PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LANE HOLLOW COAL COMPANY; OLD
REPUBLIC INSURANCE COMPANY,
Petitioners,

v.

DIRECTOR, OFFICE OF WORKERS'
                                                                   No. 96-2819
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
PAULINE LOCKHART, Widow of
Woodrow Lockhart,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(94-3953-BLA)

Argued: June 6, 1997

Decided: March 3, 1998

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge,
and MICHAEL, Senior United States District Judge
for the Western District of Virginia,
sitting by designation.

_________________________________________________________________

Affirmed in part and vacated in part by published opinion. Judge
Michael wrote the opinion, in which Chief Judge Wilkinson and
Senior Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Mark Elliott Solomons, ARTER & HADDEN, Washing-
ton, D.C., for Petitioners. Lawrence Lee Moise, III, VINYARD &
MOISE, P.C., Abingdon, Virginia, for Respondent Lockhart;
J. Matthew McCracken, Office of the Solicitor, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondent
Director. ON BRIEF: Laura Metcoff Klaus, ARTER & HADDEN,
Washington, D.C., for Petitioners. J. Davitt McAteer, Acting Solicitor
of Labor, Donald S. Shire, Associate Solicitor for Black Lung Bene-
fits, Christian P. Barber, Counsel for Appellate Litigation, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondent Director.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

Lane Hollow Coal Company and its insurer petition for review of
an order of the Department of Labor's Benefits Review Board (BRB)
in a case arising under the Black Lung Benefits Act (the Act).1 This
order affirmed the decision of an administrative law judge (ALJ), who
had awarded black lung and survivor's benefits to Pauline Lockhart,
the widow of former coal miner Woodrow Lockhart, and had directed
that liability for these benefits should rest upon Lane Hollow as the
"responsible operator."2 In this appeal Lane Hollow challenges both
of these determinations. While we agree with the BRB that substantial
evidence supports the award of benefits, we believe that the extraordi-
nary delay in notifying Lane Hollow of its potential liability deprived
it of a meaningful opportunity to contest that liability. Accordingly,
we affirm the award of benefits but vacate the designation of Lane
Hollow as responsible operator.

I.

Woodrow Lockhart was born in 1917. He worked in the nation's
_________________________________________________________________
1 30 U.S.C. §§ 901-945.
2 Subject to qualifications not relevant here, the "responsible operator"
is "the operator or other employer with which the miner has had the most
recent periods of cumulative employment of not less than 1 year[.]" 20
C.F.R. § 725.493(a)(1).

                    2
coal mines for over twenty years. His last long-term employer, from
1972 to 1975, was petitioner Lane Hollow Coal Company.3

On June 10, 1975, Lockhart filed a claim for benefits under the
Act. He listed several of his many former employers on a Department
of Labor form submitted with his claim. The very first listed was
Lane Hollow, along with a notation that he had worked there for
about three years. The Department obtained Social Security records
verifying this and a great deal of earlier coal mine employment. On
November 18, 1976, a claims examiner denied benefits.

In 1977 Congress amended the Act to loosen eligibility criteria and
directed that claims denied before or pending on March 1, 1978,
could be reconsidered under the new standards if the claimant so
elected. 30 U.S.C. § 945(a). Lockhart's claim was reconsidered, but
it was denied on April 28, 1980, and (apparently after the submission
of more evidence by Lockhart) denied yet again on June 24, 1981.

To this point, six years after the claim was filed, the Department
of Labor had not attempted to notify a responsible operator. This first
delay was no accident. Under its own regulations the Department may
forego notifying the responsible operator in a Part 727 case4 until and
unless an initial finding of eligibility is made by a deputy commis-
sioner, 20 C.F.R. § 725.412, or the claim is initially denied and the
claimant requests a formal hearing. 20 C.F.R. § 725.410(d).

Whatever the wisdom or legality5 of these regulations or the six-
_________________________________________________________________
3 Lane Hollow is defunct and its owner deceased. The Act requires a
coal operator to obtain insurance against liability for benefits or to qual-
ify to self-insure. 30 U.S.C. § 933. Like most small companies, Lane
Hollow purchased insurance, and petitioner Old Republic Insurance
Company is the carrier.
4 20 C.F.R. §§ 727.1-727.405, commonly referred to as the "interim
regulations," were promulgated pursuant to the Black Lung Benefits
Reform Act of 1977. In general, these regulations apply to reconsidera-
tions of denied or pending claims under 30 U.S.C.§ 945(a) and to new
claims filed between March 1, 1978, and March 31, 1980. See 20 C.F.R.
§§ 718.1(b), 718.2, and 727.101-.200.
5 The Fifth and Sixth Circuits have upheld the delayed notice against
due process challenges, reasoning primarily that the approval rate of

                    3
year delay they engendered here, everything changed on July 15,
1981: Lockhart made a timely request for a hearing. Notwithstanding
§ 725.410(d), no responsible operator was named when the claim was
transferred to the Office of Administrative Law Judges.

Five years passed. On August 12, 1986, the Department moved to
remand the case so that a responsible operator could be named; three
potential operators were named in this motion, including Lane Hol-
low. The ALJ granted the motion on October 3, 1986.

Five more years passed. On April 26, 1991, three potential respon-
sible operators were notified, but not Lane Hollow. By happenstance,
these operators were insured by petitioner Old Republic, so, as of
April 26, 1991, Old Republic had both notice of the claim and the
same incentive to defend it as it would have had on behalf of Lane
Hollow.

Defense would prove difficult, however. Lockhart had been unable
to outlive his claim -- he died of pneumonia December 12, 1989 --
and Old Republic would be left to build a medical opinion case from
a hard record that could no longer be augmented.

One last snafu remained. The case had returned to the ALJ after the
erroneous responsible operator designation. On March 3, 1992, the
Department filed a second motion to remand so that Lane Hollow
could be named. Lockhart's widow objected to this further delay, but
the motion was granted on March 16, 1992. Lane Hollow was finally
notified of the claim on April 6, 1992, seventeen years after notice
could have been given and eleven years after the regulations com-
mand that it be given. Moreover, the Department reversed its many
previous denials and found that Lockhart had been eligible for bene-
fits beginning in October 1981. Lane Hollow contested this finding,
and on August 12, 1993, the case was referred yet again to the ALJ.
_________________________________________________________________

claims at the initial stage was so low that identifying and notifying opera-
tors sooner would not have been worthwhile. Peabody Coal Co. v.
Holskey, 888 F.2d 440 (6th Cir. 1989); U.S. Pipe & Foundry Co. v.
Webb, 595 F.2d 264 (5th Cir. 1979).

                    4
A hearing was held before the ALJ on February 2, 1994. The fol-
lowing August the ALJ issued a decision and order awarding benefits.
He held that the weight of the x-ray evidence invoked the interim pre-
sumption of total disability due to pneumoconiosis as of October 1981
and that Lane Hollow had failed to rebut it. The BRB affirmed on
July 26, 1995, and Lane Hollow has petitioned for review.

II.

A.

Lane Hollow first argues that the ALJ violated the Administrative
Procedure Act (APA) by failing to adequately explain the reasons for
his conclusions. The APA requires an ALJ's opinion to contain his
"findings and conclusions, and the reasons or bases therefor, on all
material issues of fact, law or discretion presented on the record." 5
U.S.C. § 557(c)(3)(A). We must affirm the award of benefits if it is
in accordance with law and is supported by substantial evidence.
Wilson v. Benefits Review Board, 748 F.2d 198, 199-200 (4th Cir.
1984).

B.

Because Lockhart's claim was filed before the effective date of the
permanent regulations at 20 C.F.R. Part 718, and he worked for over
ten years in the mines, he was eligible for the interim presumption of
entitlement under the criteria of 20 C.F.R. § 727.203(a). As the "pro-
ponent of [the] rule or order," the claimant has the burden of proving
entitlement to the interim presumption. 5 U.S.C.§ 556(d); Director,
OWCP v. Greenwich Collieries, 512 U.S. 267 (1994). Similarly, once
the presumption is invoked, the proponent of any rebuttal bears the
burden.

The interim presumption is invoked if "[a] chest roentgenogram
(X-ray) . . . establishes the existence of pneumoconiosis[.]"
§ 727.203(a)(1). Notwithstanding this provision's reference to a sin-
gular x-ray, it in fact requires the ALJ to weigh all available x-ray evi-
dence to determine whether it preponderates in favor of a finding of
pneumoconiosis. Mullins Coal Co. v. Director, OWCP, 484 U.S. 135
(1987).

                     5
Lockhart had single x-rays taken in 1974, 1975, 1977, 1980, 1981,
and 1985, and three during the last thirty days of his life. These last
three were of such poor quality as to be unreadable; hence, they are
evidence of nothing and were disregarded by the ALJ.

There were nine readings of the 1974-1980 x-rays. Without elabo-
ration on the point, the ALJ held that the weight of this evidence was
against the existence of pneumoconiosis. The 1981 and 1985 x-rays
were another story. All six readings in the record were positive. Thus,
the ALJ found that the interim presumption was invoked as of the
date of the 1981 x-ray.

The basic purpose of the APA's duty of explanation is to help the
ALJ get it right -- the exercise of writing is a great catalyst to rational
thought -- but its secondary purpose is to allow us to discharge our
own duty to review the decision. See v. Washington Metropolitan
Area Transit Authority, 36 F.3d 375, 384 (4th Cir. 1994). If we under-
stand what the ALJ did and why he did it, we, and the APA, are satis-
fied. An adequate explanation can be a succinct one; the APA neither
burdens ALJs with a duty of long-windedness nor requires them to
assume that we cannot grasp the obvious connotations of everyday
language. Brevity can foster clarity.

Lane Hollow asserts that the ALJ did not explain how he weighed
the x-ray evidence. The faulty premise of Lane Hollow's argument is
that the ALJ credited the 1981-1985 x-ray evidence over the earlier
readings. He did not. The weight of the 1974-1980 x-ray evidence
was negative, and the ALJ so held: no benefits were awarded for this
period. All of the 1981-1985 x-ray evidence was positive, and the ALJ
so held, awarding benefits as of the earliest of the films. Because
pneumoconiosis is progressive and irreversible, these holdings pres-
ented no chronological anomaly requiring further inquiry.6 In sum, the
_________________________________________________________________
6 The relative sequence of medical tests can fully explain why credible
results may differ or reveal that some of the results are not credible. In
the latter case, the ALJ must resort to something other than chronology.
We discussed this principle in Adkins v. Director, OWCP, 958 F.2d 49,
51-52 (4th Cir. 1992):

          In a nutshell, the ["later is better"] theory is:
          (1) pneumoconiosis is a progressive disease; (2) therefore,

                     6
ALJ's reasoning is obvious, his brevity in no manner hampers our
review, and his finding that the x-ray evidence established the exis-
tence of pneumoconiosis as of October 1981 is supported by substan-
tial evidence.

C.

The interim presumption is rebuttable in any of four ways,
§ 727(b)(1)-(4), but Lane Hollow's options here were more limited.
Because the existence of pneumoconiosis had been proved by a pre-
ponderance of the evidence under § (a)(1) at the presumption invoca-
tion stage, § (b)(4), which requires the opposite proof, could not
apply. See Mullins Coal, 484 U.S. at 149-150 & nn. 24, 26.7 Subsec-
tions (b)(1) and (b)(2) were unavailable because there was no evi-
_________________________________________________________________
           claimants cannot get better; (3) therefore, a later test or exam is
           a more reliable indicator of the miner's condition than an earlier
           one.

          This logic only holds where the evidence is consistent with
          premises (1) and (2) -- i.e., the evidence, on its face, shows that
          the miner's condition has worsened. In that situation, it is possi-
          ble to reconcile the pieces of proof. All may be reliable; they do
          not necessarily conflict, though they reach different conclusions.
          All other considerations aside, the later evidence is more likely
          to show the miner's current condition.

            On the other hand, if the evidence, taken at face value, shows
            that the miner has improved, the "reasoning" cannot apply. It is
            impossible to reconcile the evidence. Either the earlier or later
            result must be wrong, and it is just as likely that the later evi-
            dence is faulty as the earlier. The reliability of irreconcilable
            items of evidence must therefore be evaluated without reference
            to their chronological relationship.
7 We recognize that there is some debate over whether the Supreme
Court's observations in Mullins Coal were of law or of practical fact and,
if the latter, whether there may be some extraordinarily unusual case in
which (b)(4) rebuttal might defeat the (a)(1) presumption. To this point,
the debate has been academic, because no such case has presented itself.
See Curry v. Beatrice Pocahontas Coal Co., 67 F.3d 517, 522-524 & n.9
(4th Cir. 1995). The debate may remain academic forever. There can be
no new claims involving the interim presumption, and the pool of pend-
ing claims will inevitably, if ever-so-slowly, dwindle away.

                     7
dence that Lockhart worked after the date the presumption was
invoked or was able from a whole-man standpoint 8 to do so.

Subsection (b)(3) was the only choice open to Lane Hollow. Rebut-
ting the presumption under this provision is not easy. The operator
must show that "the total disability or death of the miner did not arise
in whole or in part out of coal mine employment." 20 C.F.R.
§ 727.203(b)(3) (emphasis added). Because of the "in part" language,
"the employer must rule out the causal connection between the
miner's total disability and his coal mine employment[.]" Bethlehem
Mines Corp. v. Massey, 736 F.2d 120, 123 (4th Cir. 1984). This hur-
dle is a high one, and deliberately so.

          The reality of coal mine employment is such that many
          physical and environmental factors may converge to pro-
          duce a totally disabling respiratory or pulmonary impair-
          ment. The Secretary's rebuttal regulation [i.e., (b)(3)]
          acknowledges this reality and, consistent with the letter and
          spirit of the Black Lung Act and traditional workers' com-
          pensation principles, places the burden on the employer to
          disprove the causal relationship between coal mine employ-
          ment and total disability once the claimant establishes the
          existence of a qualifying medical condition. In cases in
          which the combined effects of several diseases disable the
          miner, the employer obviously cannot meet its burden of
          proof by focusing solely on the disabling potential of the
          miner's pneumoconiosis. Its proof offering under section
          [(b)(3)] in such cases must establish that the miner's pri-
          mary condition, whether it be emphysema or some other
          pulmonary disease, was not aggravated to the point of total
          disability by prolonged exposure to coal dust.

Id. at 124.

Disputing the clinical accuracy of the law is not rebuttal. Thorn v.
Itmann Coal Co., 3 F.3d 713, 719 (4th Cir. 1993). For example, a
_________________________________________________________________
8 See Sykes v. Director, OWCP, 812 F.2d 890, 893-894 (4th Cir. 1987)
(subsection (b)(2) contains no causation element; rebuttal thereunder is
thus unavailable if the miner is disabled for any reason).

                    8
physician may opine that a given miner has no pulmonary impairment
attributable to coal mine employment because simple pneumoconiosis
does not generally cause any pulmonary impairment. The interim reg-
ulations presume precisely the opposite, and the presumption must be
rebutted with proof rather than disagreement.

What constitutes such proof? Usually it takes one of two forms: a
causal connection can be "ruled out" if positive evidence demon-
strates that the miner suffers from no respiratory or pulmonary
impairment of any kind, Grigg v. Director, OWCP , 28 F.3d 416, 419
(4th Cir. 1994), or if such evidence explains all of any impairment
present and attributes it solely to sources other than coal mine
employment. Cf. Dehue Coal Co. v. Ballard, 65 F.3d 1189 (4th Cir.
1995) (pneumonectomy occasioned by smoking-induced lung cancer
was self-sufficient cause of total disability (applying permanent regu-
lations)).

Here, the three physicians relied on by Lane Hollow did not exam-
ine (and, of course, could not have examined) Mr. Lockhart.9 As a
consequence, they were greatly hampered in stating an opinion strong
enough to satisfy Massey without resorting to the sort of philosophical
disagreement with the interim presumption forbidden as rebuttal by
Thorn.

These physicians reviewed parts of the medical record, but they
missed, most notably, the unanimously positive x-ray readings from
1981 and 1985. Dr. Gregory Fino concluded that (i) "[t]here is no
evidence of coal workers' pneumoconiosis"; (ii) "there is no objec-
tive evidence of any respiratory impairment"; and (iii) "[t]herefore,
there is no respiratory disability." Dr. William Anderson found that
"[t]here is nothing in this record to indicate that he had any impair-
ment which had arisen from his coal mine employment and his death
_________________________________________________________________
9 The claimant did have favorable medical opinion evidence from an
examining physician. Dr. Emory Robinette examined Mr. Lockhart on
September 13, 1985. He diagnosed simple pneumoconiosis with perfu-
sion 2/1 and size q opacities. He noted "obvious respiratory disease" due
to pneumoconiosis; while the exact degree of impairment was difficult
for him to assess, Dr. Robinette opined that it was sufficient to render
Lockhart "unemployable."

                    9
was not in any way related to coal workers pneumoconiosis. Even if
we assume he had simple coal workers pneumoconiosis there would
be no relationship." Dr. Emery Lane concluded,

          There is a paucity of data concerning pulmonary function.
          Arterial blood gases reveal only mild hypoxemia during a
          hospitalization but he apparently had congestive heart fail-
          ure and pneumonia. Thus, he probably did not have very
          significant pulmonary impairment underlying these prob-
          lems. There is no evidence of an impairment arising from
          coal mine employment (inhalation of coal mine dust).

These opinions fall well short of Massey's high standard. As Thorn
and Grigg emphasize, there is a critical difference between evidence
of no impairment, which can, if credited, rebut the interim presump-
tion, and no evidence of impairment, which cannot. At their very
strongest, the opinions of Lane Hollow's physicians establish only
that those physicians would not presume what the (a)(1) interim pre-
sumption presumes, i.e., that a person suffering from simple pneumo-
coniosis who has worked for ten or more years in the mines
(i) acquired the disease there and (ii) is totally disabled by it.10

The ALJ was quite correct, then, when he rejected Lane Hollow's
proffered rebuttal on the ground that "lack of evidence in the record
cannot carry Employer's burden of proof." The decision of the ALJ
was rational, adequately explained, and supported by substantial evi-
dence. Accordingly, the award of benefits is affirmed.

III.

Lane Hollow argues that the extraordinary delay in notifying it of
its potential liability on Lockhart's claim deprived it of a meaningful
_________________________________________________________________
10 In addition, only one of the physicians for Lane Hollow, Dr. Ander-
son, stated any opinion that assumed the presence of pneumoconiosis,
and that opinion seems to address only the relationship between the dis-
ease and Mr. Lockhart's death. Where the interim presumption is
invoked under (a)(1), medical opinions that assume that pneumoconiosis
is not present cannot clear Massey's high hurdle. Grigg, 28 F.3d at
419-420.

                    10
opportunity to defend itself in violation of the Due Process Clause of
the Fifth Amendment. If Lane Hollow is correct, Mrs. Lockhart's
award of benefits will be unaffected; instead, liability for those bene-
fits will be borne by the Black Lung Disability Trust Fund.11 The
Director concedes, as he must, that the claim was handled ineffi-
ciently. Nevertheless, the Director maintains that Lane Hollow neither
raised this issue below nor suffered any unfair prejudice from the
delay.

A.

At the outset, we must address the Director's assertion that Lane
Hollow waived its due process argument by not adequately presenting
it below.

"[W]aiver is a nonjurisdictional doctrine that calls for flexible
application." Toler v. Eastern Associated Coal Co., 43 F.3d 109, 113
(4th Cir. 1995); see also Rana v. United States , 812 F.2d 887, 889 n.2
(4th Cir. 1987). While we of course look to the manner in which the
issue was or might have been raised below, our primary inquiry is
whether and how our review of the issue might do violence to the
agency's role. We should consider whether the issue is one upon
which the agency has special expertise, Rana, 812 F.2d at 890, and
whether it is just under the circumstances for us to dispense with
exhaustion of administrative remedies, bearing in mind that we should
never do so lightly.

          Simple fairness to those who are engaged in the tasks of
          administration, and to litigants, requires as a general rule
          that courts should not topple over administrative decisions
          unless the administrative body not only has erred but has
          erred against objection made at the time appropriate under
          its practice.

United States v. L. A. Tucker Truck Lines, Inc. , 344 U.S. 33, 37
(1952).
_________________________________________________________________
11 The Trust Fund must pay benefits when "there is no operator who is
liable" for them. 26 U.S.C. § 2501(d)(1)(B).

                    11
Here, it is easy for us to conclude that Lane Hollow did not waive
its due process argument. Though it certainly did not press the matter
as ardently and cogently as it has in this court, Lane Hollow's due
process challenge drew the attention of the BRB and was rejected on
the merits.12 On similar facts, we concluded in Thorn that, "with the
BRB's full consideration of the issue, the policy reasons behind
administrative waiver . . . are simply not present." 3 F.3d at 717.

B.

"Due process" is a versatile term designed for the daunting task of
assuring justice to anyone from whom the state, or someone using the
machinery of the state, wishes to take life, liberty, or property.13 We
cannot imagine a better or more succinct choice of words than the one
the Framers made. "Justice" and "fundamental fairness" are often
urged to us as rough synonyms, but they actually describe just the
end; "due process" is the means.

What do these two simple words command? First, there must be a
process of some kind; a just result is not enough. Carey v. Piphus,
435 U.S. 247, 266 (1978) ("[T]he right to procedural due process is
`absolute' in the sense that it does not depend on the merits of a
claimant's substantive assertions[.]"); Coe v. Armour Fertilizer
Works, 237 U.S. 413, 424 (1915). The work of mobs and vigilantes
is swift and the result might sometimes be deserved. But the risk of
error (as well as the insult to orderly society) inherent in such self-
help was more than the Framers would tolerate. We can prevent erro-
neous deprivations from some only by providing a process to all.
_________________________________________________________________
12 The BRB stated:

          To the extent that employer is arguing that the delay in pro-
          cessing the claim and in notifying it of its potential liability con-
          stitutes a violation of its due process rights, we hold that any
          prejudice it may have suffered from the delay does not rise to the
          level of constitutional magnitude.

Lockhart v. Lane Hollow Coal Co., BRB No. 94-3953 BLA, at 3 n.2
(Benefits Review Board July 26, 1995) (quotations omitted).
13 The requirement of due process is fully applicable to adjudicative
proceedings conducted by administrative agencies. Richardson v.
Perales, 402 U.S. 389, 401 (1971).

                    12
Second, the process must be at least what is "due," i.e., it must be
adequate to the task at hand. The past half-century of jurisprudence,
combined with a commendable response to it from all levels and
types of government, has made rare the case where there is not an
adequate procedure on the books to handle a given deprivation. Most
modern cases are like this one, involving a real or alleged breakdown
of a prescribed process that, if followed reasonably well, would pro-
vide far more than the constitutional minimum.

No "process," however thorough, can provide what is "due" with-
out notice to those who stand to lose out thereby. Tazco v. Director,
OWCP, 895 F.2d 949, 950 (4th Cir. 1990). "[The] right to be heard
has little reality or worth unless one is informed that the matter is
pending and can choose for himself whether to appear or default,
acquiesce or contest." Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950). It is not always sufficient that the notice
be received at some point before the deprivation; instead, the notice
"must afford a reasonable time for those interested to make their
appearance." Id. (emphasis added). A"reasonable time" is "a time
when the deprivation can still be prevented." Fuentes v. Shevin, 407
U.S. 67, 81 (1972).14 According to Lane Hollow, the notice it received
did not afford a reasonable time for it to appear and interpose a
defense.

The Director points out that several cases have upheld the liability
of a responsible operator that was not notified of the claim until after
the miner's death. E.g., Director, OWCP v. Oglebay Norton Co., 877
F.2d 1300 (6th Cir. 1989). We do not quarrel with that narrow propo-
sition. The Due Process Clause does not require the government to
_________________________________________________________________
14 See, e.g., Armstrong v. Manzo, 380 U.S. 545 (1965) (natural father's
ability to move to set aside adoption decree of which he had no prior
notice, and to receive a full hearing on the motion, was inadequate to sat-
isfy due process); Roller v. Holly, 176 U.S. 398 (1900) (1890 notice to
Virginia resident, directing him to appear and defend a suit in Texas five
days later, was insufficient); In re American Medical Systems, Inc., 75
F.3d 1069, 1086 (6th Cir. 1996) (where hearing on class certification had
already taken place, new defendant named in amended complaint was
denied due process by class certification issued three days after service
of the amended complaint).

                    13
insure the lives of black lung claimants. The problem here is not so
much that Lockhart died before notice to Lane Hollow, but rather that
he died many years after such notice could and should have been
given. The government's grossly inefficient handling of the matter --
and not the random timing of death -- denied Lane Hollow the oppor-
tunity to examine Lockhart.

Our analysis of the merits of Lockhart's claim in part II above
shows how the delay precluded Lane Hollow from attempting to
mount a defense. The record was simply not developed in a manner
to either demonstrate or disprove respiratory impairment or to define
an etiology of any impairment. Lockhart had the luxury, if it could be
called that, of proving his whole claim with positive x-rays.15

Of course, it is possible that, had they been able to examine Lock-
hart, Lane Hollow's physicians would nonetheless have been unable
to "rule out" a connection between pneumoconiosis and Lockhart's
disability. It may even be likely that they could not; we cannot know.
Thus, it may be that Lane Hollow suffered no actual harm from the
much-belated notice. Can this possibility excuse the delay? We think
not; to excuse the delay would, in a Catch-22 fashion, rely upon Lane
Hollow's inability to garner evidence in defense to justify denying it
the opportunity to do so.

Moreover, speculation about the would-have-been and could-have-
been misconstrues the focus of our inquiry. In this core due process
context, we require a showing that the notice was received too late to
provide a fair opportunity to mount a meaningful defense; we do not
require a showing of "actual prejudice" in the sense that there is a rea-
sonable likelihood that the result of this claim would have been differ-
ent absent the violation. The Due Process Clause does not create a
right to win litigation; it creates a right not to lose without a fair
opportunity to defend oneself.
_________________________________________________________________

15 Dr. Robinette's report also supported the claim, but, because Lock-
hart was unable to complete pulmonary function tests, Dr. Robinette
relied heavily on his own examination and assessment of the miner to
conclude that he had impairment attributable to pneumoconiosis. Lane
Hollow's physicians had no such opportunity.

                    14
To be sure, there are "due process" cases in which we require a
showing that the error complained of actually prejudiced the result on
the merits, but these cases are of a much different ilk.

"Due process" is a big tent. It covers not merely the procedural fun-
damentals at issue here but also certain substantive personal liberties16
and basic rules of justice. In the criminal law context, these two sim-
ple words are the repository of an array of rules requiring fair play
from the government. If a prosecutor makes an inflammatory closing
argument, suppresses exculpatory evidence, or delays indictment to
gain a tactical advantage, "due process" protects the accused. See
Donnelly v. DeChristoforo, 416 U.S. 637 (1974); Brady v. Maryland,
373 U.S. 83 (1963); United States v. Gouveia, 467 U.S. 180 (1984).
However, in their essential character, these fair-play rules do not
resemble the core components of due process, i.e., notice and the right
to a hearing appropriate to the proposed deprivation at a meaningful
time and place; instead, they are simply rules (albeit fundamental
ones) of criminal law and practice. While transgressions of these rules
implicate due process, they do not violate it unless they render the
trial unfair. Donnelly, 416 U.S. at 643. Consequently, we can and do
assess the impact of such errors upon the fairness of the trial and its
reliability as an accurate indicator of guilt. See, e.g., Jones v.
Angelone, 94 F.3d 900, 904-911 (4th Cir. 1996). If the defendant has
had a fair day in court and heard a reliable verdict, he has received
all that due process guarantees him.

Core violations of due process are of another order. If there has
been no fair day in court, the reliability of the result is irrelevant,
because a fair day in court is how we assure the reliability of results.
Inasmuch as Lane Hollow did not receive notice of the claim "when
the deprivation [could] still be prevented," Fuentes, 407 U.S. at 81,
we may not speculate that it could not have been prevented.

          To one who protests against the taking of his property with-
          out due process of law, it is no answer to say that in his par-
          ticular case due process of law would have led to the same
          result because he had no adequate defense upon the merits.
_________________________________________________________________
16 E.g., Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut,
381 U.S. 479 (1965).

                     15
Coe, 237 U.S. at 424.

The inexcusable delay in notifying Lane Hollow deprived it of the
opportunity to mount a meaningful defense to the proposed depriva-
tion of its property; consequently, it was denied due process of law.

Because Lane Hollow cannot lawfully be deemed the"responsible
operator," there is not one. Accordingly, payment of Mrs. Lockhart's
benefits must be made from the Black Lung Disability Trust Fund.
The award of benefits is affirmed, and the designation of Lane Hol-
low as responsible operator is vacated.

AFFIRMED IN PART AND VACATED IN PART

                    16
