On September 12, 2014, the Sixth Circuit issued its decision in Navistar, Inc. v. Forester, (767 F.3d 638 , 2014 WL 4473331, 6th Cir. 2014) reversing the Benefits Review Board and Administrative Law Judge and holding that Mr. Forester’s work as a federal mine safety inspector was not work as a “miner” for purposes of the Black Lung Benefits Act. Consequently Mr. Forester’s work as an inspector did not count for calculating his years of “coal mine employment” for purposes of the 15 year presumption. The Court remanded the case to the ALJ to determine whether Mr. Forester qualified for benefits based on his five years of qualifying coal mine employment, from 1970–1975, without including the years he worked as an inspector.
At that hearing before the ALJ, Navistar stipulated that Mr. Forester had seventeen years of coal mine employment which included his years of work as an inspector. It argued post-hearing that the stipulation was ineffective because it was contrary to law. Navistar argued that Mr. Forester’s work as a federal inspector did not qualify as coal mine employment under the BLBA. The Director supported Navistar and argued that work as a federal coal mine inspector did not meet the statutory definition of “miner” under the BLBA.
Mr. Forester argued that his work as an inspector was qualifying coal mine employment. He relied on the Benefits Review Board’s decision in Moore v. Duquesne Light Company, 4 Black Lung Rep. 1-40.2 (1981), aff’d, 681 F.2d 805 (3d Cir. 1982) (table). In Moore, the Board held that federal mine inspectors are “miners” for purposes of the BLBA. According to the Board, a federal mine inspector’s work satisfies the “situs” test, since the inspector spends a significant portion of each work day in underground coal mines, and it satisfies the “function” test, because the inspector’s duties are an integral function of the operation of the coal mines. Safety inspections are statutorily required and mines cannot operate unless health and safety standards are met.
The Court did not treat the factual stipulation as conclusive with respect to the underlying legal issue, holding that the stipulation that Mr. Forester had seventeen years of coal mine employment was not binding with respect to the purely legal question of whether his employment as a federal mine inspector qualifies as coal mine employment for purposes of the BLBA. Although the stipulation was consistent with controlling Board precedent, the Court cited the holding in Swift & Co. v. Hocking Valley Railway Co., 243 U.S. 281 (1917), “[i]f the stipulation is to be treated as an agreement concerning the legal effect of admitted facts, it is obviously inoperative[,] since the court cannot be controlled by agreement of counsel on a subsidiary question of law.” Id. at 289-90 (emphasis added).
The Court noted that the BLBA defines a “miner” as: “any individual who works or has worked in or around a coal mine or coal preparation facility in the extraction or preparation of coal. Such term also includes an individual who works or has worked in coal mine construction or transportation in or around a coal mine, to the extent such individual was exposed to coal dust as a result of such employment.” The Court stated that a Department of Labor regulation slightly expands the definition of “miner” as including: “any person who works or has worked in coal mine . . . maintenance in or around a coal mine or coal preparation facility.”
Falcon Coal Co. v. Clemons, 873 F.2d 916, 921 (6th Cir. 1989), held: “To qualify as a ‘miner,’ an individual must establish that: (1) he worked in or around a statutorily defined coal mine (the ‘situs’ test), . . . and (2) his duties involved the extraction or preparation of coal, or involved appropriate coal mine construction or transportation (the ‘function’ test).” Falcon held that although the “function” test also encompasses “workers performing duties incidental to the extraction or preparation of coal,” those duties must be “an ‘integral’ or ‘necessary’ part of the coal mining process.”
In Forester, the Court discussed the amount of deference, if any, it should give to the positions taken by the respective parties. The Court held that because the Board was an adjudicatory tribunal and did not make rules or formulate policy, its interpretation of the Act was not entitled to any special deference (citing Robbins v. Cyprus Cumberland Coal Co., 146 F.3d 425, 427 (6th Cir. 1998) and Sharondale Corp. v. Ross, 42 F.3d 993, 997 (6th Cir. 1994)). It held that the Director’s interpretation of the BLBA is entitled to some deference because the Department of Labor makes rules and formulate policy concerning black lung benefits. The Court said the degree of deference to be given depended on whether that interpretation is contained in a regulation issued following notice and comment rulemaking. The Court said if the agency had issued a regulation or a statement in another form intended to have the force of law, it was entitled to substantial deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984). However, in Mr. Forester’s case, there was no federal regulation that addressed directly the question of whether a federal mine inspector was a “miner” for purposes of the BLBA, so Chevron deference was inapplicable. The Court gave the Director’s litigation position a lesser level of deference known as Skidmore deference. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). It noted the Director had consistently asserted this position for over twenty years, and had stated in the brief it submitted in Tussey v. Island Creek Coal Co., No. 92-3032 (6th Cir. Mar. 18, 1992), that “[a] federal mine inspector performs a purely governmental function . . . The inspector is not engaged in coal mining; he merely regulates it.” The Court concluded that the Director’s position that federal mine inspectors are not “miners” for purposes of determining eligibility for BLBA benefits was well-reasoned and consistent with the intent of Congress.
The Court said that “[a] federal coal mine inspector does not work ‘in the extraction or preparation of coal,’ or ‘in coal mine construction or transportation,’ as those terms are commonly defined. Nor is a federal mine inspector involved in ‘maintenance’ tasks at the mine site. Rather, a federal mine inspector’s duties are purely regulatory. Although the “function” test also encompasses “workers performing duties incidental to the extraction or preparation of coal,” those “incidental duties must be an ‘integral’ or ‘necessary’ part of the coal mining process.’”
The Court distinguished Sammons v. EAS Coal Co., No. 92-3030, 1992 WL 348976 (6th Cir. Nov. 24, 1992), which held that a mine inspector employed by the coal company was a miner. It stated that the private mine security guard in Sammons was also responsible for checking the mine for fire and safety issues and was a miner under the BLBA because he kept the mine “operational, safe, and in repair,” rendering his work “vital and essential to the production and extraction of coal.” The Court also distinguished the holding in Wackenhut Corp. v. Hansen, 560 F. App’x 747, 749 (10th Cir. 2014), that a private coal mine inspector, whose purpose was to ensure safety in order to maximize the coal production process, was engaged in a function that is necessarily related to the extraction or preparation of coal.
The Court rejected Mr. Forester’s argument that federal mine inspectors engage in work that is integral and necessary to the mining process, much like private coal mine inspectors. It said Sammons and Hansen were easily distinguishable because Sammons and Hansen performed other tasks related to the maintenance and daily operation of the mines in addition to their inspection duties. The Court said these tasks not only ensured the safe operation of the mine, but they were also integral to the extraction of coal. “In stark contrast to these private mine inspectors, a federal mine inspector serves a purely regulatory function. He is not involved in the day-to-day overall operation of any particular mine; rather, he inspects each mine several times each year, issuing citations if he finds violations of federal mine health and safety standards. Merely because the federal mine inspector is charged with ensuring compliance with those standards, the violation of which may delay or halt the mining process, these incidental regulatory duties are not an “integral or necessary part of the coal mining process.”
The decision presents several concerns. First, why is a mine safety inspector not performing a function which is integral to the extraction, preparation, or transportation of coal, regardless of who is his employer? Isn’t ensuring compliance for the health and safety of miners in the very dangerous conditions of coal mining an “integral” or “necessary” part of the coal mining process? The Court stated that the inspector duties are regulatory. It does not say why the performance of regulatory inspection duties is not integral or necessary.
Second, the Court relieved Navistar of the effect of a stipulation that was consistent with controlling Board precedent without a clear explanation. In BLBA cases, the parties regularly stipulate to facts based on Board precedent. If a party disagrees with precedent, it is not compelled to stipulate. As a matter of policy, should parties be free to renege on stipulations freely made and consistent with prior Board holdings?
Third, Chevron deference applies to reasonable agency interpretations of ambiguous statutes when such interpretations have the force of law, which should include the published decisions of the Board. The Board’s holding that a mine safety inspector was a miner was a reasoned decision and was not arbitrary or capricious. While the Court gave deference to the Director’s consistent litigation position, it failed to note that the regulations issued by the Director in 2001 did not address the issue of whether an inspector was a miner, despite the Board’s existing case law.
Fourth, pneumoconiosis means a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment. If a mine inspector is not engaged in coal mine employment, what does that mean in considering whether dust exposure incurred during the inspector’s years of mining inspections caused his respiratory or pulmonary impairment? The Court noted that Mr. Forester had been exposed to coal mine dust in his work as an inspector. How should doctors address disease causation in medical opinions in this situation?