*1 that contend The commissioners 308, Strickland, 420 95 S.Ct. v. U.S. Wood HUBBARD, Appellant, Abbott (1975), dismiss
992,
supports
43 L.Ed.2d
That case extended
v.
this action.
al of
to school board officials
immunity
qualified
ANO,
Joseph
A. CALIF
ap
cases have
acting
good
in
faith. Other
Health, Education and
range of state
to a broad
this defense
plied
Welfare, Appellee.
Rhodes,
416 U.S.
See Scheuer
officials.
1683,
241-49,
232, 94 S.Ct. may ap good cases faith (1974). In some Appeals, United Court of States in complaint, but the face of pear from Fourth Circuit. most, it not. The in does this commissioners act allege that the Rodgers Argued Feb. 1978. and “in retalia bad faith” “in calculated ed Aug. Decided criticism of them. Rodgers’s tion” for immuni Therefore, qualified the defense summarily dismiss no basis for
ty affords complaint.
ing the sum, Rodg- truth of the accepting the
In stage of we must at this allegations
ers’ —as they that conclude proceedings —we of action sufficiently alleged a cause have equal violations of 1983 for
under § clauses of the process and due
protection hold We therefore amendment.
fourteenth not have been complaint should their jurisdic- federal for lack of either
dismissed a claim founded to state for failure
tion or we vacate the dis- Accordingly,
on § dismissing aspect this court’s order
trict proceed- for further and remand
the case opinion. par- Each with this
ings consistent its own costs.
ty shall bear part. in
Affirmed part. and remanded
Vacated HALL, Judge, concurring: Circuit
K. K. I opinion because majority join
I But in mandates its result. the law
think plaintiffs state in must note
concurrence dep- the constitutional complaint that
their have been effectuat- they suffered
rivations in a design loop of a by the primarily
ed they which admit system sewage
town but design function engineering
serves an high sewage upon them a inflicts allegation indicates an
assessment. Such concerns underlying dispute and, charges town sewer
reasonableness
therefore, be settled which should is one court.
state *2 Crews,
Richard W. Beckley, (E. W. Va. Meadows, Jr., Carl Crews, Meadows & Beckley, Va., brief), W. on for appellant. Phillip Morse, Special I. Asst. U. Atty., S. Baltimore, (John Field, Md. III, A. U. S. Atty., Charleston, Va.,W. brief), appellee. BRYAN,
Before Senior Circuit Judge, HALL, WIDENER and Circuit Judges. HALL, K. K. Judge. Circuit I.
BASIC ENTITLEMENT adopts The court incorporates its dis cussion of basic entitlement found in Part I Califano, of Petry v.
1978). Claimant here relies on pre sumption found in 20 410.414(b), C.F.R. § did the claimant in Petry, also, and here Secretary does challenge the facts that claimant is miner, or was a coal pneu that moconiosis, exist, if found to arose out of the claimant’s coal employment,1 mine 1. found that: these records show that the claimant was a years coal miner for at least 20 and is there- more, 410.414(b) through presentation it is of evi- purposes of for the X-rays, biopsies autop- the fifteen- dence other than claimant meets presumption, 410.414(b) sies that the requirement. year raised, finding and it is likewise the other evidence does not demonstrate a II. respiratory impair- chronic 410.414(b) PRESUMPTION THE § *3 presumption ment that the existence of the incorpo- adopts further The court Therefore, is defeated. inconclusive or con- 410.- the 20 C.F.R. § rates its discussion tradictory X-rays results of the inure to the II of Re- found in Part 414(b) presumption party. of neither benefit try. Pulmonary 2. function studies III. The record reveals that five pulmonary APPEAL THIS performed, function studies were four of plain that Although acknowledging apparently which were found by credible year requirement meets the fifteen
tiff Secretary.3 Under the regula interim Secretary denies that presumption, tions, 410.490(b), 20 C.F.R. a claimant due to a chronic disabled claimant years with at least fifteen of coal mine A review of the impairment. respiratory employment presumed totally will be dis analysis of the light of our pneumoconiosis to pulmonary abled due if Petry, necessary as found in presumption presence function studies reveal the of a Secretary’s was if the decision to determine disease, pulmonary chronic or substantial evidence.2 based on specified regu demonstrated values in the rely lations.4 Plaintiff does not on the X-rays 1. regula created in the interim tions, regulations merely comparison prohibit The Act and but uses of his study on the solely pulmonary benefits function values those of a claim for denial X-rays. persuasive 30 in the table as evidence of his negative basis of height 410.414(c). disability. Further- total of the claimant 923(b); 20 C.F.R. § supports Secretary’s 3. Substantial evidence consideration of this to full fore entitled regulations, finding applicable fifth in- that function test under claim statutory presumptions reported findings cluding set out was not credible. “The all sharp in such contrast to all of [were] therein. forty-two years validity fact, alleged plaintiff of coal earlier results that the test test In 410.416, highly questionable.” experience. 20 [was] See C.F.R. mine part, pertinent reads in employed (a) for ten or more if a miner was 4. The relevant values are as follows: mines, years coal and is suf- in the Nation’s Equal to or pneumoconiosis, fering from or suffered less than— per- presumed, in the absence of will be Height and MW FEVi contrary, evidence to the suasive __________________2.4 69" 96 employ- pneumoconiosis arose out of such __________________2.5 70" 100 ment. __________________2.6 71" 104 72" ......... 2.6 104 relied on the claim- of the evidence 2. Some more___________2.7 30, 73" 108 1973 after the June ant was accumulated Depart- filing claims with cutoff date 410.490(b)(l)(ii). 20 C.F.R. Health, Education and Welfare. ment of expiratory FEV, stands for one-second forced this evidence relevant to considered volume, and measures the volume of air claim- claim, Talley v. 550 instant see second, expire expressed ant can in one 911, and made no 917 F.2d liters. pre-cutoff date and distinction between voluntary MW for maximum ventila- stands agree post-cutoff We with the date evidence. tion, and measures claimant’s maximum Secretary evaluated the in which the method breathing capacity, expressed per in liters min- evidence. ute. 322 ity,7 the physician the tests administered to the results of who administered this were as follows: test concluded that
claimant claimant had a marked disturbance in the ventilation to Height MW of FEVx profusion relationship, indicating pneumo Claimant The Secretary coniosis. does directly Oct. 1970 50 1. 71% test, rebut the results of this later blood-gas Oct. 1971 71% 4.2 166 physician’s diagnosis or the resulting there 3.05 May 16, from, except say 2.83 this doctor’s find 4. Feb. 20, ings are inconsistent with diagnostic apparent The values in the first test reports. values,5 within the table but as ly come above, rely plaintiff does not on the noted 4. Physical examination recovery; however, of this test for results conjunction In to or in addition with the results, along examining with the above, tests outlined claimant was exam- findings of a mild restrictive physician’s *4 on personally by ined several occasions five low MW disproportionately and a defect doctors, having personal one been his physi- total other evidence disabili are relevant of years. cian for several Four of five the 410.414(c). The other three tests ty under § lung doctors found claimant had black and by physicians as interpreted were claimant’s expressly two found claimant disabled. Al- normal, minimally or indicative of either though basing their part conclusions in on insufficiency. ventilatory Al restrictive disputed above, the tests they outlined also though compel an this evidence does not examining had the benefit of personally the benefits, undisputed testimony the award evaluating claimant and his condition. Af- physicians prov is relevant in of claimant’s performing ter an exercise test phy- for one totally disabling respiratory a chronic ing sician, whose testimony Secretary ex- impairment.6 reason, no apparent cluded for claimant was pale, noted sweating to be wheezing. Blood-gas tests physician The same also found the existence blood-gas The record reveals that tests subjective of rales other symptoms of a performed in 1972 1974. The 1972 were impairment, respiratory the absence of produced demonstrating values normal tests Secretary which the relied on in his denial insufficiency ventilatory before to minimal of an award to claimant. exercise, ventilatory response and abnormal A with exercise. consultant to Secre- importantly, Most the claimant’s totally negative. reviewed this test as tary treating physician, after observing claimant 1974 extremely during The tests resulted in values a personally week of hospitalization, provided regulations to those in the conducting tests, close after several and after pneu- which would entitle a claimant with reviewing record, entire concluded that total to a disabil- a moconiosis claimant had marked disturbance in the light 1977). Pulmonary of the results of In the October function studies do not con- test, Secretary clusively it was inaccurate for the to pulmonary show absence of impairment. that none of the tests within the respiratory conclude came Bozwich v. provided regulations. (8th levels 1977), relying 558 F.2d Cir. on Security 37-73, Ruling Social at 4. regulations specifically 6. The statute and clas- sify type as one function studies Appendix regulations, 7. See to Part D of the may to establish relevant evidence a miner use seq. Again, C.F.R. 410.401 et § claimant totally disabling impair- respiratory a chronic rely blood-gas does not on the tests alone as 923(b); 20 C.F.R. 410.- ment. benefits, qualifying compari- him for but uses a 414(c). Although these are relevant studies regulations son of his results with those in the totally establishing disabling the existence of a help disability. to establish his total As he respiratory impairment, failure to chronic Secretary does in this often uses establish that the table values does not achieve meet failure to the table values as evidence of presumption. claimant is not entitled to the disability. no (7th Weinberger, Cir. Henson case, however, In this relationship, as there were perfusion to also- ventilation re- sults of pulmonary function tests and blood-gas the 1974 test blood- by demonstrated gas tests which either came within the of the claimant. val- his observation general ues found in regulations, or came ex- reliance a claim- great places This court tremely close, indicating below-normal res- Martin v. treating physician, Secre- ant’s piratory ability. did not give especially tary, 492 F.2d weight proper to these test results which Secretary neither has the claim- where the part were in the basis for the various find- medically nor rebuts the ant examined ings of respiratory impairment and total physicians rely. upon which claimant’s disability by physicians. claimant’s testimony own 5. Claimant’s Therefore, we hold that the Secre tary’s consideration is decision Although “primary supported was sub severity of stantial evidence and that the medical the individ claimant did given to the establish the totally existence of a disabling 20 C.F.R. pneumoconiosis,” ual’s respiratory impairment, giving chronic rise claimant is testimony of the 410.414(b) to the presumption. We re im proving a verse the court and direct district to was not and it rebutted pairment, remand the Secretary. case to the Further re testimony own Secretary. Claimant’s more, since nearly eight years this claim is breath, low tolerance vealed shortness old, seewe no need further considera exertion, sleep any pains, chest disturbed tion of entitlement issue. Our review cough, and similar oc ing, productive briefs, of the and oral argu who physicians examined currences. ments, *5 Secretary indicates that would verified clinically most of plaintiff unable presumption be to rebut disputed any of them. and none complaints proof either that the claimant did not suf Secretary properly found pneumoconiosis, fer from or that his impair least of twenty years had at the claimant ment did not working arise from his in the employment, and that he was mining coal Negative mines.9 disputed X-rays or alone presumptions of the to the benefit entitled claim, cannot be denying the basis for a Although arising claimant’s therefrom.8 923(b); 410.414(c), 20 C.F.R. § § and in the length employment mines does not of the other evidence in the record does not of it is any presumption disability, create pneumoconiosis. show non-existence of whether determining there is a in Therefore, the district court should enter an totally disabling respiratory impairment. order instructing Secretary to award F.2d Phillips v. benefits to the claimant. 1977). (4th Cir. REVERSED AND REMANDED WITH INSTRUCTIONS. IV. WIDENER, Judge, Circuit dissenting:
CONCLUSION respectfully I to the dissent direction of general same reveals the weak- This case court to judgment enter in favor of the Secretary’s denial as did Pe- nesses in the Rather, plaintiff. the case I think should objective many of the medi- try. Although Secretary be remanded to the to reconsider evidence, other disputed, cal were the ease proper under the standards. ad- properly did which the dress, Although the existence a agree part indicated of I with that of the reasoning parts of set out in respiratory impairment. the court I disabling chronic not, pneumoconiosis, supra. respi- have or that his 8. See note 1 ratory pulmonary impairment or did not arise established, reg- of, with, presumption employment is out or Once the in connection in ways provide in two which it can be ulations a coal mine. 410.414(b)(2). rebutted: 20 C.F.R. § may only if it be This rebutted not, did that the miner does or is established agree with much evidence I do not submitted opinion. physi- II of the claimant’s cian, opinion affidavits, and, or his reasoning part in III of wife’s in of the miner, follow: case of a appropriate reasons which deceased other for the persons affidavits of with knowledge of the I physical condition, miner’s sup- other (italics portive added). materials.” part opinion panel of the of That “(1) X-rays,” page 4 of the denominated It at apparent is once that the across-the- Petry verbatim from opinion, copied ruling board that the panel makes here that Califano, 1978). The inconclusive or contradictory results of X- paragraph of that is “There- last sentence rays inure to the benefit of neither party is fore, contradictory results of inconclusive in conflict with 923(b). 30 U.S.C. § to the benefit of neither X-rays inure think the correct construction of party.” 921(c)(4) respect with X-ray to the § re- application quarrel I do not quirement above mentioned is that when all Petry, may very for it well that sentence X-ray of the evidence submitted connec- Here, how- have been true in that case. tion with the claim interpreted as nega- ever, extend the panel obviously would tive, so that the claim does not meet the to, especially I have referred paragraph requirements then, 921(c)(3)(A), if oth- quoted, the sentence I have into an across- er evidence demonstrates the existence of a application, meaning that where the-board totally disabling respiratory pulmonary im- contradictory X-ray there is it pairment, the presumption should arise. may party. inure to the benefit of neither 921(c)(4) Construing this manner makes entirely 923(b) consistent with application Petry This across-the-board gives full effect to both sections of the 923(b). contrary I think is to 30 U.S.C. § statute. That statutes should be read as analysis keyed What I think the should be consistent rather than inconsistent is too 923(b) to is the reconciliation of 30 U.S.C. § familiar a rule to bear citation. 921(b)(4). and U.S.C. § case, then, IAs see the assuming all the 921(c)(4) provides that a miner Section X-ray evidence does not fulfill the statutory employed years or more in an under- requirements 921(c)(3), if the ground presents lung mine who black *6 evidence is sufficient to establish pre- the connection with” claim and “submitted in sumption, in determining if the presump- X-ray “interpreted such claim is an which is overcome, tion is the Secretary “shall” con- negative respect require- the as with to sider “all relevant evidence” which specifi- ments”, permitting recovery on account of cally by statute “X-ray includes examina- statute, X-ray such under the terms of the Thus, tion.” I think the Secretary is enti- the then “if other evidence demonstrates tled to X-ray consider examinations in con- totally existence of a sidering whether presumption or not the impairment, there shall be a pulmonary or permitted by 921(c)(4) overcome, § as he that such miner is rebuttable is not in considering whether it arises. to totally pneumoconiosis. disabled due ” just quoted language analysis . The relat- I think the in this case forbid- ing part ding Secretary to the consideration of evidence in the taking from into read, however, 923(b). B claims must be in accord- account is contrary to No rule of § statutory ance with the mandate of evidence which I am prevents familiar with 923(b). part A that section is: “In the of consideration of relevant § evidence un- determining claims under validity by public the less it is excluded policy, Constitu- tion, part B], statute, [part this all relevant evidence or none any of which have considered, rele- including, application shall be where here. If X-rays some of the vant, gas by medical tests such as blood stu- submitted either in side connection with dies, examination, X-ray electrocardiogram, lung a black claim show the miner not to studies, pulmonary physical per- lung, or have black then they function should be con- tests, sidered, mind, however, history, keeping formance medical in any that no studies,” gas “blood on the basis consider do not be- solely denied can “be claim analysis panel the is sufficient roentgenogram.” chest lieve the of a results the vein, the as entirely gas if some of discount it does the blood 923(b). In like to except have as it weighs miner to the evidence and show the X-rays submitted Secretary “demonstrating must them as a distur- think the considers lung, I also black perfusion in the ventilation to rela- part as a of “all bance those consider Nothing in that I can evidence,” although X-ray tionship.” evidence the record the gas study what a normal was to establish see shows blood insufficient alone viewed 921(c)(3). parties I fault for recovery equally would be. both to under right oversight, plaintiff of other because he has this only reason consideration The proof, X-rays Secretary the burden of and the be- separately from the evidence 921(c)(4). undoubtedly he the information in cause has statute requirement the whole at hand. judging purposes For other be in cases should case, evidence Ill any it in in just as
weighed course, statutory restrictions to subject, of opinion panel of the does not men- command. 73-37, Security Ruling expressly tion Social by denying relied on
II Secretary says, page 10 of claim. tests, opinion Appeals opinion (App. p. of the Council gas The blood guided notes, by Security that it “is further were administered Social panel 73-37 . . Ruling are: . which holds that physicians. They claimant’s X-ray function test where disability un- results fail establish total Arterial Arterial PO2 PCO2 (mmHri the interim criteria of there is der is not an inference the miner The Council further stated that disabled.” “that relevant evi- it believed the other 3/12/74 Date 3/12/74 presented case does not out- dence this 5/16/72 37.5 5/16/72 . by negative inference weigh presented rest) (at values which X-rays pulmonary study the liberal interim criteria that the exceed 36.5 5/16/72 5/16/72 (after was not totally claimant disabled due to exercise) any at pneumoconiosis, presumed, actual or 400-499) or before 1973.” (parts time on June 798 of CFR 20 page On permit a (1977), are tabulated values Thus, gave specifically Council lung black disability due to finding of total to the it found weight inference which was rebutting such of evidence the absence Security Ruling. required Social equal to or oxygen tension is finding if the simply Security I would hold that Social' to the values relation stated less than *7 Ruling principal 73-37 is rea- invalid. carbon dioxide tension. For dioxide carbon my thinking up it sets an son is permit- tension oxygen tension of neither authorized statute nor inference 59; dioxide recovery is for carbon ting knowledge. by the dictates common 57.5; for carbon 37.5, and oxygen prove positive a failure to does not neces- oxygen is 58.5. dioxide negative infer the the inference sarily none of apparent is at once It ruling may It also up by requires. set recovery. readings permit tension oxygen 923(b) contrary to be somewhat to § be said values, required are outside the them All of requires to consider all above the substantially are of them and two evidence, setting up as well as an breaking point. evidentiary rule authorized 921(c)(4) in the consideration of what fact that in view of the Especially the ex- phy- own other evidence should demonstrate by the claimant’s were made 923(b) istence of and the command of § sicians Prokes v. impairment. See (6th Mathews, 559 F.2d Cir. v.
Bozwich
1977).
IV panel I think
On whole the Secretary
withdraws from the function not think weighing do One illus- permissible
that is this case. that, should suffice al-
tration which contradictory
though panel X-ray holds
results cancel each other out and inure to party, goes
the benefit of neither on to plaintiff of
give the benefit to the contra- tests, ventilatory
dictory gas and blood even thereof, no interpretations autho- I can
rization find.
I would vacate and remand.
J. P. EMPLOYEES EDUCA- STEVENS COMMITTEE, unincorpo- an TIONAL association, Appellant,
rated
NATIONAL LABOR RELATIONS
BOARD, Truesdale, John Executive Sec-
retary, Betty Murphy, Southard Chair-
man, Member, Fanning, Howard John H.
Jenkins, Jr., Member, Penello, John A.
Member, Walther, Member, Peter D. Ries,
Bernard Administrative Law Individually, Chairman,
Judge, and as
Members, Administrative Law
Judge, capacities, Appel- official in their
lee,
Amalgamated Clothing and Textile Union, Amicus
Workers Curiae.
No. 77-1811. Appeals,
United Court of States
Fourth Circuit.
Argued June Sept.
Decided