All right, we're going to hear Mingo Logan Cole company versus Owens and Mr. Manningly when you're ready. May it please the court I'm William Manningly here on behalf of the Co-Mide Operator, Mingo Logan Cole Company. The two cases you're going to hear today are both black lung cases as you've already acknowledged. They deal with a 124-word addition to the ACA section 1556 and how it reapplies certain provisions of the Black Lung Benefits Act. This case deals with the re-application of 30 USC 921C4 as it applies to minor's claims. The parties agree on certain things and it's always easier to get that out. The parties agree Mr. Owens was a long time co-minor. He almost worked for 30 years. The parties agree that he's totally disabled. Why does that matter? That matters because of the change in the Black Lung Benefits Act. He isn't titled to a 15-year presumption of total disability due to pneumoconiosis because he was a long time co-minor and he has a disabling pulmonary disease. That means Mingo Logan my client has to rebut that presumption. So once the administrative law judge found correctly that the presumption was invoked, the administrative law judge concluded that Mingo Logan had to rule out co-min employment as a cause of the disability and that's where we start to go astray
. 30 USC 921C4 has two provisions. It says the secretary may rebut the presumption of total disability due to pneumoconiosis by showing there's no pneumoconiosis or that the pulmonary impairment did not arise out of or in connection with employment in a coal mine. That's second provision. The disability rebuttal provisions the focus of the argument here this morning. And the real question is must a coal mine operator rule out any possible connection between coal mine employment and disability or can the operator show impairment from pneumoconiosis but still show something else was the cause of the disability. That is to say can an operator show pneumoconiosis is mild and some other disease explains the disabling pulmonary disease and still rebut. Now section 921C has five subsections before. You say the two provisions attributed to the secretary doesn't cover the full logical possibilities. That there's a third logical possibility which is the causation between pneumoconiosis and the disability. That is correct. And showing that connection you suggest that you would be able to show a focus on the substantiality of the causation. Yes. If it's mild it's not substantial at least try. That's a pretty narrow gate but logically you're saying it exists
. It is. So therefore it's meaningful that the word secretary was used and limited by usury and so that you should be able to under that provision you should be able to try to prove this third logical possibility. That is exactly. That's the just of the argument. That 921C has five subdivisions. The fourth one for whatever reason says is limited to the secretary. The agency agrees with me. Page 11 of their brief footnote 5. They say that an employer can rebut the presumption. And with some persuasion they argue that the two provisions attributed to the secretary, the way to rebut are all of the logical possibilities. And I must say you start looking at the act and the way the things are defined in causation of this and causation of that. It gets mighty close and we were trying to figure out logically whether there is an opportunity for you to prove anything else, other than those two things to rebut. And your argument is you would focus on the substantiality of causation between pneumoconiosis and the disability. Correct
. Using the sentence and usury that we cited in our brief that says the operator should be able to rely on showing pneumoconiosis as mild and still be able to rebut the presumption. For mild, I assume you say it's not a doesn't fit within the causation, partial causation. Correct. And we get there. How do you, I mean, even assuming that then how do you rebut the presumption? What evidence are you going to present? You didn't even in this case make any substantive claim of how you would go about rebutting that presumption. Yes. In this case, I think we did make a substantive claim that we rebutted the presumption. And as much as we relied on the opinions of doctors as out of our and hippensteel, who explained that this man's impairment was one that was due to an idiopathic pulmonary fibrosis, while they could exclude coalmine dust as causing this disease, that his disease did not fit in the usual parameters of co-workers pneumoconiosis. It progressed too quickly. It had a mild restrictive airways presentation. It had severe hypoxemia. It had severe diffusion impairment based on their clinical judgment and the radiographic. Wasn't that all rejected on the merits by the ALJ below? That is what the other parties have suggested. However, the ALJ looked through the wrong lenses in looking at the evidence
. They had been awfully tough standard on appeal for you to convince me of that. Well, the ALJ said you have to rule out any causal connection. And when the ALJ did that, that put up too high of a gate for my client to cross. My client doesn't have to exclude any possibility that coalmine dust might in fact be responsible for. That almost seems to be inverting the presumption in favor of the operator. That doesn't make any sense. No. Otherwise, you're giving the claim into double presumption. The claim is already benefiting from a presumption of disability due to pneumoconiosis, having never proven pneumoconiosis. By virtue of the years of employment, by virtue of the disability, it is presumed that claimants disabled due to pneumoconiosis. Grinage collaries explain- I guess the conceptual problem that I understand that Judge Diaz to be raising just sort of getting back on the construct we were talking about is if we give you the benefit of trying to prove this mild causation less substantial. Judge Diaz is asking, hasn't the facts that are found, even if we give you the benefit of that legal structure, haven't the facts, or even though they may or not jump through that hoop in that way, you're still precluded because of the findings of fact. In this case, unless there's no substantial evidence to support it. I don't think we can give the agency fact finder that benefit of the doubt is to what they would have done with this third standard
. Except they found facts that could be supported under- We can find with respect to the causation of pneumoconiosis. The agency fact finder said that the x-rays established the existence of pneumoconiosis and that the medical opinions specifically that of doctors or Dr. Rasmussen and the treating visions were more persuasive than Dr. Zalibar and Dr. Hibensdial. Is that causation for them? No, because there are errors in the ALJ's weighing of the evidence. That goes to the factual argument. In other words, my point is if we were to conclude that they came out factually, the deferential review, that their factual findings can't be challenged, then it seems to me you may gain the legal structure, but the facts still may not help you in this case. I think that's the question Judge Diaz is presenting. I may win the battle but lose the war. Well, if you can character it may not be a battle or a war. It's a legal structure that you may be correct on, but it may have no import with respect to whether he gets benefits in this case. One of the reasons we have to go back and reset the ALJ's gyroscope to look at the three different issues is because of the question of this rule out standard. The rule out standard is a child of the prior regulations
. Prior regulations were... I have a question about that, Mr. Manningley, which is really a lot more fundamental than the discussion so far. Your focus on user in the statute confuses me a little bit, because aren't we here on the regulation? Well, we are here on the statute. No, my question is aren't we here on the regulation? I'm glad to argue that you're here on the statute. And the user doesn't say anything about the regulation. And as I examine the record, you didn't say anything about the validity of the regulation before the board. The regulation is invalid because what the secretary did was just... But did you raise that issue before the board? I believe it was raised. I can go back
. Can you point to me in the record? I will double check and come back and tell you... But did you agree that you needed to raise the validity of the regulation before the board for this court to examine that issue? Respectfully, no, I don't agree because it would have been useless before the board. The board's case law was... Are you invoking a futility exception? Has this court ever adopted a futility exception in the administrative context? I believe it has. And you will address that when you come back to us on the robot. You would be invoking the statute and the regulation is a little broader. The regulation tries to trace the statute. Well, it's a lot broader, isn't it? Because the statute only applies to the secretary. Right. And the regulation, the secretary says, oh no
. We think this is a good rule and it should apply to operators as well. And that's the problem. The secretary doesn't make any provision for what user he said the operator can do and that is rebut in methods the secretary can't do. And you're going to tell us where you made that argument before the board. I will. Okay. The regulation at issue 7-18-204 is the key to this case, I think. Because the claim it has to show, Numericoniosis is causing a material adverse effect on the pulmonary impairment or materially worsens or aggravates the pulmonary impairment. So the converse ought to be able to be shown for the employer to establish rebuttal. Now, if the employer can show that Numericoniosis didn't have a material adverse effect or materially worsened, it logically stands to reason that you could be showing Numericoniosis caused some impairment, but it didn't make a difference. That provision wouldn't be allowed under the two pronged interpretation by the agency, which says you have to disprove the existence of Numericoniosis or rule out it causing any of the disability in a particular case. So that is what the permanent regulations have defined disability to be. And when you examine that, the operator has to be able to show Numericoniosis can be mild to establish that the presumption can be rebutted. It's a small window
. How does a court of appeals handle situation where a statute, everybody seems to agree, that a statute has to be read one way and the regulation doesn't follow the statute. And there's no big argument on the raised about the regulation being now being illegal. I mean, can we choose to apply the statute and ignore the regulation in that circumstance, or are we bound to apply the regulation and bypass a statute which has seniority, so to speak? I think the statute trumps the regulation. It does on a challenge. The question is, how do we handle it if we don't have a challenge before us when we have two? We recognize an incompatibility between the statute and the regulation. The futility doctrine helps on that standpoint that the board case law was clear that the regulation would be applied regardless of what the statute had to say, so that this court can handle the denouvo law question. And I think that's the real issue. Does this court have the power to handle this to a sponte? Yes. All right. You got some rebuttal. Mr. Clerk. Klein. Are you next? May I please the court? My name is John Klein
. I represent Mr. Owens. Regarding the first issue, the rebuttal standard, the claimant agrees with the secretary's position and defers any questions on that issue to the solicitor. I would like to say a few things about Mr. Owens though. As Mr. Manningley said, he was an underground coal miner for 29 years. He developed a severe total pulmonary disability, and he is essentially a non-smoker and had no other pulmonary risk factors other than his 20 years. He had a total of 29 years of exposure to coal mine dust, which included working 13 years in a 42-inch coal seam, and a lot of exposure to both rock and silica dust. His claim has been a litigation for over four years, and he literally went to his grave worrying about whether his benefits would be upheld. His wife still lives with that uncertainty. Regarding the merits, there are very few of these claims that are strictly textbook, but this case is reasonably close. The ALJ found that a preponderance of the X-ray evidence supported pneumoconiosis and also the CT scan evidence. The ALJ gave credit to Dr. Raspussen's finding of disability due to pneumoconiosis, and that was supported by the miners to treating pulmonologists. Consequently, the employer failed to prove by a proponents of evidence that Mr. Owens did not have pneumoconiosis or that his impairment was not caused by or arised out of his coal mine employment. The employer's experts maintained that Mr. Owens has an idiopathic disease of unknown cause which in itself is an indication of uncertainty. The employer's experts acknowledged that the diagnosis requires exclusion of other known risk factors in the ALJ reasonably found that the employer's experts were entitled to less weight because they did not adequately explain why 29 years of exposure to coal mine dust was not a contributing factor. They did not fully address the findings of pneumoconiosis by the two treating pulmonologists. The ALJ provided rational reasons for giving greater weight to Dr. Raspussen because his opinion was supported by the positive X-rays and CT scans and the severe impairment on arterial blood gas studies, as well as the records of the treating pulmonologists. As stated by the Benefits Review Board, the law judge's findings were supported by substantial evidence and just beyond the determined that it was beyond the scope of review to re-wave them, particularly in a case like this where the miner had no other risk factors except for his 29 years of exposure to coal mine dust. Thank you for considering my mind. Thank you, Mr. Prime. Ms
. Raspussen's finding of disability due to pneumoconiosis, and that was supported by the miners to treating pulmonologists. Consequently, the employer failed to prove by a proponents of evidence that Mr. Owens did not have pneumoconiosis or that his impairment was not caused by or arised out of his coal mine employment. The employer's experts maintained that Mr. Owens has an idiopathic disease of unknown cause which in itself is an indication of uncertainty. The employer's experts acknowledged that the diagnosis requires exclusion of other known risk factors in the ALJ reasonably found that the employer's experts were entitled to less weight because they did not adequately explain why 29 years of exposure to coal mine dust was not a contributing factor. They did not fully address the findings of pneumoconiosis by the two treating pulmonologists. The ALJ provided rational reasons for giving greater weight to Dr. Raspussen because his opinion was supported by the positive X-rays and CT scans and the severe impairment on arterial blood gas studies, as well as the records of the treating pulmonologists. As stated by the Benefits Review Board, the law judge's findings were supported by substantial evidence and just beyond the determined that it was beyond the scope of review to re-wave them, particularly in a case like this where the miner had no other risk factors except for his 29 years of exposure to coal mine dust. Thank you for considering my mind. Thank you, Mr. Prime. Ms. Early. May I please the court. My name is Sarah Hurley and I represent the Director of Office of Workers' Compensation, the United States Department of Labor. The Black Lung Benefits Act 15-year presumption provides a rebuttal presumption for coal miner who's worked for 15 years in underground coal mine employment. If he proves that he suffers from a totally disabling respiratory impairment, he's rebloodedly presumed to suffer from pneumoconiosis and also that his totally disabling respiratory impairment is due to his coal mine dust exposure. Everyone in this case agrees that the presumption can be rebutted in at least two ways. The party opposing entitlement can prove that the miner doesn't have clinical or legal pneumoconiosis and they can also disprove the connection between the miner's disability and coal dust exposure. The issue in this case is what an operator must prove to establish a rebuttal under the second method showing that the miner's impairment did not understand them to actually be raising a third method which they say is precluded if the statute is applied to them. The third method would be to show that the pneumoconiosis didn't contribute sufficiently to the disability and they would like to show that it's mild and falls below that threshold, the statutory threshold, substantial contribution. Logically it seems like that would be available unless we were to read the statute. I gather your view is the statute even if it says secretary really lists the only two logical possibilities. That's exactly right. And they suggest that there is a third logical possibility which I just described and maybe you could address that. Yes, you're under I understand but your point but our interpretation of the operator's argument that they're trying to disprove disability causation by proving that pneumoconiosis only more cold dust exposure only contribute mildly to the impairment
. Early. May I please the court. My name is Sarah Hurley and I represent the Director of Office of Workers' Compensation, the United States Department of Labor. The Black Lung Benefits Act 15-year presumption provides a rebuttal presumption for coal miner who's worked for 15 years in underground coal mine employment. If he proves that he suffers from a totally disabling respiratory impairment, he's rebloodedly presumed to suffer from pneumoconiosis and also that his totally disabling respiratory impairment is due to his coal mine dust exposure. Everyone in this case agrees that the presumption can be rebutted in at least two ways. The party opposing entitlement can prove that the miner doesn't have clinical or legal pneumoconiosis and they can also disprove the connection between the miner's disability and coal dust exposure. The issue in this case is what an operator must prove to establish a rebuttal under the second method showing that the miner's impairment did not understand them to actually be raising a third method which they say is precluded if the statute is applied to them. The third method would be to show that the pneumoconiosis didn't contribute sufficiently to the disability and they would like to show that it's mild and falls below that threshold, the statutory threshold, substantial contribution. Logically it seems like that would be available unless we were to read the statute. I gather your view is the statute even if it says secretary really lists the only two logical possibilities. That's exactly right. And they suggest that there is a third logical possibility which I just described and maybe you could address that. Yes, you're under I understand but your point but our interpretation of the operator's argument that they're trying to disprove disability causation by proving that pneumoconiosis only more cold dust exposure only contribute mildly to the impairment. That's really the second method. They're trying to disprove disability causation. The question is what that one just links causatively the pulmonary disease with the work at the causation right. That's true it says arising out of cold dust exposure. And so if they're unable to prove they're willing to give you that and they're willing to say he has a coniosis but they still want to rebut the requirement that the pneumoconiosis have some contributing or substantial contributing cause to the disability which is the fundamental statutory requirement for benefits. And they want to be able to show that which is not included in those two. And it seems to me logically that should unless we can screw secretary to include operator but if we don't if we take the use rely then it seems to me that would be another way they could do it even though I think it's a very tough way. And in this case there's still the open question of whether the facts allow for that if the facts are supported. Right that that's true. I agree with the exact exactly what you're saying but we still believe that by showing by breaking the connection between the impairment and the coal mine dust exposure that's the same as proving that that the minor's disability dinder rise out of the cold dust exposure because you would be disapproving the link between pneumoconiosis which is only called the vaccine. And it's caused by the cold dust exposure as defined in the act. I mean the disability causation prong takes care of that if they can can disprove the link between the disability and the coal mine dust exposure that's the disease that's the second is it. That's the presumption of the second the second isn't that restricted. The second is between the work and the pulmonary disease right
. That's really the second method. They're trying to disprove disability causation. The question is what that one just links causatively the pulmonary disease with the work at the causation right. That's true it says arising out of cold dust exposure. And so if they're unable to prove they're willing to give you that and they're willing to say he has a coniosis but they still want to rebut the requirement that the pneumoconiosis have some contributing or substantial contributing cause to the disability which is the fundamental statutory requirement for benefits. And they want to be able to show that which is not included in those two. And it seems to me logically that should unless we can screw secretary to include operator but if we don't if we take the use rely then it seems to me that would be another way they could do it even though I think it's a very tough way. And in this case there's still the open question of whether the facts allow for that if the facts are supported. Right that that's true. I agree with the exact exactly what you're saying but we still believe that by showing by breaking the connection between the impairment and the coal mine dust exposure that's the same as proving that that the minor's disability dinder rise out of the cold dust exposure because you would be disapproving the link between pneumoconiosis which is only called the vaccine. And it's caused by the cold dust exposure as defined in the act. I mean the disability causation prong takes care of that if they can can disprove the link between the disability and the coal mine dust exposure that's the disease that's the second is it. That's the presumption of the second the second isn't that restricted. The second is between the work and the pulmonary disease right. There's nothing to do with pneumoconiosis under the second. Well but because the act now defines pneumoconiosis as legal pneumoconiosis which is any impairment. You hit on a very difficult problem because then you get the clinical. But in the end that's definition only but in the end you go back to what is it 725 or something and the requirements for showing for showing you have to show that pneumoconiosis itself however defined was a substantially contributing cause of the virus. Right but this this circuit and the department's regulations require an operator in this situation to rule it out and that has been this court's precedent and the department's regulations for its long standing and it makes sense in this type of situation because we have a minor. The whole idea behind the 15 year presumption was to assist a minor that had 15 years you know a high risk minor for he's his path for eligibility and in this case a minor who invokes the presumption he's already established his long term dust exposure that he has a totally disabling respiratory impairment and he also really has established that he has pneumoconiosis. He gets a presumption of pneumoconiosis and he gets a presumption that his disability came out of his work coal mine work. But well I mean if he didn't have pneumoconiosis the operator could disprove pneumoconiosis that's another way. But they're not trying to do that they're going to say I guess they're going to argue in that yes enough evidence for pneumoconiosis they just don't think it was rose to the sufficient level of causation for disability. But the statute requires a sufficient level of causation or just that the pneumoconiosis be part of the disabling condition. The statute doesn't address the what what's substantial this you have to get to a substantial level what does that mean. Well it means more than a diminimus it means more than a diminimus cause it has to have some tangible effect on on the minors disability. And we have that on this record right no we don't have that on this record. We have a credibility determination made by the ALJ that that the doctors opinions who were sufficient really to rule out just were playing not credible on any standard at all in this case
. There's nothing to do with pneumoconiosis under the second. Well but because the act now defines pneumoconiosis as legal pneumoconiosis which is any impairment. You hit on a very difficult problem because then you get the clinical. But in the end that's definition only but in the end you go back to what is it 725 or something and the requirements for showing for showing you have to show that pneumoconiosis itself however defined was a substantially contributing cause of the virus. Right but this this circuit and the department's regulations require an operator in this situation to rule it out and that has been this court's precedent and the department's regulations for its long standing and it makes sense in this type of situation because we have a minor. The whole idea behind the 15 year presumption was to assist a minor that had 15 years you know a high risk minor for he's his path for eligibility and in this case a minor who invokes the presumption he's already established his long term dust exposure that he has a totally disabling respiratory impairment and he also really has established that he has pneumoconiosis. He gets a presumption of pneumoconiosis and he gets a presumption that his disability came out of his work coal mine work. But well I mean if he didn't have pneumoconiosis the operator could disprove pneumoconiosis that's another way. But they're not trying to do that they're going to say I guess they're going to argue in that yes enough evidence for pneumoconiosis they just don't think it was rose to the sufficient level of causation for disability. But the statute requires a sufficient level of causation or just that the pneumoconiosis be part of the disabling condition. The statute doesn't address the what what's substantial this you have to get to a substantial level what does that mean. Well it means more than a diminimus it means more than a diminimus cause it has to have some tangible effect on on the minors disability. And we have that on this record right no we don't have that on this record. We have a credibility determination made by the ALJ that that the doctors opinions who were sufficient really to rule out just were playing not credible on any standard at all in this case. And in fact this case doesn't even the ALJ didn't even apply the rule out standard in this case. Well I think you misunderstood my question we have a sufficient finding of disability. Oh yes so definitely yes all parties agree that the man was totally disabled didn't know what to do. Well to get refined that question for my purposes a little bit you would argue there is substantial I mean there's evidence to support substantial contribution of pneumoconiosis. One of the doctors concluded that causation. Definitely Dr. rest me yes as we would. Let me ask you about this problem that Judge Davis raised the regulation does seem to be out of sync with the statute as is now interpreted by usury. Well how should an appellate court handle that when we see the statute and let's assume we want to construe or were bound to construe the statute the way usury secretary means secretary. What do we do with the regulation that turns the trample that. You would you would look to see if our regulation well first you'd look to see this to see if the statute definitely spoke to the issue and it does but you would also look to our agency's definition to see if it's a permissible interpretation of the statute. What if we include it's not we read it. Then I think that you would have to probably invalidate the regulation I guess if it's not permissible. Do you can see that the issue was preserved before the board
. And in fact this case doesn't even the ALJ didn't even apply the rule out standard in this case. Well I think you misunderstood my question we have a sufficient finding of disability. Oh yes so definitely yes all parties agree that the man was totally disabled didn't know what to do. Well to get refined that question for my purposes a little bit you would argue there is substantial I mean there's evidence to support substantial contribution of pneumoconiosis. One of the doctors concluded that causation. Definitely Dr. rest me yes as we would. Let me ask you about this problem that Judge Davis raised the regulation does seem to be out of sync with the statute as is now interpreted by usury. Well how should an appellate court handle that when we see the statute and let's assume we want to construe or were bound to construe the statute the way usury secretary means secretary. What do we do with the regulation that turns the trample that. You would you would look to see if our regulation well first you'd look to see this to see if the statute definitely spoke to the issue and it does but you would also look to our agency's definition to see if it's a permissible interpretation of the statute. What if we include it's not we read it. Then I think that you would have to probably invalidate the regulation I guess if it's not permissible. Do you can see that the issue was preserved before the board. No we don't can see that no. Do you believe the issue needed to be raised before the board in order for us to consider it other than soliciting. Yes yes you're on and we would we would like a chance to address it definitely and we didn't have that question. What if we're writing the opinion and we all sudden observe a regulation that we conclude is not justified by the statute. Do we apply the statute or do we apply the reg? Well you would have to apply the statute because the statute trumps the regulation definitely agree but we believe that our. I'm going on hypotheticals and trying to figure out because there is does seem to me and I can see this part that there is some tension between the reg and the statute as read under use. There is some tension but we believe that really an issue in this case is what an operator has to prove under that second method and so there really isn't that much of attention. Is the point beside the point because what user he said about the statute as a matter of law applies to the regulation. The Supreme Court's opinion on what the statute says does bind us right in our writing our regulation we do can see that. So I take it from that concession that the operator didn't really have to raise the issue of the regulation if in fact the argument is the Supreme Court has already left this little window that we can climb through. Well they did. I think what you just said is that if the window exists in the statute it exists necessarily in the regulation. That is true the Supreme Court did leave us a window in us in their footnote. They did leave open the possibility that an agency could promulgate substantive regs perhaps where this statute is not clear
. No we don't can see that no. Do you believe the issue needed to be raised before the board in order for us to consider it other than soliciting. Yes yes you're on and we would we would like a chance to address it definitely and we didn't have that question. What if we're writing the opinion and we all sudden observe a regulation that we conclude is not justified by the statute. Do we apply the statute or do we apply the reg? Well you would have to apply the statute because the statute trumps the regulation definitely agree but we believe that our. I'm going on hypotheticals and trying to figure out because there is does seem to me and I can see this part that there is some tension between the reg and the statute as read under use. There is some tension but we believe that really an issue in this case is what an operator has to prove under that second method and so there really isn't that much of attention. Is the point beside the point because what user he said about the statute as a matter of law applies to the regulation. The Supreme Court's opinion on what the statute says does bind us right in our writing our regulation we do can see that. So I take it from that concession that the operator didn't really have to raise the issue of the regulation if in fact the argument is the Supreme Court has already left this little window that we can climb through. Well they did. I think what you just said is that if the window exists in the statute it exists necessarily in the regulation. That is true the Supreme Court did leave us a window in us in their footnote. They did leave open the possibility that an agency could promulgate substantive regs perhaps where this statute is not clear. I think perhaps you misunderstood me. What I mean the window is the window the operator wants to climb through in this case he doesn't have to climb through the window in the statute because us recessed the statute doesn't plot it the operator but he's drawing from us or if I understand the argument. The basis for a window in the regulation. And I thought you just agreed with that. I might want to refine that a bit. Okay. Got a little time to do that. Actually the statute actually doesn't define what an operator much proved to about the presumption. I mean the statute does say what the secretary must prove but it doesn't say what the operator must prove. And I think as we discussed in our brief what the operator must prove is exactly what the secretary has to prove in this case. And that's that's basically okay. Mr. Mattingley. The operator can prove something less in the secretary
. I think perhaps you misunderstood me. What I mean the window is the window the operator wants to climb through in this case he doesn't have to climb through the window in the statute because us recessed the statute doesn't plot it the operator but he's drawing from us or if I understand the argument. The basis for a window in the regulation. And I thought you just agreed with that. I might want to refine that a bit. Okay. Got a little time to do that. Actually the statute actually doesn't define what an operator much proved to about the presumption. I mean the statute does say what the secretary must prove but it doesn't say what the operator must prove. And I think as we discussed in our brief what the operator must prove is exactly what the secretary has to prove in this case. And that's that's basically okay. Mr. Mattingley. The operator can prove something less in the secretary. That's what the Supreme Court told us in us reading that's what we have to apply judge Davis reply brief pages 21 in 22. We cited futility cases some of them are from black lung cases from the six. No from the four circuit. So. Well the first versus consolidation cool company. The question. What do you think about the suggestion judge Davis makes that if we're going to read usery to. And I've got an easy way out of that. The regulation is written doesn't apply to this case because subsection you get that regulation. Says it only applies to claims filed before January one nineteen eighty two. The agency still hasn't changed it. So while the agency may have to remodel that regulation. For judges to apply it. At this point everyone's just applying the statute
. That's what the Supreme Court told us in us reading that's what we have to apply judge Davis reply brief pages 21 in 22. We cited futility cases some of them are from black lung cases from the six. No from the four circuit. So. Well the first versus consolidation cool company. The question. What do you think about the suggestion judge Davis makes that if we're going to read usery to. And I've got an easy way out of that. The regulation is written doesn't apply to this case because subsection you get that regulation. Says it only applies to claims filed before January one nineteen eighty two. The agency still hasn't changed it. So while the agency may have to remodel that regulation. For judges to apply it. At this point everyone's just applying the statute. So I don't think we have to be concerned with what seven eighteen three oh five says at all. Because it by definition does not apply to this case because it was filed after January one nineteen eighty two. And that's why we focused on the on the challenge to the statute as opposed to challenging the regulation. The only case I don't page twenty two of your brief reply brief is current from nineteen ninety nine. For the proposition that you apply the laws that exist now. The futility cases are on page twenty one and there's six circuit cases. Okay I may have missed read that I apologize. The the rule out standard is just too tough with the window that was loved open by the the user. The decision by the fact that the statute does not limit operators. So this case really needs to go back for the LJ to apply that standard. The LJ may get to the same result. But we don't know that until the agency fact finder has a chance to grapple with the evidence under that standard standard. Thank you. All right thank you Mr
. Manning Lee. We'll come down and read council and proceed on to our second case