Fourth Circuit Rejects Constitutional Arguments Against Miner’s Black Lung Benefits Award in a Subsequent Claim (Eastern Associated Coal Corp. v. Director, OWCP [Toler])

Map of 4th Circuit Jurisdiction

On November 6, 2015 in Eastern Associated Coal Corp. v. Director, OWCP [Toler], 805 F.3d 502 (4th Cir. 2015) (slip opinion available here), the U.S. Court of Appeals for the Fourth Circuit rejected arguments—including a constitutional one—that a coal company made against a miner’s award of federal black lung benefits.

Eastern Associated Coal argued that Arvis Toler’s award of benefits violated the U.S. Constitution’s separation-of-powers principle and Due Process Clause because Mr. Toler had a previous claim that, in 1998, the Fourth Circuit affirmed the Department of Labor’s denial of.  Last week, the Fourth Circuit held that despite Mr. Toler’s previous claim, the Department of Labor properly awarded benefits in Mr. Toler’s subsequent claim.  It was not problematic that Mr. Toler invoked the fifteen-year presumption to help prove a change in condition.

(Disclosure: I represented Mr. Toler before the Fourth Circuit.)

The Fourth Circuit’s published decision (written by Judge King and joined in full by Judges Motz and Gregory) squarely supports the rights of coal miners to file subsequent black lung benefits claims.  The decision is consistent with the Department of Labor’s practice, so it will not lead to a departure in how black lung claims are handled.  However, the decision stands as solid precedent against the bold arguments made by Eastern Associated Coal’s lawyers and should discourage similar appeals.  The Fourth Circuit properly held that despite some factual similarity, Mr. Toler’s subsequent claim was not the same as his first and that the ALJ needed only to consider whether Mr. Toler was entitled to benefits at the time of his subsequent claim based on the law currently in effect.


As described by the Fourth Circuit, Arvis Toler worked in West Virginia for Eastern Associated Coal for 27 years, 16 of which were underground.  From 1966 to 1997 he smoked about a pack of cigarettes a day.  After beginning to experience breathing problems in the mid-1980s, by 1993 he could not longer do his job in the mines and quit at age 55.  Before quitting, Mr. Toler filed a black lung claim.

In Mr. Toler’s 1993 claim, the Department of Labor’s Administrative Law Judge found that Mr. Toler was totally disabled from a respiratory standpoint but found that Mr. Toler failed to show that his work in the mines (rather than his smoking habit) caused his disabling COPD.  (Although not explained in the court’s current opinion, the ALJ’s denial essentially came down to her decision to credit the etiology opinions of Eastern Coal Corporation’s experts, Dr. Zaldivar and Dr. Tuteur, over Dr. Rasmussen’s opinion provided as a part of the Department of Labor’s evaluation of Mr. Toler).  Mr. Toler appealed to the Benefits Review Board and eventually to the U.S. Court of Appeals for the Fourth Circuit, but both rejected his appeals and held that the ALJ’s decision was supported by substantial evidence.  See Toler v. Eastern Associated Coal Corp., No. 97-2148, 1998 WL 537925 (4th Cir. Aug. 19, 1998) (unpub.).

Even though Mr. Toler had quit smoking in 1997 and was no longer exposed to coal-mine dust, his breathing continued to deteriorate eventually requiring the use of oxygen 24/7.   In 2009, Mr. Toler filed a second claim for black lung benefits.

Mr. Toler’s 2008 claim was based on the Department of Labor’s evaluation by Dr. Burrell, a letter from Mr. Toler’s treating physician, 3 positive x-ray readings, and Dr. Rasmussen’s opinion from Mr. Toler’s 1993 claim.  Eastern Associated Coal defended by submitting opinions by Dr. Rosenberg and Dr. Renn and 4 negative x-ray readings (one of which was an ambiguous reading by Dr. Wheeler).

The ALJ weighed this evidence and found that Mr. Toler (again) proved he was disabled.  Because the ALJ’s decision came after the Affordable Care Act (ACA) revived the fifteen-year presumption and Mr. Toler had more than fifteen qualifying years, Mr. Toler invoked the presumption.  The ALJ then found that Eastern Associated Coal’s experts could not meet its burden to rule out any connection between Mr. Toler’s presumed pneumoconiosis and his disability.  Relying on Consolidation Coal Co. v. Director, OWCP [Bailey], 721 F.3d 789, 795 (7th Cir. 2013), the ALJ rejected Eastern Associated Coal’s arguments that Mr. Toler needed to do more than invoke the presumption and needed to prove affirmatively that he had pneumoconiosis that had progressed since his 1998 denial.  The ALJ awarded benefits back to 2008, when Mr. Toler filed his subsequent claim.

The Benefits Review Board affirmed the ALJ’s award and agreed that Mr. Toler could show a change in condition using the fifteen-year presumption, that doing so did not violate the principles of res judicata or separation of powers, and that the ALJ’s use of the “rule out” standard for rebuttal was proper.

Fourth Circuit Decision

The Fourth Circuit began its analysis by noting that Eastern Associated Coal’s argument against the “rule out” standard was foreclosed by the court’s decision in West Virginia CWP Fund v. Bender, 782 F.3d 129, 143 (4th Cir. 2015) (see previous post here), and that the company’s complaints about the ALJ’s use of the preamble to the 2000 amendments to the rules were resolved by Harman Mining Co. v. Director, OWCP [Looney], 678 F.3d 305, 314–16 (4th Cir. 2012).

The court then considered Eastern Associated Coal’s nonconstitutional argument:  that under the black lung regulations, a subsequent claim cannot be based on a change in law but rather must be based purely on affirmative evidence showing that the miner now has pneumoconiosis.   The court held, “Both the Act and the regulations show plainly that a coal miner armed with new evidence may invoke the fifteen-year presumption to establish a chance in an applicable condition of entitlement.”  The court explained that this conclusion was supported by three sources of authority.  First, the regulations provide at 20 C.F.R. § 718.204(a)(3) that one of the ways that a miner can prove pneumoconiosis is via the fifteen-year presumption.  Second, Congress’s used of the unqualified word “claims” in § 1556(c) of the Affordable Care Act means that the fifteen-year presumption applies to any claim—including subsequent claims—meeting the statute’s time limitations.  Third, at 65 Fed. Reg. at 79,972, the preamble to the 2000 amendments to the regulations said that a miner can use statutory presumptions in subsequent claims without having to prove that he has a progressive form of pneumoconiosis.  In addition to these source of authority, the court noted that “even if we harbored doubts . . . we would defer to the Director’s reasonable and consistent interpretation of the applicable regulations.”

The court rejected what it called Eastern Associated Coal’s “Hail Mary” that it should read the black lung statute and regulations to avoid “serious constitutional doubt.”  The Court held that this argument “falls short, not least because Eastern has raised no ‘serious’ doubt about the constitutionality of any particular statute or regulation.”

The court also rejected Eastern Associated Coal’s argument related to the latent and progressive nature of pneumoconiosis.  Eastern Associated Coal argued that because—in its view—”simple clinical[] and legal pneumoconiosis[] are neither latent nor progressive” and the Secretary of Labor conceded this in National Mining Association v. Department of Labor, 292 F.3d 849, 863 (D.C. Cir. 2002), that applying the presumption in a subsequent claim is contrary to science.  The court held that it defers to the agency in matters in its expertise and because the preamble to the 2000 amendments “demonstrates that both simple and complicated pneumoconiosis can be latent and progressive,” that—as the as the D.C. Circuit held in National Mining Association—even simple pneumoconiosis can be progressive.

The court then turned to the company’s constitutional argument which was based on the Supreme Court’s decision in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).  The Fourth Circuit held “Simply put, Plaut presents no obstacle to the ALJ’s consideration of Toler’s second claim under post-ACA legal standards.  The ALJ’s award of benefits on Toler’s second claim did not “retroactively . . . reopen” anything, much less a final judgment of an Article III court.  As we explained in Lisa Lee Mines, a subsequent claim based on new evidence is not the same claim as the one previously denied.”  The court supported its conclusion by noting that while Eastern Associated Coal had identified no authority extending Plaut to similar circumstances, that the cases considering subsequent claims filed by black lung widows under the “automatic entitlement” provision at § 932(l) support the right of miners to file subsequent claims. (For more information on a nearly identical constitutional argument that was rejected in a widow’s case and briefed at the certiorari stage before the Supreme Court, see previous post here about Peabody Coal Co. v. Director, OWCP [Hill].)

At note 9, the court considered the argument put forth by Judge Sutton in his “concurring” opinion in the en banc denial in Peabody Coal Co. v. Director, OWCP [Hill], No. 12-4366 (6th Cir. Dec. 23, 2014), and said that it found his opinion “unpersuasive.”

At note 10, the court also rejected Eastern Associated Coal’s “scantily developed due process contention.”


The Fourth Circuit’s decision in Toler is an important decision for clearly and decisively resolving a major issue in subsequent black lung claims.  The court’s core holding—that a miner who was found disabled in a pre-Affordable Care Act claim can properly be awarded benefits by simply filing a new claim and generating evidence similar to what was considered in his first claim—boldly demonstrates the decisive difference that the fifteen-year presumption makes in black lung cases.  The court made clear that the subsequent claim analysis does not vary based on whether a change is supported purely by new evidence or by a combination of new evidence and new law and, further, does not vary based on whether an Article III court affirmed the prior denial.

The court’s constitutional analysis was also notable for aligning miner’s claims using the fifteen-year presumption with widow’s claims using the “automatic entitlement” provision.  Although both claims are treated favorably under the changes made by the Affordable Care Act, they are handled under different provisions of the Black Lung Benefits Act.  Connecting these two lines of cases with pre-Affordable Care Act subsequent claim doctrine such as Lisa Lee Mines should be useful in other circuits that have not clearly held on these issues.

The bottom line is that in a timely miner’s claim, the question is simply whether the miner can support a claim now.  It does not matter which elements the miner previously could not prove and it does not matter if a U.S. Court of Appeals previously affirmed the denial.

Toler is a solid win for coal miners and their families.  Sadly, Mr. Toler passed away before the Fourth Circuit rejected the company’s arguments against his award.  His widow is proud though that other miners will be able to push back against similar arguments by referring to his case.

Eastern Associated Coal Corporation was represented by Mark E. Solomons and Laura M. Klaus of Greenberg Traurig LLP.

The Director, OWCP was represented by Jeffrey S. Goldberg and Gary K. Stearman of the Department of Labor’s Solicitor’s Office.

As mentioned above, Arvis Toler and his widow Clara Sue Toler were represented by me at Appalachian Citizens’ Law Center, Inc.  (Mr. Toler was represented below by benefits counselors from Community Health of East Tennessee.)

5 Responses to “Fourth Circuit Rejects Constitutional Arguments Against Miner’s Black Lung Benefits Award in a Subsequent Claim (Eastern Associated Coal Corp. v. Director, OWCP [Toler])”

  1. Tony Oppegard

    Well done, Evan ! An important victory for miners who suffer from black lung…!


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