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Department of Labor: 00 3086

Department of Labor: 00 3086

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Published by: Department of Labor on Jan 27, 2008
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et al.
,))Plaintiffs,))v. )Civ. No. 00-3086)(EGS)ELAINE L. CHAO,
et al.
,))Defendants.) ______________________________)
Plaintiffs commenced this action for declaratory judgmentand injunctive relief and request this Court to enjoin theenforcement of final regulations issued by the defendants onDecember 20, 2000. The regulations are published at 65 FederalRegister 79920-80107 under Title IV of the Federal Coal MineHealth and Safety Act of 1969 as amended, 30 U.S.C. §§ 901-945,also known as the Black Lung Benefits Act(“BLBA”). The BLBAprovides benefits “to coal miners who are totally disabled due topneumoconiosis and to the surviving dependents of miners whosedeath was due to such disease.” 30 U.S.C. § 901(a).The subject regulations are organized into four principalparts. The first part, 20 C.F.R. Part 718, sets forth themedical proof necessary to establish entitlement to black lungbenefits. The second part, 20 C.F.R. Part 722, prescribescriteria for determining whether a state’s workers’ compensationprogram provides “adequate coverage,” 30 U.S.C.§ 931 (b), and
-2-therefore provides the exclusive means of black lung recovery forminers in that state. The third part, 20 C.F.R. Part 725, setsforth the procedures for adjudicating claims. And the fourthpart, 20 C.F.R. Part 726, establishes guidelines for theinsurance or self-insurance obligations imposed on coal mineoperators by the BLBA.Pending before the Court are plaintiffs’ motion for summaryjudgment and defendants’ motion to dismiss or, in thealternative, for summary judgment. Also pending is intervenors’motion for summary judgment, which does not support defendants’motion to dismiss, but does support defendants’ defense of thechallenged regulations. The defendants and intervenors have alsofiled motions to strike certain affidavits attached toplaintiffs’ motion for summary judgment as outside theadministrative record. Plaintiffs have also filed a motion tovacate and remand the proceedings, based on plaintiffs’contention that the current administration does not support thepolicy choices behind the rules. Finally, the Coal MiningCompensation Rating Bureau of Pennsylvania filed a motion toappear as
amicus curiae
. On June 18, 2001, the Court grantedplaintiffs’ Motion for Partial Voluntary Dismissal of Claims.Count I paragraph 23(q), Count V paragraph 40(r), and Count VIIIparagraph 52(f) of plaintiffs’ amended complaint were dismissedwithout prejudice. Additionally, plaintiffs’ did not provide anydiscussion or only cursory argument in their pleadings regardingseveral of the rules challenged in their amended complaint.
The rules that plaintiffs’ challenge in their Amended Complaintfor which they offer no argument are: § 718.301, § 725.101(a)(29), §725.101(a)(32), § 725.202, § 725.407, § 725.410. Plaintiffs alsoprovide cursory argument to support their claims that § 718.201creates an unlawful burden shifting presumption and denies a full andfair hearing, § 725.101(a)(31) is impermissibly retroactive, § 725.406violates 33 U.S.C. § 928, § 725.408 violates 33 U.S.C. § 928, §725.409 violates 33 U.S.C. § 928, §§ 725.411-418 violates 33 U.S.C. §928, § 725.607 violates 33 U.S.C. § 932, § 725.493 denies a full andfair hearing, § 726.8 denies a full and fair hearing, § 725.2 exceedsthe DOL’s statutory authority, § 725.103 is impermissibly retroactive,and § 725.409 denies a full and fair hearing.-3-Although plaintiffs’ argue that they have not abandoned anyclaims, those for which they provide only cursory argument aredeemed conceded.
See, e.g., Washington Legal Clinic for theHomeless v. Barry 
, 107 F.3d 32, 39 (D.C. Cir. 1997).Upon consideration of the pending motions, the points andauthorities in support of and in opposition thereto, thearguments of counsel, and for the reasons set forth herein, theCourt will
plaintiffs’ motion for summary judgment anddefendants’ motion to dismiss the complaint on jurisdictionalgrounds. Further, the Court will
intervenors’ anddefendants’ motions for summary judgment defending the challengedregulations.
Plaintiffs are the National Mining Association, the nationaltrade association for the U.S. mining industry, the Old RepublicInsurance Company, National Union Fire Insurance Company ofPittsburgh, Pennsylvania, and American Mining Insurance Company,commercial insurance carriers, the Ohio Valley Coal Company, an

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