Essay on Retroactivity and Black Lung Regs: “New Regulations and Pending Cases”

Today the University of Pennsylvania Law Review Online published an Essay I wrote about how retroactivity issues should be handled.  “New Regulations and Pending Cases” focuses on why the 2013 amendments of the black lung benefits regulations are applicable in pending cases.

Below is the intro to the piece:

Do new regulations apply to pending cases? The question is simple, but the short answer is a lawyer’s favorite: “It depends.” It depends on the organic statute, it depends on the regulation, and, unfortunately, it may even depend on the federal court of appeals that happens to decide the case. This Essay looks at this issue by examining the effect of the Department of Labor’s 2013 amendments to regulations governing claims under the Black Lung Benefits Act. This Essay explains why the new regulations are applicable to pending cases, even if the Department of Labor already issued its final decision on a claim and a party already petitioned a court to review that decision.


The analytical route to this result varies by circuit. This Essay explains why the factor-based retroactivity test used by most circuits better addresses fundamental due process concerns and is more administrable than the D.C. Circuit’s approach, which turns on whether a circuit split predates the new regulations. This Essay both provides a clear answer about whether the 2013 amendments to the black lung regulations apply to pending cases and suggests how courts should handle retroactivity questions for regulations more broadly.

You can read the full piece by downloading it here from the website of the University of Pennsylvania Law Review Online  or by the embedded pdf reader below.

Evan Smith – New Regulations and Pending Cases

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