UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HARMAN MINING COMPANY,
Petitioner,

v.

HAROLD LAYNE; DIRECTOR, OFFICE OF
                                                                   No. 97-1385
WORKERS' COMPENSATION PROGRAMS,
UNITED' STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(92-378-BLA)

Argued: April 7, 1998

Decided: August 27, 1998

Before WILLIAMS, Circuit Judge, PHILLIPS, Senior Circuit Judge,
and OSTEEN, United States District Judge for the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Senior Judge Phillips wrote the
opinion, in which Judge Williams and Judge Osteen joined.

_________________________________________________________________

COUNSEL

ARGUED: Ronald Eugene Gilbertson, KILCULLEN, WILSON &
KILCULLEN, CHARTERED, Washington, D.C., for Petitioner.
Joseph E. Wolfe, WOLFE & FARMER, ATTORNEYS, Norton, Vir-
ginia, for Respondent Layne; Patricia May Nece, Counsel for Appel-
late Litigation, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondent Director. ON BRIEF: Bobby
Steve Belcher, Jr., WOLFE & FARMER, ATTORNEYS, Norton,
Virginia, for Respondent Layne. J. Davitt McAteer, Acting Solicitor
of Labor, Donald S. Shire, Associate Solicitor, Sarah M. Hurley,
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Unpublished opinions are not binding precedent in this circuit.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

PHILLIPS, Senior Circuit Judge:

Harman Mining Company ("Harman"), petitions for review of a
decision by the United States Department of Labor Benefits Review
Board ("BRB"). Harman contends that the BRB erred in affirming the
decision of an Administrative Law Judge ("ALJ") that awarded bene-
fits to Harold Layne under the Black Lung Benefits Act ("the Act"),
30 U.S.C. § 901 et seq., and declined to transfer liability for those
benefits to the Black Lung Disability Trust Fund ("the Trust Fund").
We affirm.

I

As originally enacted, Title IV of the Federal Coal Mine Health
and Safety Act of 1969 ("the 1969 Act") established two programs--
Part B and Part C--under which coal miners disabled by pneumoco-
niosis could receive benefits. See Federal Coal Mine Health and
Safety Act of 1969, Pub. L. No. 91-173, 83 Stat. 792-98 (1969) (codi-
fied as amended at 30 U.S.C. § 901 et seq. ). Part B was set up to be
administered by the Social Security Administration ("SSA") and to
cover all claims filed on or before December 31, 1972. See id. at 83
Stat. 792-95. Part B benefits were to be paid with federal funds. See

                    2
id. at 83 Stat 794. Part C was set up to be administered by the Depart-
ment of Labor ("DOL") and to cover claims filed after December 31,
1972. See id. at 83 Stat. 795-98. Part C benefits were to be paid pursu-
ant to state workers' compensation statutes approved by the DOL as
providing adequate coverage for pneumoconiosis; if the state pro-
grams were not approved, benefits were to be paid by the responsible
mine operators or their successors; if such operators could not be
found, benefits were to be paid by the federal government. See id.
DOL has not approved any state workers' compensation statutes as
providing adequate coverage. See 20 C.F.R.§ 722.152.

In 1972, Congress amended the 1969 Act, renaming it the Black
Lung Benefits Act ("the Act"). See Black Lung Benefits Act of 1972,
Pub. L. No. 92-303, 86 Stat. 150 (1972). Among other things, the
1972 amendments extended the period for filing Part B claims to June
30, 1973 and made it easier for miners to prove entitlement to bene-
fits. See Helen Mining Co. v. Director, OWCP, 924 F.2d 1269, 1271
(3d Cir. 1991).

In 1978, Congress passed the Black Lung Benefits Reform Act
("the Reform Act"). See Black Lung Benefits Reform Act of 1977,
Pub. L. No. 95-239, 92 Stat. 95 (1978). The Reform Act further
relaxed the standards for benefit eligibility and permitted claims
denied before March 1, 1978 (the effective date of the Reform Act)
to be reexamined under the new standards. See Helen Mining, 924
F.2d at 1272. While review of pending or denied Part C claims was
made automatic, SSA had to notify Part B claimants of their right to
review and the claimants had to elect to have their claims reviewed
under the new Reform Act standards. See id. If granted on review,
Part B claims were converted to Part C claims for purposes of benefit
liability. See id.

Along with the Reform Act, Congress enacted the Black Lung
Benefits Revenue Act of 1977 ("the Revenue Act"). See Black Lung
Benefits Revenue Act of 1977, Pub. L. No. 95-227, 92 Stat. 11
(1978). The Revenue Act created the Trust Fund, to be funded by a
tax on coal sales. See id. The Trust Fund was to bear the administra-
tive costs of the black lung benefits program, cover the federal gov-
ernment's existing Part C liability (for benefits attributable to mine
operators who could not be found), and assume responsibility for pay-

                    3
ing benefits where a miner's last employment ended before January
1, 1970. See Helen Mining, 924 F.2d at 1272. Since operators
remained liable, however, for Part C claims made by miners whose
employment continued after 1969, and because of the conversion of
approved Part B claims into Part C claims, mine operators became lia-
ble for all benefits granted to post-1969 miners under the Reform
Act's liberalized standards. See id. As the number of claims granted
soared, mine operators found themselves saddled with massive, retro-
active, unanticipated liability for Part C claims, which their insurers
refused to cover. See id. (citing Lopatto, The Federal Black Lung Pro-
gram: A 1983 Primer, 85 W.Va.L.Rev. 677, 693-94 (1983)). In 1981,
Congress responded by again amending the Act. See Black Lung Ben-
efits Revenue Act of 1981, Pub. L. No. 97-119, 95 Stat. 1635 (1981).
The 1981 amendments included a transfer of liability provision pro-
viding that in cases where there was a claim denied before March 1,
1978 and the claim "is or has been approved in accordance with [the
Reform Act's liberalized standards]," the Trust Fund, not individual
coal mine operators, would be responsible for paying benefits. Id.
(codified at 30 U.S.C. § 932(c)(2), (j)(3)). Against this statutory
framework, we consider Layne's claim. On June 6, 1973, claiming he
was totally disabled by black lung disease, Layne filed a claim for
black lung benefits under Part B of the Act. On May 12, 1974, he
applied for benefits under Part C. In June 1975, SSA denied Layne's
Part B claim. (J.A. 54-57.) On July 23, 1976, DOL approved his Part
C claim. Harman requested a hearing and DOL instituted interim ben-
efit payments, pending final adjudication. On April 12, 1979, DOL
made an initial determination that Layne was entitled to benefits. (See
id. at 58.) Harman disputed the award and requested a formal hearing.
On December 13, 1983, a DOL ALJ held a formal hearing, (see id.
at 83), and on August 31, 1984, issued an opinion awarding benefits.
(See id. at 40.) The ALJ found that Layne was entitled under
20 C.F.R. § 727.203(a) to the interim presumption of total disability,
(see id. at 35),1 and that Harman had not rebutted the presumption
_________________________________________________________________
1 20 C.F.R. § 727.203(a) provides:

         Establishing interim presumption. A miner who engaged in
        coal mine employment for at least 10 years will be presumed to
        be totally disabled due to pneumoconiosis, or to have been
        totally disabled due to pneumoconiosis at the time of death, or

                  4
under 20 C.F.R. § 727.203(b)(2) ("(b)(2) rebuttal") or (b)(3) ("(b)(3)
rebuttal"). (See id. at 39-40.)2 Also, the ALJ refused to transfer liabil-
ity for the benefits to the Trust Fund. (See id. at 34.)
_________________________________________________________________
           death will be presumed to be due to pneumoconiosis, arising out
           of that employment, if one of the following medical require-
           ments is met:

           (1) A chest roentgenogram (X-ray), biopsy, or autopsy estab-
          lishes the existence of pneumoconiosis (see § 410.428 of this
          title);

           (2) Ventilatory studies establish the presence of a chronic res-
          piratory or pulmonary disease (which meets the requirements for
          duration in § 410.412(a)(2) of this title) as demonstrated by val-
          ues which are equal to or less than [certain values specified in
          this regulation];

           (3) Blood gas studies which demonstrate the presence of an
          impairment in the transfer of oxygen from the lung alveoli to the
          blood as indicated by values which are equal to or less than [cer-
          tain values specified in this regulation];

           (4) Other medical evidence, including the documented opinion
          of a physician exercising reasoned medical judgment, establishes
          the presence of a totally disabling respiratory or pulmonary
          impairment;

           (5) In the case of a deceased miner where no medical evidence
          is available, the affidavit of the survivor of such miner or other
          persons with knowledge of the miner's physical condition, dem-
          onstrates the presence of a totally disabling respiratory or pulmo-
          nary impairment.

20 C.F.R. § 727.203(a).

2 20 C.F.R. § 727.203(b) provides, in relevant part:

           Rebuttal of interim presumption. In adjudicating a claim under
          this subpart, all relevant medical evidence shall be considered.
          The presumption in paragraph (a) of this section shall be rebutted
          if:

          ...

           (2) In light of all relevant evidence it is established that the
          individual is able to do his usual coal mine work or comparable
          and gainful work (see § 410.412(a)(1) of this title); or

                    5
Harman appealed to the BRB, arguing, in part, that the ALJ erred
in finding that liability should not transfer and that the evidence was
insufficient to establish (b)(2) rebuttal. (See id. at 30.) On November
26, 1986, the BRB affirmed the ALJ's determination that liability
should not transfer but vacated and remanded for reconsideration on
the issue of (b)(2) rebuttal. (See id. at 29-31.)

On remand, the ALJ again found (b)(2) rebuttal not established.
(See id. at 27.) Harman appealed, arguing, in part, that the ALJ erred
in not further considering the evidence under the (b)(3) rebuttal stan-
dard and that the record should be reopened for new (b)(2) rebuttal
evidence. (See id. at 22.) On appeal, the BRB agreed that the case had
to be remanded for consideration of the evidence under the (b)(3)
standard but rejected Harman's contention regarding reopening the
record, noting that on remand, the decision to reopen was within the
ALJ's discretion. (See id. at 22-23.) When the case went back to the
ALJ on remand, Harman filed a motion requesting that the record be
reopened for development of further (b)(2) and (b)(3) rebuttal evidence.3
The ALJ refused to reopen the record and again awarded benefits.
(See id. at 17-18.) Harman appealed arguing that (1) liability must
_________________________________________________________________

           (3) The evidence establishes 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).

Section 410.412(a) provides, in relevant part:

           A miner shall be considered totally disabled due to pneumoco-
          niosis if:

          (1) His pneumoconiosis prevents him from engaging in gainful
          work in the immediate area of his residence requiring the skills
          and abilities comparable to those of any work in a mine or mines
          in which he previously engaged with some regularity and over
          a substantial period of time . . . .

20 C.F.R. § 410.412(a).

3 Although the motion to reopen is not part of the record on appeal, nei-
ther of the respondents challenge Harman's representation regarding its
filing.

                    6
transfer to the Trust Fund; (2) the ALJ erred in finding that it had not
established (b)(3) rebuttal; and (3) the ALJ abused his discretion in
refusing to reopen the record. (See id. at 8.) The BRB affirmed. (See
id. at 14.) When Harman moved for reconsideration, the BRB granted
its motion but denied the relief requested. (See id. at 4.) Harman then
petitioned for review by this court.

II

The BRB reviews the ALJ's findings to determine if they are sup-
ported by substantial evidence. See Doss v. Director, OWCP, 53 F.3d
654, 658 (4th Cir. 1995). We review the BRB's decision only for
errors of law and to verify that the BRB applied the proper standard
in reviewing the ALJ's factual determinations. See id.

Harman argues that the ALJ erred in concluding that liability does
not transfer to the Trust Fund. Alternatively, Harman argues that it is
entitled to a new administrative hearing to present additional evidence
rebutting the presumption of disability applied by the ALJ. Layne
joins Harman's argument that liability must transfer to the Trust Fund
but disagrees with its suggestion that a new hearing is warranted. The
Director, Office of Workers' Compensation Programs, DOL ("the
Director") opposes transfer but does not contest the ALJ's award of
benefits and represents that it will accept liability if we find that lia-
bility must transfer to the Trust Fund. (Director's Resp. at 38 n.18.)
The Director opposes Harman's contention that it is entitled to a new
trial.

A

Liability transfers to the Trust Fund for any claim for benefits
which "was the subject of a claim denied before March 1, 1978" and
"is or has been approved in accordance with the provisions of [30
U.S.C. § 945]." 30 U.S.C. § 932(c), (j)(3). 30 U.S.C. § 945 ("section
945") provides for the review, under the liberalized Reform Act stan-
dards, of claims pending on or denied before March 1, 1978. See 30
U.S.C. § 945. Section 945 further provides that SSA "shall promptly
notify each claimant" of his right to elect review. See id. § 945(a)(1).
The relevant DOL regulations provide that no claim filed with and
denied by the SSA is subject to the Act's transfer of liability provi-

                     7
sions unless the claimant requested review under section 945. See 20
C.F.R. § 725.496(d). The regulations specify that "[s]uch review must
have been requested by the filing of a valid election card or other
equivalent document with the [SSA] in accordance with [section
945(a)] and its implementing regulations at 20 C.F.R. 410.700-707."
Id. 20 C.F.R. § 410.704(d) in turn provides that if the SSA does not
receive a request for review "within 6 months from the date the notice
is mailed," the claimant will be considered to have waived his right
to review unless he can establish "good cause" for "not responding
within this time period." Id. § 410.704(d).

It is undisputed that Layne's Part B claim is a"claim denied before
March 1, 1978." 30 U.S.C. § 932(c), (j)(3). It is also undisputed that
while Layne's Part B claim was never reviewed under section 945, his
Part C claim was reviewed and "approved in accordance with the pro-
visions of [section 945]." Id. Relying on these facts, Harman argues
that when the procedural histories of the Part B and C claims merge,
the requirements for transfer are met.4

The regulations provide that

         [w]here more than one claim was filed with the[SSA]
         and/or the [DOL] prior to March 1, 1978 . . ., unless such
         claims were required to be merged by the agency's regula-
         tions, the procedural history of each such claim must be
         considered separately to determine whether the claim is sub-
         ject to the transfer of liability provisions.

20 C.F.R. § 725.496(c). According to Harman, the agency's regula-
_________________________________________________________________
4 The BRB rejected Harman's merger argument, relying on its decision
in Chadwick v. Island Creek Coal Co., 7 BLR 1-883 (1985), aff'd, 8
BLR 1-447 (1986) (en banc). (J.A. 30.) Under Chadwick, merger does
not result in an integration of the procedural histories of the merged
claims; rather, merger extinguishes the procedural history of the first
claim. Chadwick has been rejected by at least two circuits, see Old Ben
Coal Co. v. Luker, 826 F.2d 688, 695-98 (7th Cir. 1987); Helen Mining,
924 F.2d at 1274 n.7 (following Old Ben), and by all parties in this litiga-
tion. (Appellant's Br. at 30; Layne's Resp. at 22-23; Director's Resp. at
38.)

                    8
tions do require merger. Specifically, Harman points to 20 C.F.R.
§ 725.309(c). That regulation provides, in relevant part:

           A claimant who filed a claim for benefits under Part B . . .
          or Part C . . . before March 1, 1978, and whose previous
          claim(s) are pending or have been finally denied, who files
          an additional claim under this part, shall have the later claim
          merged with any earlier claim subject to review under part
          727 of this subchapter.

Id. § 727.309(c). 20 C.F.R. Part 725 sets forth the procedures and
standards for filing, processing, adjudicating, and paying Part C
claims. See id. § 725.2. Part 727 implements section 945. See id.
§ 727.1(d).

The Director challenges Harman's contention that 20 C.F.R.
§ 725.309(c) requires merger, arguing that"[b]y its very terms," the
regulation "provides for a merger of claims only when an additional
claim is filed with the DOL after March 1, 1978 -- the effective date
of the 1977 amendments." (Director's Resp. at 36 (emphasis in origi-
nal).) Here, the Director argues, both of Layne's claims were filed
before March 1, 1978.

The Director's reasonable interpretation of its regulations is enti-
tled to deference. See Chevron U.S.A. Inc. v. Natural Resource
Defense Council, Inc., 467 U.S. 837 (1984). Here, the Director's
interpretation is reasonable; the date restriction in the first clause of
the regulation clearly implies that the "additional claim" must be filed
after March 1, 1978. Since the additional claim in this case was not
filed after that date, merger cannot occur under 20 C.F.R.
§ 725.309(c).

Harman suggests that the Director's interpretation"results in the
absurdity of eliminating merger of simultaneously pending claims
prior to March 1, 1978." (Reply at 10.) The Director's interpretation,
however, does not preclude the merger of such claims; 20 C.F.R.
§ 727.103(c) provides for the handling of multiple pre-March 1, 1978
claims and allows, in certain circumstances for their merger.5
_________________________________________________________________
5 Harman does not argue that 20 C.F.R. § 727.103(c) requires merger
here.

                     9
Standing alone, neither Layne's Part B claim nor his Part C claim
satisfies the statutory requirements for transfer. The Part C claim was
not denied prior to March 1, 1978; the Part B claim was not approved
under section 945. Thus, even if we were to accept the alternate con-
tention made by Harman and Layne that Layne's failure to request
review of the Part B claim is excused for good cause, the Part B claim
still would not satisfy the statutory requirements for transfer. As indi-
cated above, 20 C.F.R. § 725.496(d) provides that no claim may
transfer unless the claimant has requested review. While good cause
may prevent the claimant's failure to timely request review from bar-
ring transfer, it cannot be a basis for creating the legal fiction that the
claim was actually reviewed and approved under section 945, as
required by the Act's transfer of liability provision. See 30 U.S.C.
§ 932(c), (j)(3).

In Director, OWCP v. Quatro Mining Co., 901 F.2d 532 (6th Cir.
1990), the United States Court of Appeals for the Sixth Circuit
allowed liability for a claim to transfer to the Trust Fund where the
claimant's failure to request review was excused for good cause but
where the claim was never approved under section 945. In Quatro,
the ALJ determined that the miner never received an election card and
therefore had good cause for his failure to request review. See id. at
534. The ALJ dismissed the mine operator as the responsible party
and transferred liability to the Trust Fund. See id. at 534-35. The BRB
affirmed and the Director appealed. See id. at 535. Significantly, the
only issue raised by the Director on appeal was the jurisdiction of the
ALJ to make the "good cause" determination, see id. at 536; the
absence of a "claim . . . approved in accordance with the provisions
of section 945" was not advanced by the Director as a reason to
reverse the transfer decision. Thus, the Quatro court did not address
the specific issue we find to be dispositive here.

For the reasons discussed above, we find that Layne's Part B and
Part C claims cannot merge under 20 C.F.R. § 725.309(c). Because
neither of Layne's claims alone can satisfy the requirements for trans-
fer and because Harman has pointed to no other applicable merger
regulation, we conclude that liability cannot transfer to the Trust Fund
and Harman cannot be dismissed as a responsible party.

                     10
B

In the alternative, Harman contends that the ALJ's denial of its
motion to reopen the record warrants a new trial. According to Har-
man, after the record was closed in the case, the ALJ and BRB
applied new, stricter standards for (b)(2) and (b)(3) rebuttal without
reopening the record and allowing Harman to present additional evi-
dence to satisfy the new standards. According to Harman, the ALJ's
refusal to reopen the record violated its rights under sections 554 and
556 of the Administrative Procedures Act ("APA") and under the Due
Process Clause of the Fifth Amendment.6 We reject these contentions
and conclude that the ALJ did not abuse his discretion in refusing to
reopen the record for additional rebuttal evidence. See 20 C.F.R.
§ 725.455(c) ("The conduct of the hearing and the order in which alle-
gations and evidence shall be presented shall be within the discretion
of the [ALJ] . . . .").

20 C.F.R. § 727.203(a) creates an interim presumption of disability
if certain medical requirements are met. See supra note 1. An
employer can establish (b)(2) rebuttal by proving"that the individual
is able to do his usual coal mine work or comparable and gainful
work," 20 C.F.R. § 727.203(b)(2); he can establish (b)(3) rebuttal by
proving "that the total disability or death of the miner did not arise
in whole or in part out of coal mine employment." Id.
§ 727.203(b)(3).

Citing the BRB's decision in Jones v. The New River Co., 3 BLR
1-199 (1981), Harman argues that at the time of the initial hearing in
1983, an employer could establish (b)(3) rebuttal by showing that the
miner's pneumoconiosis was not totally disabling. (Appellant's Br. at
32.) According to Harman, in Bethlehem Mines Corp. v. Massey, 736
F.2d 120 (4th Cir. 1984), this court tightened the (b)(3) rebuttal stan-
dard, requiring that the employer rule out any contribution to or
_________________________________________________________________
6 Sections 554 and 556 of the APA apply to DOL black lung adjudica-
tions. See 33 U.S.C. § 919(d); 30 U.S.C. § 932(a); see also Bethlehem
Mines Corp. v. Henderson, 939 F.2d 143, 148 (4th Cir. 1991).

Harman does not argue that the "new" standards are inapplicable in
this case.

                    11
aggravation of the claimant's impairment by coal mine employment.
(Appellant's Br. at 32.) Harman contends that because Massey was
decided after the record was closed in this case and because the ALJ
and BRB applied the decision in their rulings, it is entitled to present
additional evidence to satisfy the "new" Massey standard for (b)(3)
rebuttal.

Harman correctly characterizes our holding in Massey but incor-
rectly suggests that the case constituted a change in the law. In
Massey, we rejected the mine operator's argument that an employer
can establish (b)(3) rebuttal by showing that the miner's pneumoconi-
osis is not in and of itself totally disabling. We stated: "Pneumoconio-
sis contracted during coal mine employment must be a causative
factor in the miner's total disability, but it need not be the exclusive
causative factor rendering the claimant totally disabled in order to be
compensable under the Black Lung Act." Id. at 123. Therefore, we
concluded, in order to establish (b)(3) rebuttal,"the employer must
rule out the causal relationship between the miner's total disability
and his coal mine employment." Id. (emphasis in original). Our hold-
ing in Massey expressly relied on our prior decision in Hampton v.
Department of Labor, 678 F.2d 506 (4th Cir. 1982) (per curiam).
Hampton indicated that in order to establish (b)(3) rebuttal, the
employer had to "rule out the causal relationship between [the
miner's] disability and his coal mine employment." Id. at 508 (citing
Rose v. Clinchfield Coal Co., 614 F.2d 936 (4th Cir. 1980)). Thus,
rather than articulating a new and stricter standard for (b)(3) rebuttal,
Massey simply reaffirmed preexisting law. Since there was no change
in the law regarding (b)(3) rebuttal, the ALJ did not abuse his discre-
tion in denying Harman's motion to reopen the record for additional
(b)(3) rebuttal evidence.

Regarding (b)(2) rebuttal, Harman argues that at the time of the
hearing, existing BRB decisions held that an employer could establish
(b)(2) rebuttal by demonstrating that a miner was not totally disabled
by a respiratory or pulmonary impairment.7 Harman further argues
that after the record was closed in this case, this court, in Sykes v.
Director, OWCP, 812 F.2d 890 (4th Cir. 1987), altered the rebuttal
_________________________________________________________________
7 Harman thus appears to suggest that at the time of the initial hearing,
the BRB had adopted identical standards for (b)(2) and (b)(3) rebuttal.

                     12
standard, holding that (b)(2) rebuttal is established only if the
employer shows that a miner is not disabled due to any cause. On the
first remand, the ALJ applied Sykes and found that Harman had not
established (b)(2) rebuttal. (J.A. at 27 ("As Dr. O'Neill's opinion is
restricted . . . to the lack of disability solely from a respiratory or pul-
monary standpoint, it fails to establish rebuttal under § 727.203(b)(2)
pursuant to Sykes . . . .").) Harman contends that by applying Sykes
on remand but refusing to reopen the record for additional (b)(2) evi-
dence, the ALJ violated the APA and due process. Specifically, Har-
man argues that the ALJ's refusal to reopen violated sections
554(b)(3) and 556(d) of the APA.

In Sykes, this court rejected the BRB's position that an employer
may establish (b)(2) rebuttal by showing that a miner, while conced-
edly totally disabled, is not disabled for pulmonary or respiratory rea-
sons, finding such a position "contrary to the plain language of the
statute" and "belied by the words of the regulation." See Sykes, 812
F.2d at 893. We stated:

          Section 727.203(b)(2) is concerned with the question of
          whether miners are totally disabled for whatever reason.
          There is no inquiry into causation in a proper
          § 727.203(b)(2) rebuttal. The reference in that subsection to
          § 410 merely clarifies the nature of "usual and comparable
          work"; it does not bring causation into question. Causation
          is addressed in § 727.203(b)(3). Once the miner's disability
          is conceded, then the question arises whether that disability
          is unrelated to mine work.

Id. at 893-94 (emphasis in original).

Section 554(b)(3) of the APA provides: "Persons entitled to notice
of an agency hearing shall be timely informed of . .. the matters of
fact and law asserted." 5 U.S.C. § 554(b)(3). Assuming arguendo that
section 554(b)(3) applies to the case at hand and provides a basis for
granting the relief requested, its requirements are satisfied where the
party to the proceeding is "reasonably apprised of the issues in contro-
versy[ ] and is not misled." Long v. Board of Governors of the Fed-
eral Reserve System, 117 F.3d 1145, 1158 (10th Cir. 1997) (quotation
omitted). Here, the very regulation at issue provided Harman with

                      13
adequate notice of the applicable rebuttal standard. The regulation
provides that in order to establish (b)(2) rebuttal, the employer must
show "that the individual is able to do his usual coal mine work or
comparable and gainful work (see § 410.412(a)(1) of this title)." 20
C.F.R. § 727.203(b)(2). This text put Harman on notice that it could
establish (b)(2) rebuttal by showing that Layne was not disabled. The
BRB decisions holding that (b)(2) rebuttal could be established with
the lesser showing that the miner was not disabled for pulmonary or
respiratory reasons do not negate this fact. Significantly, Harman does
not suggest that the BRB decisions held that the only way to establish
(b)(2) rebuttal was to prove that the miner was not disabled for pul-
monary or respiratory reasons or that those decisions rejected the
notion that an employer could establish (b)(2) rebuttal by proving that
the miner was not disabled for any reason. Notwithstanding the fact
that the BRB decisions had not been reviewed by this court and were
at odds with the regulation, see Sykes, 812 F.2d at 893 (holding that
Board's position that (b)(2) rebuttal may be established with proof
that miner is not totally disabled for pulmonary or respiratory reasons
is "belied by the words of the regulation"), Harman chose to restrict
its evidence to the lesser standard they sanctioned. That it chose to do
so does not allow it to avoid the fact that it was on notice of the higher
standard.

APA section 556(d) provides, in relevant part, that"[a] party is
entitled to present his case or defense by oral or documentary evi-
dence, to submit rebuttal evidence, and to conduct such cross-
examination as may be required for a full and true disclosure of the
facts." 5 U.S.C. § 556(d). Harman was not prevented from presenting
(b)(2) rebuttal evidence. As indicated above, instead of presenting
evidence to meet the standard articulated in the regulation, Harman
chose to rely on untested BRB decisions articulating a lesser standard.
Harman, by its own volition, restricted presentation of (b)(2) rebuttal
evidence to whether Layne was totally disabled by a pulmonary or
respiratory impairment. Having made this choice, Harman cannot
now complain that it was prevented from presenting (b)(2) rebuttal
evidence.

We thus conclude that the ALJ's refusal to reopen the record for
additional (b)(2) rebuttal evidence did not violate the requirements of

                     14
the APA or due process and was not an abuse of discretion.8 Finally,
we note that even if the ALJ had erred in refusing to reopen the
record, remand would not be appropriate as Harman seems to have
conceded that it cannot now establish (b)(2) rebuttal under Sykes. (See
Reply at 21 ("It is certainly likely the rebuttal under Section
727.203(b)(2) will be unavailable under the Sykes standard since Mr.
Layne is unable to perform his usual coal mine employment duties in
light of his heart disease.") (emphasis added).)

III

For the reasons discussed above, the decision of the BRB affirming
the ALJ is affirmed.

AFFIRMED
_________________________________________________________________
8 To the extent Harlan Bell Coal Co. v. Lemar, 904 F.2d 1042 (6th Cir.
1990) (finding "manifest injustice" and a due process violation in the
agency's refusal to reopen the record for additional (b)(2) evidence after
the (b)(2) standard changed), could be thought to lay down a flat require-
ment for reopening whenever there is an intervening change of law, we
respectfully disagree. In fact, though Harman seems to rely upon it for
such a flat rule, we doubt that it was so intended.

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