Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994)

512 U.S. 267
114 S.Ct. 2251
129 L.Ed.2d 221

DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, DEPARTMENT OF
LABOR, Petitioner
v.
GREENWICH COLLIERIES. DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
DEPARTMENT OF LABOR, Petitioner v. MAHER
TERMINALS, INC., et al.
No. 93-744.

Supreme Court of the United States
Argued April 25, 1994.
Decided June 20, 1994.*

Syllabus **
In adjudicating separate benefits claims under the Black Lung Benefits
Act (BLBA) and the Longshore and Harbor Workers' Compensation Act
(LHWCA), the Department of Labor Administrative Law Judges (ALJs)
both applied the Department's "true doubt" rule. This rule essentially shifts
the burden of persuasion to the party opposing the claim so that when, as
here, the evidence is evenly balanced, the benefits claimant wins. In both
cases, the Department's Benefits Review Board affirmed the ALJ's
decision to award benefits. However, the Court of Appeals vacated the
Board's decision in the BLBA case, holding that the true doubt rule is
inconsistent with the Department's own BLBA regulations, as well as with
Mullins Coal Co. v. Director, Office of Workers' Compensation Programs,
484 U.S. 135, 108 S.Ct. 427, 98 L.Ed.2d 450. And, in the LHWCA case,
the court reversed on the ground that the true doubt rule violates § 7(c) of
the Administrative Procedure Act (APA), which states that "[e]xcept as
otherwise provided by statute, the proponent of a rule or order has the
burden of proof."
Held:

1. Section 7(c)'s burden of proof provision applies to adjudications under
the LHWCA and the BLBA, each of which contains a section
incorporating the APA. Neither 33 U.S.C. § 923(a), which relieves the
Department of certain evidentiary and procedural requirements in
LHWCA investigations and hearings, nor an ambiguous BLBA regulation
providing that claimants be given the benefit of all reasonable doubt, is
sufficient to overcome the presumption that adjudications are subject to
the APA. See Brownell v. Tom We Shung, 352 U.S. 180, 185, 77 S.Ct.
252, 255-256, 1 L.Ed.2d 225. Pp. ____.
2. The true doubt rule is not consistent with § 7(c). Pp. 2255-2259.
(a) An examination of Hill v. Smith, 260 U.S. 592, 594, 43 S.Ct. 219, 219220, 67 L.Ed. 419, and other relevant cases, as well as contemporary
evidence treatises, demonstrates that, in 1946, the year the APA was
enacted, the ordinary meaning of § 7(c)'s "burden of proof" phrase was
burden of persuasion (i.e., the obligation to persuade the trier of fact of the
truth of a proposition), not simply burden of production (i.e., the
obligation to come forward with evidence to support a claim). This Court
presumes that Congress intended the phrase to have the meaning generally
accepted in the legal community at the time of enactment. See, e.g.,
Holmes v. Securities Investor Protection Corp., 503 U.S. ----, ----, 112
S.Ct. 1311, 1318, 117 L.Ed.2d 532. Because the true doubt rule places the
burden of persuasion on the party opposing a benefits award, it violates §
7(c)'s requirement that that burden rest with the party seeking the award.
Pp. ____.
(b) In light of the foregoing, the cursory conclusion set forth in NLRB v.
Transportation Management Corp., 462 U.S. 393, 404, n. 7, 103 S.Ct.
2469, 2475-2476, n. 7, 76 L.Ed.2d 667 — in which the Court stated that §
7(c) determines only the burden of going forward, not the burden of
persuasion — cannot withstand scrutiny. Pp. ____.
(c) The Department's reliance on imprecise and marginally relevant
passages from the APA's legislative history is unavailing. Pp. ____.
(d) The true doubt runs afoul of the APA's goal of greater uniformity of
procedure and standardization of administrative practice among the
diverse federal agencies, for under the Department's reading each agency
would be free to decide who bears the burden of persuasion. P. ____.
3. Because these cases are decided on the basis of § 7(c), this Court need
not address the Court of Appeals' holding that the true doubt rule conflicts
with BLBA regulations and Mullins Coal. P. ____. 990 F.2d 730 (CA3
1993) (first case) and 992 F.2d 1277 (CA3 1993) (second case), affirmed.

O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and SCALIA, KENNEDY, THOMAS, and
GINSBURG, JJ., joined. SOUTER, J., filed a dissenting opinion, in which
BLACKMUN and STEVENS, JJ., joined.
Edward C. DuMont, New York City, for petitioner.
Mark E. Solomons, Washington, DC, for respondents.
Justice O'CONNOR delivered the opinion of the Court.

1

In adjudicating benefits claims under the Black Lung Benefits Act (BLBA), 83
Stat. 792, as amended, 30 U.S.C. § 901 et seq. (1988 ed. and Supp. IV), and the
Longshore and Harbor Workers' Compensation Act (LHWCA), 44 Stat. 1424,
as amended, 33 U.S.C. § 901 et seq., the Department of Labor applies what it
calls the "true doubt" rule. This rule essentially shifts the burden of persuasion
to the party opposing the benefits claim — when the evidence is evenly
balanced, the benefits claimant wins. This case presents the question whether
the rule is consistent with § 7(c) of the Administrative Procedure Act (APA),
which states that "[e]xcept as otherwise provided by statute, the proponent of a
rule or order has the burden of proof." 5 U.S.C. § 556(d).

2

* We review two separate decisions of the Court of Appeals for the Third
Circuit. In one, Andrew Ondecko applied for disability benefits under the
BLBA after working as a coal miner for 31 years. The Administrative Law
Judge determined that Ondecko had pneumoconiosis (or black lung disease),
that he was totally disabled by the disease, and that the disease resulted from
coal mine employment. In resolving the first two issues, the Administrative
Law Judge relied on the true doubt rule. In resolving the third, she relied on the
rebuttable presumption that a miner with pneumoconiosis who worked in the
mines for at least 10 years developed the disease because of his employment.
20 CFR § 718.203(b) (1993). The Department's Benefits Review Board
affirmed, concluding that the Administrative Law Judge had considered all the
evidence, had found each side's evidence to be equally probative, and had
properly resolved the dispute in Ondecko's favor under the true doubt rule. The
Court of Appeals vacated the Board's decision, holding that the true doubt rule
is inconsistent with the Department's own regulations under the BLBA, §
718.403, as well as with Mullins Coal Co. v. Director, Office of Workers'
Compensation Programs, 484 U.S. 135, 108 S.Ct. 427, 98 L.Ed.2d 450 (1987).
990 F.2d 730 (CA3 1993).

3

In the other case, Michael Santoro suffered a work-related back and neck injury
while employed by respondent Maher Terminals. Within a few months Santoro
was diagnosed with nerve cancer, and he died shortly thereafter. His widow
filed a claim under the LHWCA alleging that the work injury had rendered her
husband disabled and caused his death. After reviewing the evidence for both
sides, the Administrative Law Judge found it equally probative and, relying on
the true doubt rule, awarded benefits to the claimant. The Board affirmed,
finding no error in the Administrative Law Judge's analysis or his application of
the true doubt rule. The Court of Appeals reversed, holding that the true doubt
rule is inconsistent with § 7(c) of the APA. 992 F.2d 1277 (CA3 1993). In so
holding, the court expressly disagreed with Freeman United Coal Mining Co. v.
Office of Workers' Compensation Programs, 988 F.2d 706 (CA7 1993). We
granted certiorari to resolve the conflict. 510 U.S. ----, 114 S.Ct. 751, 127
L.Ed.2d 69 (1994).
II

4

As a threshold matter, we must decide whether § 7(c)'s burden of proof
provision applies to adjudications under the LHWCA and the BLBA. Section
7(c) of the APA applies "[e]xcept as otherwise provided by statute," and the
Department argues that the statutes at issue here make clear that § 7(c) does not
apply. We disagree.

5

The Department points out that in conducting investigations or hearings
pursuant to the LHWCA, the "Board shall not be bound by common law or
statutory rules of evidence or by technical or formal rules of procedure, except
as provided by this chapter." 33 U.S.C. § 923(a). But the assignment of the
burden of proof is a rule of substantive law, American Dredging Co. v. Miller,
510 U.S. ----, ----, 114 S.Ct. 981, 988, 127 L.Ed.2d 285 (1994), so it is unclear
whether this exception even applies. More importantly, § 923 by its terms
applies "except as provided by this chapter," and the chapter provides that §
7(c) does indeed apply to the LHWCA. 33 U.S.C. § 919(d) ("[n]otwithstanding
any other provisions of this chapter, any hearing held under this chapter shall be
conducted in accordance with [the APA]"); 5 U.S.C. § 554(c)(2). We do not
lightly presume exemptions to the APA, Brownell v. Tom We Shung, 352 U.S.
180, 185, 77 S.Ct. 252, 256, 1 L.Ed.2d 225 (1956), and we do not think § 923
by its terms exempts the LHWCA from § 7(c).

6

The Department's argument under the BLBA fares no better. The BLBA also
incorporates the APA (by incorporating parts of the LHWCA), but it does so
"except as otherwise provided . . . by regulations of the Secretary." 30 U.S.C. §
932(a). The Department argues that the following BLBA regulation so
provides: "In enacting [the BLBA], Congress intended that claimants be given
the benefit of all reasonable doubt as to the existence of total or partial disability
or death due to pneumoconiosis." 20 CFR § 718.3(c) (1993). But we do not
think this regulation can fairly be read as authorizing the true doubt rule and
rejecting the APA's burden of proof provision. Not only does the regulation fail
to mention the true doubt rule or § 7(c), it does not even mention the concept of
burden shifting or burdens of proof. Accordingly and assuming arguendo that
the Department has the authority to displace § 7(c) through regulation — this
ambiguous regulation does not overcome the presumption that these
adjudications under the BLBA are subject to § 7(c)'s burden of proof provision.
III

7

We turn now to the meaning of "burden of proof" as used in § 7(c).
Respondents contend that the Court of Appeals was correct in reading "burden
of proof" to include the burden of persuasion. The Department disagrees,
contending that "burden of proof" imposes only the burden of production (i.e.,
the burden of going forward with evidence). The case turns on this dispute, for
if respondents are correct, the true doubt rule must fall: because the true doubt
rule places the burden of persuasion on the party opposing the benefits award,
it would violate § 7(c)'s requirement that the burden of persuasion rest with the
party seeking the award.
A.

8

Because the term "burden of proof" is nowhere defined in the APA, our task is
to construe it in accord with its ordinary or natural meaning. Smith v. United
States, 508 U.S. ----, ----, 113 S.Ct. 2050, 2055, 124 L.Ed.2d 138 (1993). It is
easier to state this task than to accomplish it, for the meaning of words may
change over time, and many words have several meanings even at a fixed point
in time. Victor v. Nebraska, 511 U.S. ----, ----, 114 S.Ct. 1239, ----, 127 L.Ed.2d
583 (1994); see generally Cunningham, Levi, Green & Kaplan, Plain Meaning
and Hard Cases, 103 Yale L.J. 1561 (1994). Here we must seek to ascertain the
ordinary meaning of "burden of proof" in 1946, the year the APA was enacted.

9

For many years the term "burden of proof" was ambiguous, because the term
was used to describe two distinct concepts. Burden of proof was frequently
used to refer to what we now call the burden of persuasion — the notion that if
the evidence is evenly balanced, the party that bears the burden of persuasion
must lose. But it was also used to refer to what we now call the burden of
production — a party's obligation to come forward with evidence to support its
claim. See J. Thayer, Evidence at the Common Law 355-384 (1898) (detailing
various uses of the term burden of proof among 19th-century English and
American courts).

10

The Supreme Judicial Court of Massachusetts was the leading proponent of the
view that burden of proof should be limited to burden of persuasion. In what
became an oft-cited case, Chief Justice Lemuel Shaw attempted to distinguish
the burden of proof from the burden of producing evidence. Powers v. Russell,
30 Mass. 69 (1833). According to the Massachusetts court, "the party whose
case requires the proof of [a] fact, has all along the burden of proof." Id., at 76.
Though the burden of proving the fact remains where it started, once the party
with this burden establishes a prima facie case, the burden to "produce
evidence" shifts. Ibid. The only time the burden of proof — as opposed to the
burden to produce evidence — might shift is in the case of affirmative defenses.
Id., at 77. In the century after Powers, the Supreme Judicial Court of
Massachusetts continued to carefully distinguish between the burden of proof
and the burden of production. See, e.g., Smith v. Hill, 232 Mass. 188, 122 N.E.
310 (1919).

11

Despite the efforts of the Massachusetts court, the dual use of the term
continued throughout the late 19th and early 20th centuries. See 4 J. Wigmore,
Evidence § 2486-2487, pp. 3524-3529 (1905); Thayer, supra, at 355; W. Elliott,
Law of Evidence § 129, pp. 184-185 (1904); Chamberlayne, Modern Law of
Evidence § 936, pp. 1096-1098 (1911). The ambiguity confounded the treatise
writers, who despaired over the "lamentable ambiguity of phrase and confusion
of terminology under which our law has so long suffered." Wigmore, supra, at
3521-3522. The writers praised the "clear-thinking" efforts of courts like the
Supreme Judicial Court of Massachusetts, Chamberlayne, supra, at 1097, n. 3,
and agreed that the legal profession should endeavor to clarify one of its most
basic terms. According to Thayer, "[i]t seems impossible to approve a
continuance of the present state of things, under which such different ideas, of
great practical importance and of frequent application, are indicated by this
single ambiguous expression." Thayer, supra, at 384-385; see also
Chamberlayne, supra, at 1098. To remedy this problem, writers suggested that
the term burden of proof be limited to the concept of burden of persuasion,
while some other term — such as burden of proceeding or burden of evidence
— be used to refer to the concept of burden of production. Chamberlayne,
supra, at § 936; Elliott, supra, at 185, n. 3. Despite the efforts at clarification,
however, a dwindling number of courts continued to obscure the distinction.
See Annot., 2 A.L.R. 1672 (1919) (noting that some courts still fail to properly
distinguish "between the burden of proof and the duty of going forward with
the evidence").

12

This Court tried to eliminate the ambiguity in the term burden of proof when it
adopted the Massachusetts approach. Hill v. Smith, 260 U.S. 592, 43 S.Ct. 219,
67 L.Ed. 419 (1923). Justice Holmes wrote for a unanimous Court that "it will
not be necessary to repeat the distinction, familiar in Massachusetts since the
time of Chief Justice Shaw, [Powers, supra], and elaborated in the opinion
below, between the burden of proof and the necessity of producing evidence to
meet that already produced. The distinction is now very generally accepted,
although often blurred by careless speech." Id., at 594, 43 S.Ct. at 219.

13

In the two decades after Hill, our opinions consistently distinguished between
burden of proof, which we defined as burden of persuasion, and an alternative
concept, which we increasingly referred to as the burden of production or the
burden of going forward with the evidence. See, e.g., Brosnan v. Brosnan, 263
U.S. 345, 349, 44 S.Ct. 117, 118, 68 L.Ed. 332 (1923) (imposition of burden of
proof imposes the burden of persuasion, not simply the burden of establishing a
prima facie case); Radio Corp. of America v. Radio Engineering Laboratories,
Inc., 293 U.S. 1, 7-8, 55 S.Ct. 928, 930-931, 79 L.Ed. 163 (1934) (party who
bears the burden of proof "bears a heavy burden of persuasion"); Commercial
Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 111, 62 S.Ct.
156, 161, 86 L.Ed. 89 (1941) (party with the burden of proof bears the "burden
of persuasion," though the opposing party may bear a burden to "go forward
with evidence"); Webre Steib Co. v. Commissioner, 324 U.S. 164, 171, 65 S.Ct.
578, 582, 89 L.Ed. 819 (1945) (claimant bears a "burden of going forward with
evidence . . . as well as the burden of proof") (emphasis added). During this
period the Courts of Appeals also limited the meaning of burden of proof to
burden of persuasion, and explicitly distinguished this concept from the burden
of production.***

14

The emerging consensus on a definition of burden of proof was reflected in the
evidence treatises of the 1930's and 1940's. "The burden of proof is the
obligation which rests on one of the parties to an action to persuade the trier of
the facts, generally the jury, of the truth of a proposition which he has
affirmatively asserted by the pleadings." W. Richardson, Evidence 143 (6th ed.
1944); see also 1 B. Jones, Evidence in Civil Cases 310 (4th ed. 1938) ("The
modern authorities are substantially agreed that, in its strict primary sense,
'burden of proof' signifies the duty or obligation of establishing, in the mind of
the trier of facts, conviction on the ultimate issue"); J. McKelvey, Evidence 64
(4th ed. 1932) ("[T]he proper meaning of [burden of proof]" is "the duty of the
person alleging the case to prove it," rather than "the duty of the one party or
the other to introduce evidence").

15

We interpret Congress' use of the term "burden of proof" in light of this history,
and presume Congress intended the phrase to have the meaning generally
accepted in the legal community at the time of enactment. Holmes v. Securities
Investor Protection Corp., 503 U.S. ----, ----, 112 S.Ct. 1311, ----, 117 L.Ed.2d
532 (1992); Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 325,
112 L.Ed.2d 275 (1990); Cannon v. University of Chicago, 441 U.S. 677, 696698, 99 S.Ct. 1946, 1957-1958, 60 L.Ed.2d 560 (1979). These principles lead
us to conclude that the drafters of the APA used the term "burden of proof" to
mean the burden of persuasion. As we have explained, though the term had
once been ambiguous, that ambiguity had largely been eliminated by the early
twentieth century. After Hill, courts and commentators almost unanimously
agreed that the definition was settled. And Congress indicated that it shared
this settled understanding, when in the Communications Act of 1934, it
explicitly distinguished between the burden of proof and the burden of
production. 47 U.S.C. §§ 309(e) and 312(d) (a party has both the "burden of
proceeding with the introduction of evidence and the burden of proof").
Accordingly, we conclude that as of 1946 the ordinary meaning of burden of
proof was burden of persuasion, and we understand the APA's unadorned
reference to "burden of proof" to refer to the burden of persuasion.
B

16

We recognize that we have previously asserted the contrary conclusion as to the
meaning of burden of proof in § 7(c) of the APA. In NLRB v. Transportation
Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), we
reviewed the National Labor Relations Board's (NLRB) conclusion that the
employer had discharged the employee because of the employee's protected
union activity. In such cases the NLRB employed a burden shifting formula
typical in dual motive cases: the employee had the burden of persuading the
NLRB that antiunion animus contributed to the employer's firing decision; the
burden then shifted to the employer to establish as an affirmative defense that it
would have fired the employee for permissible reasons even if the employee
had not been involved in union activity. Id., at 401-402, 103 S.Ct., at 2474. The
employer claimed that the NLRB's burden shifting formula was inconsistent
with the National Labor Relations Act (NLRA), but we upheld it as a
reasonable construction of the NLRA. Id., at 402-403, 103 S.Ct., at 2474-2475.

17

The employer in Transportation Management argued that the NLRB's
approach violated § 7(c)'s burden of proof provision, which the employer read
as imposing the burden of persuasion on the employee. In a footnote, we
summarily rejected this argument, concluding that "[§ 7(c) ] . . . determines
only the burden of going forward, not the burden of persuasion. Environmental
Defense Fund, Inc. v. EPA, [548 F.2d 998, 1004, 1013-1015 (CADC 1976) ]."
462 U.S., at 404, n. 7, 103 S.Ct., at 2475, n. 7. In light of our discussion in Part
II A above, we do not think our cursory conclusion in the Transportation
Management footnote withstands scrutiny. The central issue in Transportation
Management was whether the NLRB's burden shifting approach was consistent
with the NLRA. The parties and the amici in Transportation Management
treated the APA argument as an afterthought, devoting only one or two
sentences to the question. None of the briefs in the case attempted to explain
the ordinary meaning of the term. Transportation Management's cursory
answer to an ancillary and largely unbriefed question does not warrant the same
level of deference we typically give our precedents.

18

Moreover, Transportation Management reached its conclusion without
referring to Steadman v. SEC, 450 U.S. 91, 101 S.Ct. 999, 67 L.Ed.2d 69
(1981), our principal decision interpreting the meaning of § 7(c). In Steadman
we considered what standard of proof § 7(c) required, and we held that the
proponent of a rule or order under § 7(c) had to meet its burden by a
preponderance of the evidence, not by clear and convincing evidence. Though
we did not explicitly state that § 7(c) imposes the burden of persuasion on the
party seeking the rule or order, our reasoning strongly implied that this must be
so. We assumed that burden of proof meant burden of persuasion when we said
that we had to decide "the degree of proof which must be adduced by the
proponent of a rule or order to carry its burden of persuasion in an
administrative proceeding." Id., at 95, 101 S.Ct., at 1004 (emphasis added).
More important, our holding that the party with the burden of proof must prove
its case by a preponderance only makes sense if the burden of proof means the
burden of persuasion. A standard of proof, such as preponderance of the
evidence, can apply only to a burden of persuasion, not to a burden of
production.

19

We do not slight the importance of adhering to precedent, particularly in a case
involving statutory interpretation. But here our precedents are in tension, and
we think our approach in Steadman makes more sense than does the
Transportation Management footnote. And although we reject Transportation
Management's reading of § 7(c), the holding in that case remains intact. The
NLRB's approach in Transportation Management is consistent with § 7(c)
because the NLRB first required the employee to persuade it that antiunion
sentiment contributed to the employer's decision. Only then did the NLRB
place the burden of persuasion on the employer as to its affirmative defense.

C
20

In addition to the Transportation Management footnote, the Department relies
on the Senate and House Judiciary Committee Reports on the APA to support
its claim that burden of proof means only burden of production. See
Environmental Defense Fund v. EPA, 548 F.2d, at 1014-1015 (accepting this
argument), cited in Transportation Management, supra, at 404, n. 7, 103 S.Ct.,
at 2475, n. 7. We find this legislative history unavailing. The Senate Judiciary
Committee Report on the APA states as follows:

21

"That the proponent of a rule or order has the burden of proof means not only
that the party initiating the proceeding has the general burden of coming
forward with a prima facie case but that other parties, who are proponents of
some different result, also for that purpose have a burden to maintain. Similarly
the requirement that no sanction be imposed or rule or order be issued except
upon evidence of the kind specified means that the proponents of a denial of
relief must sustain such denial by that kind of evidence. For example, credible
and credited evidence submitted by the applicant for a license may not be
ignored except upon the requisite kind and quality of contrary evidence. No
agency is authorized to stand mute and arbitrarily disbelieve credible evidence.
Except as applicants for a license or other privilege may be required to come
forward with a prima facie showing, no agency is entitled to presume that the
conduct of any person or status of any enterprise is unlawful or improper."
S.Rep. No. 752, 79th Cong., 1st Sess., 22 (1945).

22

The House Judiciary Committee Report contains identical language, along with
the following:

23

"In other words, this section means that every proponent of a rule or order or
the denial thereof has the burden of coming forward with sufficient evidence
therefor; and in determining applications for licenses or other relief any fact,
conduct, or status so shown by credible and credited evidence must be accepted
as true except as the contrary has been shown or such evidence has been
rebutted or impeached by duly credited evidence or by facts officially noticed
and stated." H.R.Rep. No. 1980, 79th Cong., 2d Sess., 36 (1946), U.S.Code
Cong.Serv. 1946, 1195.

24

The Department argues that this legislative history indicates congressional
intent to impose a burden of production on the proponent. But even if that is so,
it does not mean that § 7(c) is concerned only with imposing a burden of
production. That Congress intended to impose a burden of production does not
mean that Congress did not also intend to impose a burden of persuasion.

25

Moreover, these passages are subject to a natural interpretation compatible with
congressional intent to impose a burden of persuasion on the party seeking an
order. The primary purpose of these passages is not to define or allocate the
burden of proof. The quoted passages are primarily concerned with the burden
placed on the opponent in administrative hearings ("other parties . . . have a
burden to maintain"), particularly where the opponent is the government. The
Committee appeared concerned with those cases in which the "proponent"
seeks a license or other privilege from the government, and in such cases did
not want to allow the agency "to stand mute and arbitrarily disbelieve credible
evidence." The Report makes clear that once the licensee establishes a prima
facie case, the burden shifts to the government to rebut it. This is perfectly
compatible with a rule placing the burden of persuasion on the applicant,
because when the party with the burden of persuasion establishes a prima facie
case supported by "credible and credited evidence," it must either be rebutted or
accepted as true.

26

The legislative history the Department relies on is imprecise and only
marginally relevant. Congress chose to use the term "burden of proof" in the
text of the statute, and given the substantial evidence that the ordinary meaning
of burden of proof was burden of persuasion, this legislative history cannot
carry the day.
D

27

In part due to Congress's recognition that claims such as those involved here
would be difficult to prove, claimants in adjudications under these statutes
benefit from certain statutory presumptions easing their burden. See 33 U.S.C. §
920; 30 U.S.C. § 921(c); Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S.Ct.
190, 193, 80 L.Ed. 229 (1935). Similarly, the Department's solicitude for
benefits claimants is reflected in the regulations adopting additional
presumptions. See 20 CFR §§ 718.301-718.306 (1993); Mullins Coal, 484 U.S.,
at 158, 108 S.Ct., at 439. But with the true doubt rule the Department attempts
to go one step further. In so doing, it runs afoul of the APA, a statute designed
"to introduce greater uniformity of procedure and standardization of
administrative practice among the diverse agencies whose customs had
departed widely from each other." Wong Yang Sung v. McGrath, 339 U.S. 33,
41, 70 S.Ct. 445, 450, 94 L.Ed. 616 (1950). That concern is directly implicated
here, for under the Department's reading each agency would be free to decide
who shall bear the burden of persuasion. Accordingly, the Department cannot
allocate the burden of persuasion in a manner that conflicts with the APA.
IV

28

Under the Department's true doubt rule, when the evidence is evenly balanced
the claimant wins. Under § 7(c), however, when the evidence is evenly
balanced, the benefits claimant must lose. Accordingly, we hold that the true
doubt rule violates § 7(c) of the APA.

29

Because we decide this case on the basis of § 7(c), we need not address the
Court of Appeals' holding in Greenwich Collieries that the true doubt rule
conflicts with § 718.403 or with Mullins Coal, 484 U.S. 135, 108 S.Ct. 427, 98
L.Ed.2d 450.

30

Affirmed.

31

Justice SOUTER, with whom Justice BLACKMUN and Justice STEVENS
join, dissenting.

32

For more than 50 years, in adjudicating benefits claims under the Longshore
and Harbor Workers' Compensation Act (LHWCA), 44 Stat. 1424, as amended,
33 U.S.C. § 901 et seq., and for more than 15 years under the Black Lung
Benefits Act (BLBA), 83 Stat. 792, as amended, 30 U.S.C. § 901 et seq. (1988
ed. and Supp. IV), the Department of Labor has applied the "true doubt" rule,
providing that when the evidence submitted by a claimant and by a party
opposing the award is of equal weight, the claimant wins. The rule thus places
the risk of nonpersuasion on the opponent of the benefits claim. Today, the
Court strikes the rule down as conflicting with § 7(c) of the Administrative
Procedure Act (APA), 5 U.S.C. § 556(d), passed by Congress in 1946. I
respectfully dissent.

33

* So far as relevant, § 7(c) of the APA states that

34

"[e]xcept as otherwise provided by statute, the proponent of a rule or order has
the burden of proof. Any oral or documentary evidence may be received, but
the agency as a matter of policy shall provide for the exclusion of irrelevant,
immaterial, or unduly repetitious evidence. A sanction may not be imposed or
rule or order issued except on consideration of the whole record or those parts
thereof cited by a party and supported by and in accordance with the reliable,
probative, and substantial evidence." 5 U.S.C. § 556(d).

35

The majority's holding that "burden of proof" in the first sentence of this
provision means "burden of persuasion" surely carries the force of the preferred
meaning of the term in today's general usage, as the Court's opinion
demonstrates. But we are concerned here not with the commonly preferred
meaning of the term today, but with its meaning as understood and intended by
Congress in enacting § 7(c) of the APA in 1946. That is not a matter about
which preference has been constant, or Congress silent, or even a subject of first
impression for this Court.

36

The phrase "burden of proof" has been used in two ways, to mean either the
burden of persuasion (the risk of nonpersuasion), see 9 J. Wigmore, Evidence §
2486 (J. Chadbourn rev. ed. 1981) (Wigmore), or the burden of production (of
going forward with evidence), see id., § 2487. The latter sense arose from the
standard common law rule that in order "to keep the jury within the bounds of
reasonable action," the party bearing the burden of production had to put forth
enough evidence to make a prima facie case in order to get to the jury. Ibid. At
the turn of the century, Thayer noted that burden of proof, in the sense of
"going forward with argument or evidence," is "the meaning of the term in
common speech . . . [and] also a familiar legal usage. . . ." J. Thayer, A
Preliminary Treatise on Evidence at the Common Law 385-386 (1898). Thayer
described Chief Justice Shaw's unsuccessful attempts to restrict the
Massachusetts courts to the other (burden of persuasion) meaning of the phrase,
id., at 355-357, 385-387, and n. 1, and argued that since the "widest legal
usage" of the phrase and "the use of the phrase in ordinary discourse" was to
mean burden of production, burden of proof should only be used in that sense,
see Thayer, The Burden of Proof, 4 Harv.L.Rev. 45, 69 (1890).

37

Although the Court works hard to show that the phrase had acquired a settled
meaning in the alternative sense by the time the APA was passed in 1946, there
is good evidence that the courts were still using the term either way and that
Congress followed Thayer. Indeed, just nine years after Hill v. Smith, 260 U.S.
592, 43 S.Ct. 219, 67 L.Ed. 419 (1923), in which Justice Holmes is said to have
firmed up the use of "burden of proof" to mean burden of persuasion, this Court
reverted to using the phrase in its burden of production sense instead.1 See
Heiner v. Donnan, 285 U.S. 312, 329, 52 S.Ct. 358, 362, 76 L.Ed. 772 (1932)
("A rebuttable [prima facie] presumption clearly is a rule of evidence which has
the effect of shifting the burden of proof") (citing Mobile, J. & K.C.R. Co. v.
Turnipseed, 219 U.S. 35, 43, 31 S.Ct. 136, 138, 55 L.Ed. 78 (1910) (stating that
"[t]he only legal effect of this [presumption] is to cast upon [defendant] the
duty of producing some evidence to the contrary")). In such usage Heiner
appears in line with Hawes v. Georgia, 258 U.S. 1, 42 S.Ct. 204, 66 L.Ed. 431
(1922) (upholding rebuttable presumption casting "burden of proof" on
defendant in criminal case); see Tot v. United States, 319 U.S. 463, 470-471, 63
S.Ct. 1241, 1246, 87 L.Ed. 1519 (1943) (describing Hawes as involving
statutory provision that permissibly "shift[ed] the burden of proof" once a prima
facie case was made by prosecution). And courts just three years before the
passage of the APA held that burden of proof was at least sometimes used by
Congress to mean "burden of going forward with the evidence," and not burden
of persuasion. Northwestern Elec. Co. v. Federal Power Comm'n, 134 F.2d
740, 743 (CA9 1943) (interpreting "burden of proof" in Federal Power Act, 16
U.S.C. § 825(a)), aff'd, 321 U.S. 119, 64 S.Ct. 451, 88 L.Ed. 596 (1944).

38

Contrary to the Court's understanding, commentators did not think the
ambiguity of the phrase had disappeared before passage of the APA, and, at the
time, some even thought it unsettled whether burden of persuasion or of going
forward with the evidence was the primary meaning of the phrase. As one
commentator (relied on by the majority here) explained in 1938, although in its
"strict primary sense, 'burden of proof' signifies" burden of persuasion, "[i]n its
secondary sense, the expression 'burden of proof' signifies the duty that rests
upon a party of going forward with the evidence at any given stage of the case
— although eminent authority holds that this is, or should be, its primary
sense." 1 B. Jones, Law of Evidence in Civil Cases § 176, p. 310 (4th ed. 1938)
(citing Thayer). He noted, "The expression 'burden of proof' has not a fixed and
unvarying meaning and application. On the contrary, it is used, at times
indiscriminately, to signify one or both of two distinct and separate ideas.
Courts and commentators have striven to correct this variable usage and bring
clarity and uniformity to the subject, but without noticeable success." Id., § 176,
p. 309 (footnote omitted). That commentary retained substantially the same
description 20 years later, and thereafter, see 1 B. Jones, Law of Evidence, Civil
and Criminal, § 204, pp. 361-363 (5th ed. 1958); 1 S. Gard, Jones on Evidence
§ 5:1, pp. 519-520 (6th ed. 1972). Other commentators noted the persistent
confusion of the terms in the 1940's. See, e.g., W. Richardson, Law of Evidence
§ 172 (6th ed. 1944) (" 'burden of proof' is frequently misused by our courts");
J. Maguire, Evidence, Common Sense and Common Law 175 (1947) ("Under
our law the term burden of proof has been used to express two rather different
ideas, and as might be expected this usage has led to a jumble"). Further, at the
time of the APA's passage, the American Law Institute, Model Code of
Evidence (1942) noted both meanings, see 9 Wigmore, § 2485, p. 284,
comments. Thus, courts and commentators continued to note the two meanings
both before and long after the enactment of the APA, and use of "burden of
proof" in either of its senses continued to create "the lamentable ambiguity of
phrase and confusion of terminology under which our law has so long suffered,"
9 Wigmore § 2485.

39

Although standard usage had not made a choice of meanings by 1946, Congress
did make one, and the meaning it chose for the phrase as used in § 7(c) was
"burden of production." In extensive reports on the pending legislation, both the
Senate and the House explained the meaning of § 7(c):

40

"That the proponent of a rule or order has the burden of proof means not only
that the party initiating the proceeding has the general burden of coming
forward with a prima facie case but that other parties, who are proponents of
some different result, also for that purpose have a burden to maintain. Similarly
the requirement that no sanction be imposed or rule or order be issued except
upon evidence of the kind specified means that the proponents of a denial of
relief must sustain such denial by that kind of evidence. . . ." S.Rep. No. 752,
79th Cong., 1st Sess., 22 (1945), reprinted in Legislative History of the
Administrative Procedure Act, S.Doc. No. 248, 79th Cong., 2d Sess., 208
(1946) (hereinafter Leg.Hist.); H.R.Rep. No. 1980, 79th Cong., 2d Sess. 36-37
(1946), Leg.Hist. 270-271.

41

The House Report added that,

42

"[i]n other words, this section means that every proponent of a rule or order or
the denial thereof has the burden of coming forward with sufficient evidence
therefor. . . .

43

. . . . .

44

"The first and second sentences of the section therefore mean that, where a
party having the burden of proceeding has come forward with a prima facie and
substantial case, he will prevail unless his evidence is discredited or rebutted."
Id., at 36-37, Leg.Hist. 270-271.2

45

Because Congress stated that "burden of proof means" a "burden of coming
forward," and further explained that the burden could be shouldered by both
proponents and opponents of a rule or order, the strong probability is that
Congress meant to use "burden of proof" to mean burden of coming forward
and not burden of persuasion, for a burden of persuasion cannot simultaneously
rest on both parties. See generally, 9 Wigmore § 2489. The commentators
agree. "The legislative history suggests that the term 'burden of proof' was
intended to denote the 'burden of going forward.' " 1 C. Koch, Administrative
Law and Practice, § 6.42, p. 486 (1985); "The legislative history of the A.P.A.
burden of proof provision states that the party initiating the proceeding has, at a
minimum, the burden of establishing a prima facie case, but a burden of proof
may also rest on other parties seeking a different decision by the agency." 4 J.
Stein, G. Mitchell, & B. Mezines, Administrative Law § 24.02, pp. 24-25
(1994); accord, 3 K. Davis, Administrative Law Treatise § 16.9, pp. 257-258
(2d ed. 1980) (citing a lower court's "analysis of the Senate and House reports
on the APA and the Attorney General's Manual").

46

The congressional choice of the burden of production meaning was in fact
understood from the first and was the subject of some lament by commentators,
who criticized the first sentence of § 7(c) (already in its current formulation as
"the proponent of a rule or order has the burden of proof") as unhelpful:

47

"The first sentence is confusing, and is at best unimportant. . . . For example,
where a hearing is called to determine whether or not a license application
should be granted, the 'proponent' of the 'order' would seem to be the applicant
if the order turns out to be an order granting the application, or the agency if the
order turns out to be an order denying the application. We conclude that this
sentence should be eliminated from the bill." Committee on Administrative
Law of New York State Bar Assn. and Association of the Bar of the City of
New York, Joint Report on Proposed Federal Administrative Procedure Act 16
(Dec. 26, 1945).

48

It was certainly not their understanding that this provision established a uniform
burden of persuasion.3
II

49

Until today, this Court's reading of § 7(c) has been consonant with the
congressional understanding. In NLRB v. Transportation Management Corp.,
462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), this Court considered the
phrase "burden of proof" as used in that section and rejected the position the
Court now takes. In Transportation Management, the Court upheld the rule of
the National Labor Relations Board (Board), that its General Counsel has the
burden of persuading the Board that antiunion animus contributed to an
employer's decision to fire the employee, and that the burden of persuasion then
shifts to the employer to prove that the employee would have been fired even
without involvement in protected union activities. Confronting the employer's
argument that § 7(c) barred the Board from ever shifting the burden of
persuasion to the employer, the Court rejected it, on the ground that § 7(c)
"determines only the burden of going forward, not the burden of persuasion,"
Transportation Management, supra, at 404, n. 7, 103 S.Ct., at 2475, n. 7 (citing
Environmental Defense Fund, Inc. v. EPA, 548 F.2d 998, 1004, 1013-1015
(CADC 1976) (Leventhal, J.)).

50

Today's abandonment of Transportation Management's holding is not only a
mistake, but one that puts the Court at odds with that fundamental principle of
precedent that "[c]onsiderations of stare decisis have special force in the area of
statutory interpretation, for . . . Congress remains free to alter what we have
done." Patterson v. McLean Credit Union, 491 U.S. 164, 172-173, 109 S.Ct.
2363, 2370, 105 L.Ed.2d 132 (1989); accord, Square D Co. v. Niagara Frontier
Tariff Bureau, Inc., 476 U.S. 409, 424, 106 S.Ct. 1922, 1930, 90 L.Ed.2d 413
(1986); Illinois Brick Co. v. Illinois, 431 U.S. 720, 736, 97 S.Ct. 2061, 2069, 52
L.Ed.2d 707 (1977).4 Even on the assumption that the conclusion reached in
Transportation Management was debatable at the time the case was decided, it
was undoubtedly a reasonable construction of a phrase that (as shown above)
was ambiguous in the general usage of 1946, and in the 11 years since the
construction was settled by Transportation Management, Congress has not seen
fit to disturb it by amending § 7(c). Compare, e.g., Johnson v. Transportation
Agency, Santa Clara County, 480 U.S. 616, 629-630, n. 7, 107 S.Ct. 1442,
1450, n. 7, 94 L.Ed.2d 615 (1987), with Califano v. Sanders, 430 U.S. 99, 105107, 97 S.Ct. 980, 984-985, 51 L.Ed.2d 192 (1977). The settled construction
should therefore stand.

51

This Court, like the court below, tries to avoid Transportation Management by
implying that the Court's definition of burden of proof in § 7(c) as burden of
production was inessential to its holding, since the Court only allowed the
burden of persuasion to be placed on the employer after the NLRB had met its
burden of persuasion on the elements of an unfair labor practice. 992 F.2d
1277, 1281-1284 (CA3 1993); cf. ante, at ____ ("the holding in that case
remains intact"). The problem with this reading of Transportation
Management, however, is that it is not at all what this Court said, or could have
said. The reasoning chosen by the Court to justify its conclusion was that
burden of proof in § 7(c) means burden of production, and thus is no
impediment to the Board's rule. And in so explaining, the Court cited the
leading case from the Court of Appeals for the District of Columbia Circuit that
had held "proof" synonymous with "production" in the text under examination.
Environmental Defense Fund, supra.

52

The Court also reasons that the burden of proof holding of Transportation
Management should be abandoned as conflicting with Steadman v. SEC, 450
U.S. 91, 101 S.Ct. 999, 67 L.Ed.2d 69 (1981), a decision announced just two
Terms prior to Transportation Management. But Steadman and Transportation
Management are simply not inconsistent with each other. Indeed, neither the
parties to Transportation Management nor the Court itself saw Steadman as
even relevant to the questions presented in Transportation Management. In
Steadman, a mutual funds manager argued that in a disciplinary proceeding to
determine whether he had violated the federal securities laws, the Securities
and Exchange Commission had no choice but to use the clear-and-convincing
standard of proof, rather than the standard of preponderance of the evidence.
Steadman read the third sentence of § 7(c) (a rule or order must be "supported
by and in accordance with the reliable, probative, and substantial evidence"), to
mean that preponderance of the evidence, not the clear-and-convincing
standard, applies in adjudications under the APA. Steadman thus holds that the
party with the burden of persuasion must satisfy it by a preponderance, but does
not purport to define "burden of proof" under the APA or to decide who bears
the burden of persuasion, since it was uncontested in that case that the burden
of persuasion was on the Government in a securities disciplinary proceeding.
Transportation Management, on the other hand, holds that "burden of proof" in
§ 7(c) means burden of production. The question left open by each decision is
who bears the burden of persuasion. As to that, § 7(c) is silent.

53

It is also worth remarking that Transportation Management came as no
surprise when it was decided, other federal courts having anticipated this
Court's reading of the § 7(c) burden as one of production. See, e.g.,
Environmental Defense Fund, Inc. v. EPA, 548 F.2d 998, 1013 (CADC 1976) ("
'burden of proof' [§ 7(c) ] casts upon the 'proponent' is the burden of coming
forward with proof, and not the ultimate burden of persuasion"); Old Ben Coal
Corp. v. Interior Bd. of Mine Operations Appeals, United States Dept. of
Interior, 523 F.2d 25, 40 (CA7 1975) ("burden of putting forth a prima facie
case"); Maine v. United States Dept. of Labor, 669 F.2d 827, 829 (CA1 1982)
(burden "of producing sufficient evidence to make out a prima facie case"); but
cf. Kerner v. Flemming, 283 F.2d 916, 921-922, and n. 8 (CA2 1960)
(assuming arguendo the term meant burden of persuasion). And at least since
Transportation Management, every Court of Appeals (except the one below in
this case) to have reached the issue has understood that the question was firmly
settled by Transportation Management and its predecessor in the District of
Columbia Circuit, Environmental Defense Fund. See, e.g., Freeman United
Coal Min. Co. v. Office of Workers' Compensation Programs, 988 F.2d 706,
711 (CA7 1993) ("The Supreme Court has resolved this ambiguity [in § 7(c) ].
'Burden of proof' as that term is used in the APA means the burden of going
forward, not the burden of persuasion"); Hazardous Waste Treatment Council
v. EPA, 886 F.2d 355, 366 (CADC 1989) (per curiam) ("initial burden of going
forward with a prima facie case"), cert. denied, 498 U.S. 849, 111 S.Ct. 139,

112 L.Ed.2d 106 (1990); Merritt v. United States, 960 F.2d 15, 18 (CA2 1992)
("refers only to the burden of going forward with evidence, not the burden of
persuasion"); Bosma v. United States Dept. of Agriculture, 754 F.2d 804, 810
(CA9 1984) ("burden of going forward with evidence"); Alameda Cty. Training
and Employment Bd./Associated Community Action Program v. Donovan, 743
F.2d 1267, 1269 (CA9 1984) ("merely places the burden of production on
[proponent], not the ultimate burden of persuasion"); Dazzio v. FDIC, 970 F.2d
71, 77 (CA5 1992) ("refers only to the burden of going forward with evidence,
not the ultimate burden of persuasion"); Skukan v. Consolidation Coal Co., 993
F.2d 1228, 1236-1238 (CA6 1993) ("burden of production"). Moreover, the
lower courts' views were in accord with the commentators. See, e.g., 3 K.
Davis, Administrative Law Treatise § 16.9, p. 257 (burden of proof in § 7(c)
means only "burden of going forward" and not burden of persuasion) (citing
Environmental Defense Fund, supra); 1 C. Koch, Administrative Law and
Practice § 6.42, p. 245 (1994 Supplement) ("The phrase 'burden of proof' as
used in the APA § 556(d) means the burden of going forward with evidence.
That phrase in the context of the APA does not mean the ultimate burden of
persuasion") (footnote omitted); 4 J. Stein, G. Mitchell, & B. Mezines,
Administrative Law § 24.02, p. 24-21, n. 3 (1994) (§ 7(c) "only directs that the
[proponent] has the burden of production"); G. Edles & J. Nelson, Federal
Regulatory Process § 6.7, pp. 151-152 (2d ed. 1992) ("the burden of proof
under the APA refers only to the burden of going forward with evidence") (each
citing Transportation Management, 462 U.S., at 403, n. 7, 103 S.Ct., at 2475,
n. 7).
54

Nor is there any argument that the vitality has gone out of Transportation
Management over the last 11 years. This Court, indeed, has cited the case for
the very proposition that the Court now repudiates, in the course of explaining
that we ourselves had used the term "burden of proof" in Title VII suits to mean
burden of production, not burden of persuasion:

55

"[T]o the extent that those cases speak of an employer's 'burden of proof' with
respect to a legitimate business justification defense . . . they should have been
understood to mean an employer's production — but not persuasion — burden.
Cf., e.g., NLRB v. Transportation Management Corp., 462 U.S. 393, 404, n. 7
[103 S.Ct., at 2475, n. 7] (1983)." Ward's Cove Packing Co. v. Atonio, 490 U.S.
642, 660, 109 S.Ct. 2115, 2126, 104 L.Ed.2d 733 (1989).

56

If the Ward's Cove Court could rely on Transportation Management to hold
that in innumerable Title VII disparate-impact cases over many years we (and
the lower courts) had used the term "burden of proof" to mean only "burden of
production" it is hard to place much weight on the majority's reference to a
consistent practice to the contrary since 1923.

57

Today's decision to repudiate Transportation Management is made more
regrettable by the fact that the Court's adherence to the case in Ward's Cove
came after the Court had been made aware of the role of the true doubt rule in
black lung litigation, which presupposed Transportation Management's reading
of § 7(c). In Mullins Coal Co. v. Director, Office of Workers' Compensation
Programs, Dept. of Labor, 484 U.S. 135, 108 S.Ct. 427, 98 L.Ed.2d 450
(1987), upholding the Secretary of Labor's interpretation of a BLBA interim
regulation about the prima facie standard for invoking a statutory presumption
of eligibility, this Court explicitly noted the operation of the true doubt rule
once both parties' evidence had been introduced and (as here) the presumption
had dropped out of the case. See id., at 144, n. 12, 108 S.Ct., at 432, n. 12 (true
doubt rule "ensures that the employer will win, on invocation or rebuttal, only
when its evidence is stronger than the claimant's"). We acknowledged the
Secretary's position that the BLBA "embodies the principle that doubt is to be
resolved in favor of the claimant, [which] plays an important role in claims
determinations . . .," id., at 156, n. 29, 108 S.Ct., at 439, n. 29 (quoting 43
Fed.Reg. 36826 (1978)), and that the Benefits Review Board "has consistently
upheld the principle that, where true doubt exists, that doubt shall be resolved in
favor of the claimant," 484 U.S., at 144, n. 12, 108 S.Ct., at 432, n. 12 (internal
quotation marks and citation omitted).

58

Had we, indeed, suggested otherwise, we would have been bucking the strong
tide that the Court turns back today, for the other federal courts have been
applying some form of the true doubt rule, either as judicial statutory
interpretation or as the agency's rule, in adjudicating claims after enactment of
the APA, as well as before it, for a good 50 years. See, e.g., Friend v. Britton,
220 F.2d 820, 821 (CADC 1955) ("Doubts, including the factual, are to be
resolved in favor of the employee or his dependent family"); Bath Iron Works
Corp. v. White, 584 F.2d 569, 574 (CA1 1978) ("the judicial policy [is] that 'all
doubtful questions are to be resolved in favor of the injured employee' . . . in
order to place the burden of possible error on the employer who is better able to
bear it"); Volpe v. Northeast Marine Terminals, 671 F.2d 697, 701 (CA2 1982)
("all doubtful questions of fact [are to] be resolved in favor of the injured
employee");5 Adkins v. Director, Office of Workers' Compensation Programs,
Dept. of Labor, 958 F.2d 49, 52, n. 4 (CA4 1992) ("Equally probative evidence
creates a 'true doubt,' which must be resolved in favor of the miner"); Greer v.
Director, Office of Workers' Compensation Programs, Dept. of Labor, 940 F.2d
88, 91 (CA4 1991) ("We have a true doubt. We give [claimant] the benefit of
that doubt"); Army & Air Force Exchange Serv. v. Greenwood, 585 F.2d 791,
794 (CA5 1978) ("the judicial policy has long been to resolve all doubts in
favor of the employee and his family"); Skukan v. Consolidation Coal Co.,
supra, at 1239 (CA6) ("true doubt rule is utilized to have equally probative but
conflicting evidence weighed in favor of the claimant"); Freeman United Coal
Min. Co. v. Office of Workers' Compensation Programs, 988 F.2d, at 711
(CA7) (applying true doubt rule as "judicial assignment of the burden of

persuasion to the employer"); Jones v. Director, Office of Workers'
Compensation Programs, Dept. of Labor, 977 F.2d 1106, 1109 (CA7 1992)
(true doubt rule places "burden of possible error on those best able to bear it,"
i.e., employers); Ware v. Director, Office of Workers' Compensation Programs,
Dept. of Labor, 814 F.2d 514, 517 (CA8 1987) ("any doubts should be resolved
in favor of the disabled miner"); Parsons Corp. of Cal. v. Director, Office of
Workers' Compensation Programs, Dept. of Labor, 619 F.2d 38, 41 (CA9
1980) ("statutory policy that all doubtful questions of fact be resolved in favor
of the injured employee"); Hansen v. Director, Office of Workers'
Compensation Programs, Dept. of Labor, 984 F.2d 364, 369 (CA10 1993) ("
'true doubt' rule applies where equally probative but contradictory medical
documentation exists"); Bosco v. Twin Pines Coal Co., 892 F.2d 1473, 1476
(CA10 1989) ("doubts should be resolved in favor of the disabled miner");
Stomps v. Director, Office of Workers' Compensation Programs, Dept. of
Labor, 816 F.2d 1533, 1534 (CA11 1987) (same); for a sampling of the preAPA cases, see, e.g., F.H. McGraw & Co v. Lowe, 145 F.2d 886, 887, n. 2, 888
(CA2 1944) (upholding agency policy that "doubtful questions incapable of
scientific resolution are to be resolved in favor of the workman" under
LHWCA); Southern S.S. Co. v. Norton, 101 F.2d 825, 827 (CA3 1939)
("doubts should be resolved in [claimant's] favor" under LHWCA); Southern
Pac. Co. v. Sheppeard, 112 F.2d 147, 148 (CA5 1940) ("where there is doubt it
should be resolved in favor of the injured employee or his family" under
LHWCA).
III
59

Because § 7(c) is silent on the burden of persuasion, the job of placing it is left
to the bounded discretion of the agencies, subject to judicial review, when
interpreting their organic statutes, by customary reference to statutory text,
congressional intent, experience, policy, and relevant evidentiary probabilities.
See 3 K. Davis, Administrative Law Treatise § 16.9, pp. 257-258 (2d ed.
1980).6 This is only to be expected, since the issue of who bears the risk of
nonpersuasion raises a traditional "question of policy and fairness based on
experience in . . . different situations." Keyes v. School Dist. No. 1, Denver,
Colo., 413 U.S. 189, 209, 93 S.Ct. 2686, 2698, 37 L.Ed.2d 548 (1973) (quoting
9 J. Wigmore, Evidence § 2486, p. 275 (3d ed. 1940)); accord, J. Strong,
McCormick on Evidence § 337, p. 427 (4th ed. 1992), not a matter readily
lumped in with the formalities of procedure. While the APA was meant to
provide for uniform procedures in administrative adjudications, it is
unremarkable that it stopped short of making a substantive policy choice that in
every formal hearing the burden of persuasion must rest on one party or the
other.

60

Nor, apart from § 7(c), are the choices made under the statutes in question here
vulnerable on judicial scrutiny. In LHWCA cases over the last 50 years, the
assignment to the employer of the risk of nonpersuasion can be seen as placing
it on "those best able to bear it," F.H. McGraw & Co., 145 F.2d, at 887, 888,
and as comporting with both the remedial nature of the Act, see Northeast
Marine Terminal Co. v. Caputo, 432 U.S. 249, 268, 97 S.Ct. 2348, 2359, 53
L.Ed.2d 320 (1977), and the dangerous nature of longshore work, see S.Rep.
No. 92-1125, p. 2 (1972), U.S.Code Cong. & Admin.News 1972, p. 4698. As to
the BLBA, there is no question about the consistency of congressional intent
with the recitation in the Secretary's regulation, 20 CFR § 718.3(c) (1993), that
"Congress intended that [BLBA] claimants be given the benefit of all
reasonable doubt as to the existence of total or partial disability or death due to
pneumoconiosis." As Congress explained, the BLBA "is intended to be a
remedial law. . . . In the absence of definitive medical conclusions there is a
clear need to resolve doubts in favor of the disabled miner or his survivors."
S.Rep. No. 92-743, p. 11 (1972), U.S.Code Cong. & Admin.News 1972, pp.
2305, 2315. The true doubt rule has been applied in these benefits adjudications
for more than 15 years, see, e.g., Black Lung — A Study in Occupational
Disease Compensation (1976), reprinted in Black Lung Benefits Reform Act,
1976: Hearings on H.R. 10760 and S. 3183 before the Subcommittee on Labor
of the Senate Committee on Labor and Public Welfare, 94th Cong., 2d Sess.,
459, 488-489 (1976) ("conflicts in the evidence are required to be resolved by
the adjudicator in favor of the claimant"); Provance v. United States Steel
Corp., 1 Black Lung Rep. 1-483, 485-486 (Ben.Rev.Bd.1978), and the
Secretary's true doubt rule fully comports with Congress's "expectation that the
Secretary of Labor will promulgate standards which give the benefit of any
doubt to the coal miner." S.Rep. No. 95-209, p. 13 (1977); see 43 Fed.Reg.
36826 (1978).

61

The court below did not deny the harmony of the true doubt rule with
congressional policy in these cases, but it held instead that the use of the true
doubt rule in BLBA cases conflicts with 20 CFR 718.403 (1993), a Department
of Labor regulation providing that "[e]xcept as provided in this subchapter, the
burden of proving a fact alleged in connection with any provision of this part
shall rest with the party making such allegation." But the phrase "burden of
proving," like its cognate, "burden of proof," is susceptible of two meanings,
including the meaning given by the agency interpretation, as imposing only the
burden of producing evidence. The Department of Labor is entitled to
"substantial deference" in the interpretation of its own regulations, and the
agency's interpretation need only be reasonable in light of the regulations' text
and purpose, Martin v. Occupational Safety and Health Review Comm'n, 499
U.S. 144, 150-151, 111 S.Ct. 1171, 1175-1176, 113 L.Ed.2d 117 (1991);
accord, Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct.
1215, 1217, 89 L.Ed. 1700 (1945). The agency's interpretation of its regulation
is surely reasonable here, given our own prior interpretation of "burden of
proof" as referring only to production.

62

The Department of Labor's decision in the true doubt rule, to assign the burden
of persuasion to the employer in cases involving harms to workers in the
longshore and coal mining industries, is thus permissible and free from conflict
with § 7(c) of the APA. I would sustain the Department's rule, and accordingly
offer this respectful dissent.

*

**

***

1

Together with Director, Office of Workers' Compensation Programs,
Department of Labor v. Maher Terminals, Inc., et al., also on certiorari to
the same court.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282,
287, 50 L.Ed. 499.
See, e.g., Lee v. State Bank & Trust Co., 38 F.2d 45, 48 (CA2 1930);
United States v. Knoles, 75 F.2d 557, 561 (CA8 1935); Department of
Water and Power of Los Angeles v. Anderson, 95 F.2d 577, 583 (CA9
1938); Rossman v. Blunt, 104 F.2d 877, 880 (CA6 1939); Cory v.
Commissioner, 126 F.2d 689, 694 (CA3 1942); Commissioner v. Bain
Peanut Co., 134 F.2d 853, 860, n. 2 (CA5 1943); New York Life Ins. Co. v.
Taylor, 147 F.2d 297, 301 (CADC 1945).
One can hardly blame the great justice, who had left the bench at the
beginning of that year.

2

3

4

5

6

The Attorney General found the phrase ambiguous, noting that "[t]here is
some indication that the term 'burden of proof' was not employed in any
strict sense, but rather as synonymous with the 'burden of going forward.'
In either case, it is clear from the introductory clause that this general
statement was not intended to repeal specific provisions of other statutes
which, as by establishing presumptions, alter what would otherwise be the
'burden of proof' or the 'burden of going forward'." Attorney General's
Manual on the Administrative Procedure Act 75 (1947) (footnote
omitted).
Congressional intent that in § 7(c), burden of proof means burden of
production is further confirmed by the fact that as originally introduced in
the House, § 7(c) stated that "[t]he proponent of a rule or order shall have
the burden of proceeding except as statutes otherwise provide." H.R. 1203,
79th Cong., 1st Sess. § 6, (introduced Jan. 1945), Leg.Hist. 158; see
Leg.Hist. 11, 300. Congress prepared extensive side-by-side comparisons
of the bill as introduced and as amended into its enacted form, but neither
Congress nor any of the commentators gave any indication that the change
in language was intended to change the meaning of the sentence. See
generally Text of S. 7 and Revised Text, 79th Cong., 1st Sess.,
(Comm.Print, June 1945), U.S.Code Cong.Serv.1946, 228.
I note in this regard that none of the parties argued for overruling
Transportation Management; only amicus American Insurance
Association did so; and the courts below did not pass on the question.
Rather, respondents argue that Transportation Management does not bar
the conclusion that a different sentence of § 7(c) places the burden of
persuasion on the proponent of an order.
Until the decision below, the Court of Appeals for the Third Circuit itself
applied the true doubt rule. See, e.g., Bonessa v. United States Steel Corp.,
884 F.2d 726, 730 (1989) ("The ALJ noted that the contradictory nature of
the x-ray evidence established 'true doubt' as to the existence of
pneumoconiosis and resolved that doubt, as is proper, in favor of
[claimant]").
See, e.g., NLRB v. Transportation Management Corp., 462 U.S. 393, 401403, 103 S.Ct. 2469, 2474-2475, 76 L.Ed.2d 667 (1983); NLRB v. Curtin
Matheson Scientific, Inc., 494 U.S. 775, 786-796, 110 S.Ct. 1542, 15491554, 108 L.Ed.2d 801 (1990); Bowen v. Yuckert, 482 U.S. 137, 146-147,
n. 5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987); Garrett v. MooreMcCormack Co., 317 U.S. 239, 246-249, 63 S.Ct. 246, 251-253, 87 L.Ed.
239 (1942); Concrete Pipe & Products of Cal., Inc. v. Construction
Laborers Pension Trust for So. Cal., 508 U.S. ----, ---- - ----, 113 S.Ct.
2264, ---- - ----, 124 L.Ed.2d 539 (1993); 38 CFR § 3.102 (1993) (doubts
in veteran's benefits adjudications resolved in favor of claimant); 38
U.S.C. § 5107 (1988 ed., Supp. IV) (same).