292
Souter, J., dissenting
ed. 1992) ("[T]he 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).
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:
"[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 (1983)." Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 660 (1989).
If the Wards 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.
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. of Va. v. Director, Office of Workers' Compensation Programs, 484 U. S. 135 (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
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