UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CEDAR COAL COMPANY,
Petitioner,

v.

SIDNEY L. BROWN; DIRECTOR, OFFICE
                                                                      No. 94-1817
OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(90-2823-BLA, 93-0866-BLA)

Argued: June 5, 1995

Decided: September 10, 1996

Before WILKINSON, Chief Judge, and WIDENER and
MICHAEL, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Sean Patrick Harter, ROBINSON & MCELWEE,
Charleston, West Virginia, for Petitioner. Jeffrey Steven Goldberg,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondent Director; Belinda S. Morton, Fayetteville, West Vir-
ginia, for Respondent Brown. ON BRIEF: Henry C. Bowen, ROB-
INSON & MCELWEE, Charleston, West Virginia, for Petitioner.
Thomas S. Williamson, Jr., Solicitor of Labor, Donald S. Shire, Asso-
ciate Solicitor, Patricia M. Nece, Counsel for Appellate Litigation,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondent Director.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Petitioner Cedar Coal Company petitions for review of an order of
the Benefits Review Board affirming an administrative law judge's
award of benefits to claimant Sidney Brown under the Black Lung
Benefits Act, 30 U.S.C. §§ 901-945. In this case, Cedar Coal argues
only that the administrative law judge erred in finding pneumoconio-
sis under 20 C.F.R. § 718.202(a)(1), and that the administrative law
judge erroneously applied the true doubt rule to find in favor of
Brown.

The Benefits Review Board, on April 28, 1994, affirmed the
administrative law judge's application of the true doubt rule to the
facts of this case without the benefit of the Supreme Court's decision
in Director, Office of Workers' Compensation Programs v. Green-
wich Collieries, 62 U.S.L.W. 4543 (U.S. June 20, 1994), holding that
"the true doubt rule violates § 7(c)," 62 U.S.L.W. at 4547, of the
Administrative Procedure Act, 5 U.S.C. § 556(d) ("[e]xcept as other-
wise provided by statute, the proponent of a rule or order has the bur-
den of proof."). Accordingly, we must vacate the award and remand
the case to the Board with instructions to remand the action to the
administrative law judge for consideration of Brown's claim under
the standard of proof articulated by the Supreme Court in Greenwich
Collieries.

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We note that, notwithstanding the urgings of Cedar Coal and the
Director, we express no opinion on the validity or sufficiency of the
evidence in this case; we hold only that the case was decided under
what is now an erroneous legal standard. On remand, the administra-
tive law judge should consider and weigh all the evidence, including
any additional evidence that either party may wish to submit on
remand, to determine whether or not Brown is entitled to benefits.

VACATED AND REMANDED WITH INSTRUCTIONS

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