up the use
of "burden of proof" to mean burden of persuasion, this Court
reverted to using the phrase in its burden of production sense
instead.1 See
Heiner v.
Donnan, 285 U. S. 312, 329 (1932)
("A rebuttable [prima facie] presumption clearly is a rule of
evidence which has the effect of shifting the burden of proof")
(citing
Mobile, J. &
K. C.
R. Co. v.
Turnipseed, 219
U. S. 35, 43 (1910) (stating that "[t]he only legal effect of
this [presumption] is to cast upon [defendant] the duty of
producing some evidence to the contrary")). In such usage
Heiner appears in line with
Hawes v.
Georgia,
258 U. S. 1 (1922)
(upholding rebuttable presumption casting "burden of proof" on
defendant in criminal case); see
Tot v.
United
States, 319 U. S.
463, 470-471 (1943) (describing
Hawes as involving
statutory provision that permissibly "shift[ed] the burden of
proof" once a prima facie case was made by prosecution). And courts
just three years before the passage of the AP A held that burden of
proof was at least sometimes used by Congress to mean
lOne can hardly blame the great Justice, who had left the bench
at the beginning of that year.
284
SOUTER, J., dissenting
"burden of going forward with the evidence," and not burden of
persuasion.
Northwestern Elec. Co. v.
Federal Power
Comm'n, 134 F.2d 740, 743 (CA91943) (interpreting "burden of
proof" in Federal Power Act, 16 U. S. C. §825(a)), aff'd,
321 U. S. 119 (1944).
Contrary to the Court's understanding, commentators did not
think the ambiguity of the phrase had disappeared before passage of
the AP A, and, at the time, some even thought it unsettled whether
burden of persuasion or of going forward with the evidence was the
primary meaning of the phrase. As one commentator (relied on by the
majority here) explained in 1938, although in its "strict primary
sense, 'burden of proof' signifies" burden of persuasion, "[i]n its
secondary sense, the expression 'burden of proof' signifies the
duty that rests upon a party of going forward with the evidence at
any given stage of the case-although eminent authority holds that
this is, or should be, its primary sense." 1 B. Jones, Law of
Evidence in Civil Cases § 176, p. 310 (4th ed. 1938) (citing
Thayer). He noted: "The expression 'burden of proof' has not a
fixed and unvarying meaning and application. On the contrary, it is
used, at times indiscriminately, to signify one or both of two
distinct and separate ideas. Courts and commentators have striven
to correct this variable usage and bring clarity and uniformity to
the subject, but without noticeable success." Jones,
supra,
at 309 (footnote omitted). That commentary retained substantially
the same description 20 years later, and thereafter, see 1 B.
Jones, Law of Evidence, Civil and Criminal, § 204, pp. 361-363 (5th
ed. 1958); 1 S. Gard, Jones on Evidence § 5:1, pp. 519-520 (6th ed.
1972). Other commentators noted the persistent confusion of the
terms in the 1940's. See,
e. g., W. Richardson, Law of
Evidence § 172 (6th ed. 1944) (" '[BJurden of proof' is frequently
misused by our courts"); J. Maguire, Evidence, Common Sense and
Common Law 175 (1947) ("Under our law the term burden of proof has
been used to express two rather different ideas, and as might be
expected
285
this usage has led to a jumble"). Further, at the time of the AP
A's passage, the American Law Institute, Model Code of Evidence
(1942), noted both meanings, see Wigmore § 2485, at 284, comments.
Thus, courts and commentators continued to note the two meanings
both before and long after the enactment of the AP A, and use of
"burden of proof" in either of its senses continued to create "the
lamentable ambiguity of phrase and confusion of terminology under
which our law has so long suffered," id., § 2485.
Although standard usage had not made a choice of meanings by
1946, Congress did make one, and the meaning it chose for the
phrase as used in § 7(c) was "burden of production." In extensive
Reports on the pending legislation, both the Senate and the House
explained the meaning of § 7(c):
"That the proponent of a rule or order has the burden of proof
means not only that the party initiating the proceeding has the
general burden of coming forward with a prima facie case but that
other parties, who are proponents of some different result, also
for that purpose have a burden to maintain. Similarly the
requirement that no sanction be imposed or rule or order be issued
except upon evidence of the kind specified means that the
proponents of a denial of relief must sustain such denial by that
kind of evidence .... " S. Rep. No. 752, 79th Cong., 1st Sess., 22
(1945), reprinted in Legislative History of the Administrative
Procedure Act, S. Doc. No. 248, 79th Cong., 2d Sess., 208 (1946)
(hereinafter Leg. Hist.); H. R. Rep. No. 1980, 79th Cong., 2d
Sess., 36 (1946), Leg. Hist. 270-271.
The House Report added that,
"[i]n other words, this section means that every proponent of a
rule or order or the denial thereof has the burden of coming
forward with sufficient evidence therefor ....
286
SOUTER, J., dissenting
"The first and second sentences of the section therefore mean
that, where a party having the burden of proceeding has come
forward with a prima facie and substantial case, he will prevail
unless his evidence is discredited or rebutted." Id., at
36-37, Leg. Hist. 270-271.2
Because Congress stated that "burden of proof means" a "burden
of coming forward," and further explained that the burden could be
shouldered by both proponents and opponents of a rule or order, the
strong probability is that Congress meant to use "burden of proof"
to mean burden of coming forward and not burden of persuasion, for
a burden of persuasion cannot simultaneously rest on both parties.
See generally Wigmore § 2489. The commentators agree. "The
legislative history suggests that the term 'burden of proof' was
intended to denote the 'burden of going forward.'" 1 C. Koch,
Administrative Law and Practice § 6.42, p. 486 (1985); "The
legislative history of the A. P. A. burden of proof provision
states that the party initiating the proceeding has, at a minimum,
the burden of establishing a
prima facie case, but a burden
of proof may also rest on other parties seeking a different
decision by the agency." 4 J. Stein, G. Mitchell, & B. Mezines,
Administrative Law § 24.02, p. 24-25 (1994); accord, 3 K. Davis,
Administrative Law Treatise § 16.9, pp. 257-258 (2d ed. 1980)
(citing a lower court's "analysis of the Senate and House reports
on the AP A and the Attorney General's Manual").
2 The Attorney General found the phrase ambiguous, noting that
"[t]here is some indication that the term 'burden of proof' was not
employed in any strict sense, but rather as synonymous with the
'burden of going forward.' In either case, it is clear from the
introductory clause that this general statement was not intended to
repeal specific provisions of other statutes which, as by
establishing presumptions, alter what would otherwise be the
'burden of proof' or the 'burden of going forward.' " Attorney
General's Manual on the Administrative Procedure Act 75 (1947)
(footnote omitted).
287
The congressional choice of the burden of production meaning was
in fact understood from the first and was the subject of some
lament by commentators, who criticized the first sentence of § 7(c)
(already in its current formulation as "the proponent of a rule or
order has the burden of proof") as unhelpful:
"The first sentence is confusing, and is at best unimportant
.... For example, where a hearing is called to determine whether or
not a license application should be granted, the 'proponent' of the
'order' would seem to be the applicant if the order turns out to be
an order granting the application, or the agency if the order turns
out to be an order denying the application. We conclude that this
sentence should be eliminated from the bill." Committee on
Administrative Law of New York State Bar Assn. and Association of
the Bar of the City of New York, Joint Report on Proposed Federal
Administrative Procedure Act 16 (Dec. 26, 1945).
It was certainly not their understanding that this provision
established a uniform burden of persuasion.3
II
Until today, this Court's reading of § 7(c) has been consonant
with the congressional understanding. In
NLRB v.
3 Congressional intent that in § 7(c) burden of proof mean
burden of production is further confirmed by the fact that as
originally introduced in the Rouse, § 7(c) stated that "[t]he
proponent of a rule or order shall have the burden of proceeding
except as statutes otherwise provide." R. R. 1203, 79th Cong., 1st
Sess., § 7(c), (introduced Jan. 1945), Leg. Rist. 158; see Leg.
Rist. 11,300. Congress prepared extensive side-by-side comparisons
of the bill as introduced and as amended into its enacted form, but
neither Congress nor any of the commentators gave any indication
that the change in language was intended to change the meaning of
the sentence. See generally Senate Judiciary Committee, Text of S.
7, Respecting Federal Administrative Procedure and Judicial Review
and Revised Text, 79th Cong., 1st Sess. (Comm. Print 1945).
288
SOUTER, J., dissenting
Transportation Management Corp., 462 U. S. 393 (1983),
this Court considered the phrase "burden of proof" as used in that
section and rejected the position the Court now takes. In
Transportation Management, the Court upheld the rule of the
National Labor Relations Board (Board), that its General Counsel
has the burden of persuading the Board that antiunion animus
contributed to an employer's decision to fire the employee, and
that the burden of persuasion then shifts to the employer to prove
that the employee would have been fired even without involvement in
protected union activities. Confronting the employer's argument
that § 7(c) barred the Board from ever shifting the burden of
persuasion to the employer, the Court rejected it, on the ground
that § 7(c) "determines only the burden of going forward, not the
burden of persuasion."
Id., at 404, n. 7 (citing
Environmental Defense Fund, Inc. v.
EPA, 548 F.2d
998, 1004, 10131015 (CADC 1976) (Leventhal, J.)).
Today's abandonment of
Transportation Management's
holding is not only a mistake, but one that puts the Court at odds
with that fundamental principle of precedent that "[c]onsiderations
of
stare decisis have special force in the area of statutory
interpretation, for ... Congress remains free to alter what we have
done."
Patterson v.
McLean Credit Union, 491 U. S. 164, 172-173
(1989); accord,
Square D Co. v.
Niagara Frontier Tariff
Bureau, Inc., 476
U. S. 409, 424 (1986);
Illinois Brick Co. v.
Illinois, 431
U. S. 720, 736 (1977).4 Even on the assumption that the
conclusion reached in
Transportation Management was
debatable at the time the case was decided, it was undoubtedly a
reasonable construction of a phrase that (as shown above) was
ambiguous
4 I note in this regard that none of the parties argued for
overruling Transportation Management; only amicus American
Insurance Association did so; and the courts below did not pass on
the question. Rather, respondents argue that Transportation
Management does not bar the conclusion that a different sentence of
§ 7(c) places the burden of persuasion on the proponent of an
order.
289
in the general usage of 1946, and in the 11 years since the
construction was settled by
Transportation Management,
Congress has not seen fit to disturb it by amending § 7(c).
Compare,
e. g., Johnson v.
Transportation Agency, Santa
Clara Cty., 480
U. S. 616, 629-630, n. 7 (1987), with
Califano v.
Sanders, 430 U.
S. 99, 105-107 (1977). The settled construction should
therefore stand.
This Court, like the court below, tries to avoid
Transportation Management by implying that the Court's
definition of burden of proof in § 7(c) as burden of production was
inessential to its holding, since the Court only allowed the burden
of persuasion to be placed on the employer after the NLRB had met
its burden of persuasion on the elements of an unfair labor
practice.
992 F.2d
1277, 1281-1284 (CA3 1993); cf.
ante, at 278 ("[T]he
holding in that case remains intact"). The problem with this
reading of
Transportation Management, however, is that it is
not at all what this Court said, or could have said. The reasoning
chosen by the Court to justify its conclusion was that burden of
proof in § 7(c) means burden of production, and thus is no
impediment to the Board's rule. And in so explaining, the Court
cited the leading case from the Court of Appeals for the District
of Columbia Circuit that had held "proof" synonymous with
"production" in the text under examination.
Environmental
Defense Fund, supra.
The Court also reasons that the burden of proof holding of
Transportation Management should be abandoned as conflicting
with
Steadman v.
SEC, 450 U. S. 91 (1981), a
decision announced just two Terms prior to
Transportation
Management. But
Steadman and
Transportation
Management are simply not inconsistent with each other. Indeed,
neither the parties to
Transportation Management nor the
Court itself saw
Steadman as even relevant to the questions
presented in
Transportation Management. In
Steadman,
a mutual funds manager argued that in a disciplinary proceeding to
determine whether he had violated the federal securities
290
SOUTER, J., dissenting
laws, the Securities and Exchange Commission had no choice but
to use the clear-and-convincing standard of proof, rather than the
standard of preponderance of the evidence.
Steadman read the
third sentence of § 7(c) (a rule or order must be "supported by and
in accordance with the reliable, probative, and substantial
evidence") to mean that preponderance of the evidence, not the
clear-and-convincing standard, applies in adjudications under the
AP A.
Steadman thus holds that the party with the burden of
persuasion must satisfy it by a preponderance, but does not purport
to define "burden of proof" under the AP A or to decide who bears
the burden of persuasion, since it was uncontested in that case
that the burden of persuasion was on the Government in a securities
disciplinary proceeding.
Transportation Management, on the
other hand, holds that "burden of proof" in § 7(c) means burden of
production. The question left open by each decision is who bears
the burden of persuasion. As to that, § 7(c) is silent.
It is also worth remarking that
Transportation Management
came as no surprise when it was decided, other federal courts
having anticipated this Court's reading of the § 7(c) burden as one
of production. See,
e. g., Environmental Defense Fund, Inc.
v.
EPA, 548 F. 2d, at 1013 (" 'burden of proof' [§ 7(c)]
casts upon the 'proponent' is the burden of coming forward with
proof, and not the ultimate burden of persuasion");
Old Ben Coal
Corp. v.
Interior Bd. of Mine Operations Appeals, United
States Dept. of Interior, 523 F. 2d 25, 40 (CA7 1975) ("burden
of putting forth a
prima facie case");
Maine v.
United States Dept. of Labor, 669 F.2d
827, 829 (CAl1982) (burden "of producing sufficient evidence to
make out a prima facie case"); but cf.
Kerner v.
Flemming, 283 F.2d
916, 921-922, and n. 8 (CA2 1960) (assuming,
arguendo,
the term meant burden of persuasion). And at least since
Transportation Management, every Court of Appeals (except
the one below in this case) to have reached the issue has
understood that the question was firmly settled by
291
Transportation Management and its predecessor in the
District of Columbia Circuit,
Environmental Defense Fund.
See,
e. g., Freeman United Coal Mining Co. v.
Office of
Workers' Compensation Programs, 988 F.2d
706, 711 (CA7 1993) ("The Supreme Court has resolved this
ambiguity [in § 7(c)]. 'Burden of proof' as that term is used in
the APA means the burden of going forward, not the burden of
persuasion");
Hazardous Waste Treatment Council v.
EPA,
886 F. 2d 355, 366 (CADC 1989)
(per curiam) ("initial
burden of going forward with a
prima facie case"), cert.
denied, 498 U. S. 849 (1990);
Merritt v.
United
States, 960 F.2d
15, 18 (CA2 1992) ("refers only to the burden of going forward
with evidence, not the burden of persuasion");
Bosma v.
United States Dept. of Agriculture, 754
F.2d 804, 810 (CA9 1984) ("burden of going forward with
evidence");
Alameda Cty. Training and Employment Bd./Associated
Community Action Program v.
Donovan, 743 F.2d
1267, 1269 (CA9 1984) ("merely places the burden of production
on [proponent], not the ultimate burden of persuasion");
Dazzio v.
FDIC, 970 F. 2d 71, 77 (CA5 1992) ("refers
only to the burden of going forward with evidence, not the ultimate
burden of persuasion");
Skukan v.
Consolidation Coal
Co., 993 F.2d
1228, 1236-1238 (CA6 1993) ("burden of production"). Moreover,
the lower courts' views were in accord with the commentators. See,
e. g., 3 Davis, Administrative Law Treatise § 16.9, at 257
(burden of proof in § 7(c) means only "burden of going forward" and
not burden of persuasion) (citing
Environmental Defense Fund,
supra); 1 Koch, Administrative Law and Practice § 6.42, at 245
(1994 Supp.) ("The phrase 'burden of proof' as used in the AP A §
556(d) means the burden of going forward with evidence. That phrase
in the context of the AP A does not mean the ultimate burden of
persuasion") (footnote omitted); 4 Stein, Mitchell, & Mezines,
Administrative Law § 24.02, at 24-21, n. 3 (§ 7(c) "only directs
that the [proponent] has the burden of production"); G. Edles &
J. Nelson, Federal Regulatory Process § 6.7, pp. 151-152 (2d
292
SOUTER, J., dissenting
ed. 1992) ("[T]he burden of proof under the APA refers only to
the burden of going forward with evidence") (each citing
Transportation Management, 462 U. S., at 403, n. 7).
Nor is there any argument that the vitality has gone out of
Transportation Management over the last 11 years. This
Court, indeed, has cited the case for the very proposition that the
Court now repudiates, in the course of explaining that we ourselves
had used the term "burden of proof" in Title VII suits to mean
burden of production, not burden of persuasion:
"[T]o the extent that those cases speak of an employer's 'burden
of proof' with respect to a legitimate business justification
defense ... they should have been understood to mean an employer's
production-but not persuasion-burden. Cf., e. g., NLRB v.
Transportation Management Corp., 462 U. S. 393, 404, n. 7
(1983)." Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 660
(1989).
If the
Wards Cove Court could rely on
Transportation
Management to hold that in innumerable Title VII
disparateimpact cases over many years we (and the lower courts) had
used the term "burden of proof" to mean only "burden of production"
it is hard to place much weight on the majority's reference to a
consistent practice to the contrary since 1923.
Today's decision to repudiate
Transportation Management
is made more regrettable by the fact that the Court's adherence to
the case in
Ward's Cove came after the Court had been made
aware of the role of the true doubt rule in black lung litigation,
which presupposed
Transportation Management's reading of §
7(c). In
Mullins Coal Co. of Va. v.
Director, Office of
Workers' Compensation Programs, 484 U. S. 135 (1987), upholding
the Secretary of Labor's interpretation of a BLBA interim
regulation about the prima facie standard for invoking a statutory
presumption of eligibility, this Court explicitly noted the
operation of the true doubt
293
rule once both parties' evidence had been introduced and (as
here) the presumption had dropped out of the case. See id., at 144,
n. 12 (true doubt rule "ensures that the employer will win, on
invocation or rebuttal, only when its evidence is
stronger
than the claimant's"). We acknowledged the Secretary's position
that the BLBA "'embodies the principle that doubt is to be resolved
in favor of the claimant, [which] plays an important role in claims
determinations ... [,J''' id., at 156, n. 29 (quoting 43 Fed. Reg.
36826 (1978)), and that the Benefits Review Board "has consistently
upheld the principle that, where true doubt exists, that doubt
shall be resolved in favor of the claimant," 484 U. S., at 144, n.
12 (internal quotation marks and citation omitted).
Had we, indeed, suggested otherwise, we would have been bucking
the strong tide that the Court turns back today, for the other
federal courts have been applying some form of the true doubt rule,
either as judicial statutory interpretation or as the agency's
rule, in adjudicating claims after enactment of the AP A, as well
as before it, for a good 50 years. See,
e. g., Friend v.
Britton, 220 F.2d
820, 821 (CADC 1955) ("Doubts, including the factual, are to be
resolved in favor of the employee or his dependent family");
Bath Iron Works Corp. v.
White, 584
F.2d 569, 574 (CAl1978) ("[T]he judicial policy [is] that 'all
doubtful questions are to be resolved in favor of the injured
employee' ... in order to place the burden of possible error on the
employer who is better able to bear it");
Volpe v.
Northeast Marine Terminals, 671 F.2d
697, 701 (CA2 1982) ("[A]ll doubtful questions of fact [are to]
be resolved in favor of the injured employee") (internal quotation
marks omitted); 5
Adkins v.
Director, Office of
5 Until the decision below, the Court of Appeals for the Third
Circuit itself applied the true doubt rule. See,
e. g.,
Bonessa v.
United States Steel Corp., 884 F.2d
726, 730 (1989) ("The [Administrative Law Judge] noted that the
contradictory nature of the x-ray evidence established 'true doubt'
as to the existence of pneumoconiosis and resolved that doubt, as
is proper, in favor of [claimant]").
294
SOUTER, J., dissenting
Workers' Compensation Programs, Dept. of Labor, 958 F.2d
49, 52, n. 4 (CA4 1992) ("Equally probative evidence creates a
'true doubt,' which must be resolved in favor of the miner");
Greer v.
Director, Office of Workers' Compensation
Programs, Dept. of Labor, 940 F.2d
88, 91 (CA4 1991) ("We have a true doubt. We give [claimant]
the benefit of that doubt");
Army &
Air Force
Exchange Servo v.
Greenwood, 585 F.2d
791, 794 (CA5 1978) ("[T]he judicial policy has long been to
resolve all doubts in favor of the employee and his family");
Skukan v.
Consolidation Coal Co., 993 F. 2d, at 1239
("true doubt rule is utilized to have equally probative but
conflicting evidence weighed in favor of the claimant");
Freeman
United Coal Mining Co. v.
Office of Workers' Compensation
Programs, 988 F. 2d, at 711 (applying true doubt rule as
"judicial assignment of the burden of persuasion to the employer");
Jones v.
Director, Office of Workers' Compensation
Programs, Dept. of Labor, 977 F.2d
1106, 1109 (CA7 1992) (true doubt rule places "burden of
possible error on those best able to bear it," i.
e.,
employers);
Ware v.
Director, Office of Workers'
Compensation Programs, Dept. of Labor, 814
F.2d 514, 517 (CA8 1987) ("[A]ny doubts should be resolved in
favor of the disabled miner");
Parsons Corp. of Cal. v.
Director, Office of Workers' Compensation Programs, Dept. of
Labor, 619 F.2d
38, 41 (CA9 1980) ("statutory policy that all doubtful
questions of fact be resolved in favor of the injured employee");
Hansen v.
Director, Office of Workers' Compensation
Programs, Dept. of Labor, 984 F.2d
364, 369 (CAlO 1993) (" 'true doubt' rule applies where equally
probative but contradictory medical documentation exists");
Bosco v.
Twin Pines Coal Co., 892
F.2d 1473, 1476 (CAlO 1989) ("[D]oubts should be resolved in
favor of the disabled miner");
Stomps v.
Director, Office
of Workers' Compensation Programs, Dept. of Labor, 816 F.2d
1533, 1534 (CAll 1987) (same); for a sampling of the pre-APA
cases, see,
e. g.,
F. H. McGraw &
Co. v.
Lowe, 145 F.2d 886, 887, n. 2, 888 (CA2 1944) (upholding
agency policy that "doubtful questions
295
incapable of scientific resolution are to be resolved in favor
of the workman" under LHWCA);
Southern S. S.
Co. v.
Norton, 101 F.2d 825, 827 (CA3 1939) ("doubts should be
resolved in [claimant's] favor" under LHWCA);
Southern Pac.
Co. v.
Sheppeard, 112 F.2d 147, 148 (CA5 1940) ("[W]here
there is doubt it should be resolved in favor of the injured
employee or his family" under LHWCA).
III
Because § 7(c) is silent on the burden of persuasion, the job of
placing it is left to the bounded discretion of the agencies,
subject to judicial review, when interpreting their organic
statutes, by customary reference to statutory text, congressional
intent, experience, policy, and relevant evidentiary probabilities.
See 3 Davis, Administrative Law § 16.9, at 257-258.6 This is only
to be expected, since the issue of who bears the risk of
nonpersuasion raises a traditional "question of policy and fairness
based on experience in ... different situations."
Keyes v.
School Dist. No.1, Denver, 413 U. S. 189, 209 (1973)
(quoting 9 J. Wigmore, Evidence § 2486, p. 275 (3d ed. 1940));
accord, 2 J. Strong, McCormick on Evidence § 337, p. 427 (4th ed.
1992), not a matter readily lumped in with the formalities of
procedure. While the AP A was meant to provide for uniform
procedures in administrative adjudications, it is unremarkable that
it stopped short of making a substantive policy choice that in
every formal hearing the burden of persuasion must rest on one
party or the other.
6 See,
e. g., NLRB v.
Transportation Management
Corp., 462 U. S.
393, 401-403 (1983);
NLRB v.
Curtin Matheson
Scientific, Inc., 494 U. S. 775, 786-796
(1990);
Bowen v.
Yuckert, 482 U. S. 137, 146-147,
n. 5 (1987);
Garrett v.
Moore-McCormack Co., 317 U. S. 239, 246-249
(1942);
Concrete Pipe &
Products of Cal., Inc. v.
Construction Laborers Pension Trust for Southern Cal.,
508 U. S.
602,621-631 (1993); 38 CFR §3.102 (1993) (doubts in veteran's
benefits adjudications resolved in favor of claimant); 38 U. S. C.
§ 5107 (1988 ed., Supp. IV) (same).
296
SOUTER, J., dissenting
Nor, apart from § 7(c), are the choices made under the statutes
in question here vulnerable on judicial scrutiny. In LHWCA cases
over the last 50 years, the assignment to the employer of the risk
of nonpersuasion can be seen as placing it on "those best able to
bear it,"
F. H. McGraw &
Co., supra, at 887, 888,
and as comporting with both the remedial nature of the LHWCA, see
Northeast Marine Terminal Co. v.
Caputo, 432 U. S. 249, 268
(1977), and the dangerous nature of longshoring, see S. Rep. No.
92-1125, p. 2 (1972). As to the BLBA, there is no question about
the consistency of congressional intent with the recitation in the
Secretary's regulation, 20 CFR § 718.3(c) (1993), that "Congress
intended that [BLBA] claimants be given the benefit of all
reasonable doubt as to the existence of total or partial disability
or death due to pneumoconiosis." As Congress explained, the BLBA
"is intended to be a remedial law .... In the absence of definitive
medical conclusions there is a clear need to resolve doubts in
favor of the disabled miner or his survivors." S. Rep. No. 92-743,
p. 11 (1972). The true doubt rule has been applied in these
benefits adjudications for more than 15 years, see,
e. g.,
Black Lung-A Study in Occupational Disease Compensation (1976),
reprinted in Black Lung Benefits Reform Act, 1976: Hearings on H.
R. 10760 and S. 3183 before the Subcommittee on Labor of the Senate
Committee on Labor and Public Welfare, 94th Cong., 2d Sess., 459,
488-489 (1976) ("[C]onfiicts in the evidence are required to be
resolved by the adjudicator in favor of the claimant");
Provance v.
United States Steel Corp., 1 BLR 1-483,
485-486 (Benefits Rev. Bd. 1978), and the Secretary's true doubt
rule fully comports with Congress's "expectation that the Secretary
of Labor will promulgate standards which give the benefit of any
doubt to the coal miner." S. Rep. No. 95-209,
The court below did not deny the harmony of the true doubt rule
with congressional policy in these cases, but it held instead that
the use of the true doubt rule in BLBA
297
cases conflicts with 20 CFR § 718.403 (1993), a Department of
Labor regulation providing that "[e]xcept as provided in this
subchapter, the burden of proving a fact alleged in connection with
any provision of this part shall rest with the party making such
allegation." But the phrase "burden of proving," like its cognate,
"burden of proof," is susceptible of two meanings, including the
meaning given by the agency interpretation, as imposing only the
burden of producing evidence. The Department of Labor is entitled
to "substantial deference" in the interpretation of its own
regulations, and the agency's interpretation need only be
reasonable in light of the regulations' text and purpose,
Martin v.
Occupational Safety and Health Review
Comm'n, 499 U. S.
144,150-151 (1991); accord,
Bowles v.
Seminole
Rock &
Sand Co.,
325 U. S. 410, 414
(1945). The agency's interpretation of its regulation is surely
reasonable here, given our own prior interpretation of "burden of
proof" as referring only to production.
The Department of Labor's decision in the true doubt rule, to
assign the burden of persuasion to the employer in cases involving
harms to workers in the longshore and coal mining industries, is
thus permissible and free from conflict with § 7(c) of the APA. I
would sustain the Department's rule, and accordingly offer this
respectful dissent.
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