In an interesting (but opaque) unpublished decision from earlier this week, the U.S. Court of Appeals for the Fourth Circuit has changed course in a case that was previously discussed on this blog, Coastal Coal Corp. v. Director, OWCP [Miller] (see previous post here.)
In the Fourth Circuit’s first decision from May 2015, it held that it lacked jurisdiction over the case due to timing. The Fourth Circuit understood Coastal Coal’s reconsideration motion before the Board to be a couple days late and thus not to toll the deadline for filing a petition before the U.S. Court of Appeals.
However, in this week’s decision, (available here and at 624 F. App’x 824) the Fourth Circuit granted Coastal Coal’s request for rehearing and has not only changed its opinion about the timeliness of the petition, but also vacated the award of benefits!
The Fourth Circuit’s short, unpublished decision (per curiam by Circuit Judges Shedd and Duncan and Senior Circuit Judge Hamilton) appears to be written for the parties to the case rather than to give guidance in future cases because it gives little detail about the facts that the case turns on. However, by looking at Coastal Coal’s Petition for Rehearing and the Board and ALJ decisions below, the Fourth Circuit’s decision can better be understood.
In this week’s decision, the Fourth Circuit merely said (in a footnote): “We conclude (contrary to our earlier opinion) that Employer filed a timely motion for reconsideration of the Board’s order affirming the ALJ’s award of benefits. See 20 C.F.R. §§ 802.221(b), 802.407 (2014). Accordingly, Employer’s petition for review in this court was timely. See 33 U.S.C. § 921(c) (2012).“
To make sense of why the Fourth Circuit changed position, I looked to Coastal Coal’s Petition for Rehearing. In that document, Coastal Coal’s lawyers explained that the court was mistaken in its previous decision about when the reconsideration motion before the Board was filed. While the Court’s May 2015 decision said that it was filed on January 24, 2014, Coastal Coal’s pleading says that it was actually filed on January 21, 2014. The source of the Court’s confusion is unclear. Because § 802.221(b) says that documents before the Board are deemed served when they are mailed, this means that January 21 is the relevant date and Coastal Coal’s motion was timely and thus tolled the period that the company had to ask the Fourth Circuit for review.
Because Coastal Coal’s petition for review was timely, the Fourth Circuit then turned to the merits.
The Board split on this issue, with Judges Dolder and Hall holding that the ALJ’s finding was proper and with Judge Boggs dissenting because she did believed the ALJ committed reversible error.
The disagreement among the Board judges appears to be a combination of a factual question about whether the ALJ’s opinion was sufficiently explained and a legal question about where in the legal analysis the radiologists’ comments should have been considered: the § 718.202 inquiry into the existence of pneumoconiosis or the § 718.203 inquiry into the cause of the pneumoconiosis (The difference matters for which party has the burden).
The Fourth Circuit’s holding does not refer to the legal disagreement. Instead the Fourth Circuit simply said “the ALJ erred by failing to consider the physicians’ comments.” This suggests that the problem was that the ALJ’s opinion was not sufficiently explained.
Thus, the state of the law is unclear on how to deal with a situation in which the radiologists agree that a large mass is present but offer differential diagnoses that may affect a finding of pneumoconiosis.
The best way to reconcile the Fourth Circuit’s holding with the Board’s majority opinion is to understand the Board’s legal approach to be correct (i.e., that differential diagnoses come up at § 718.203) but the Board’s view of the factual sufficiency of the ALJ’s explanation to be wrong.
This week’s decision in Miller is also noteworthy because it is one of the rare times in which a Court of Appeals disagrees with the Benefits Review Board. As mentioned in a recent post about the Fourth Circuit’s Sept. 10, 2015 decision in W. Va. CWP Fund v. Mullins, the Board went nearly a year from September 11, 2014 to September 10, 2015 in which all of its black lung decisions were affirmed. Now in the period of less than a month, the Board has had two decisions reversed or vacated—interestingly, both on factual issues.
This week’s decision in Miller and last month’s decision in Mullins should both be on the radar of those who work within the Fourth Circuit even if their precedential weight is weak.
Mr. Miller was represented by Otis Mann.
Coastal Coal-West Virginia was represented by William Mattingly & Jeffrey Soukup of Jackson Kelly.
The Director, OWCP was represented by Sean Gregory Bajkowski and Helen Hart Cox of the Department of Labor’s Solicitor’s Office.