Gorsuch’s Rulings in Black Lung Benefits Cases

Now that President Trump has nominated Judge Neil M. Gorsuch to the U.S. Supreme Court, many are sifting through his record to better understand what his confirmation could mean.

Judge Gorsuch ruled in two black lung benefits claims as a judge on the U.S. Court of Appeals for the Tenth Circuit (which covers Wyoming, Utah, New Mexico, Colorado, Oklahoma, and Kansas).  In both cases, he wrote for the court and affirmed the awards of benefits to disabled coal miners.

These are only two cases, but they are both within the mainstream of how most federal judges rule in black lung cases. More broadly, they demonstrate four things about Judge Gorsuch: (1) a willingness to defer to agency adjudicators on factual disputes, (2) a practical approach to procedural issues, (3) a reticence to rule on issues where it can be avoided, and (4) an acceptance of agency rulemakers’ power to overturn prior judicial interpretations of regulations by rewriting those regulations.

Energy West Mining Co. v. Oliver (10th Cir. 2009)

Energy West Mining Co. v. Oliver, 555 F.3d 1211 (10th Cir. 2009), involved a Utah coal miner who developed disabling chronic obstructive pulmonary disease (“COPD”) after 25 years as a coal miner. Judge Gorsuch held in a published decision that the ALJ properly applied the “treating physician rule” and this evidence was sufficient to support the award of benefits. Judge Gorsuch then wrote:

The rest of Energy West’s potpourri of objections to the ALJ’s credibility determinations do not warrant significant discussion. This court cannot substitute its assessment of the credibility of experts for that of the ALJ, and thus cannot accept Energy West’s invitation to reexamine the weight of the medical evidence supporting the ALJ’s decision. Both the Board and the ALJ have shown their work. We therefore sustain the ALJ’s findings for substantially the same reasons given by the Board in its opinion.

Judge Gorsuch also held in Oliver that even though the Department of Labor destroyed the records from Mr. Oliver’s old claim (19 years after it was closed) that this did not amount to a sufficient denial of due process to warrant shifting liability for Mr. Oliver’s benefits from Energy West Mining to the government. In rejecting this argument, Judge Gorsuch expressed some of his views about the role of the constitutional requirement of due process in administrative law:

[A]part from core due-process violations such as the failure to give notice or any opportunity to be heard, when (as here) a party “complains about the course of administrative proceedings,” that party must demonstrate that the adjudication was infected by “some prejudicial, fundamentally unfair element.” That is because the Constitution is concerned with procedural outrages, not procedural glitches. Litigation is rarely pristine and is filled with risk: evidence gets lost, witnesses lie, judges err. The Due Process Clause does not protect against these missteps as such. Its interest is only in whether an adjudicative procedure as a whole is sufficiently fair and reliable that the law should enforce its result. Thus, Energy West must demonstrate that the contents of Mr. Oliver’s lost claim file were so vital to its case that it would be fundamentally unfair to make the company live with the outcome of this proceeding without access to those records.

The court held that Energy West Mining could not show prejudice because the evidence in the old claim did not appear central to the new claim, the denial in the old claim reset the statute of limitations, and Mr. Oliver satisfied the requirements for a subsequent claim by proving his total respiratory disability—an element that was previously found against him.

Judge Gorsuch’s discussion of the subsequent claim issue suggests some of his broader views about the role of courts and agencies in establishing and interpreting the law. (A topic that has gained attention due to Judge Gorsuch’s concurring opinion in Gutierrez-Brizuela v. Lynch, criticizing the important doctrine known as “Chevron deference” which requires courts to defer to an agency’s interpretation of a statute as long as it is “reasonable”—even if the court would interpret the statute differently.)

As background, in the 1990s there was considerable legal dispute over exactly what a coal miner who had had a prior black lung claim denied, but who wished to file a subsequent black lung claim, needed to prove to show that his new claim was different from his old claim. In 1996, the Tenth Circuit came down on the side of the dispute that made it harder for miners to win and rejected the Department of Labor’s more claimant-friendly “one element” interpretation. See Wyoming Fuel Co. v. Director, OWCP, 90 F.3d 1502 (10th Cir. 1996).  Thirteen years later though, Judge Gorsuch explained why Wyoming Fuel no longer represented current law regarding the standard for subsequent claims:

Regulatory authorities are not always stuck with judicial interpretations of their regulations with which they are unhappy. Having been told that § 725.309(d) was not susceptible of its preferred reading, the Department of Labor availed itself of the policymaker’s most efficacious remedy: it sought to rewrite the rule. In 2001, after notice and comment, the Secretary of Labor published an amended version of § 725.309(d) that codifies a new version of the one-element rule we rejected in Wyoming Fuel: “the [subsequent] claim shall be denied unless the claimant demonstrates that one of the applicable conditions of entitlement … has changed since the date upon which the order denying the prior claim became final.” 20 C.F.R. § 725.309(d); see Wyoming Fuel, 90 F.3d at 1509-10.

Judge Gorsuch’s opinion also shows that he appreciates that there were good arguments on both sides of this debate involving the competing values of finality and providing deserving miners with benefits, but ultimately, he wrote that “these, happily, are questions we need not decide in this case” due to Energy West Mining’s concession that Mr. Oliver had proven that he was now disabled (a fact that he could not prove in his old claim).

Energy West Mining Co. v. Johnson (10th Cir. 2007)

Energy West Mining Co. v. Johnson, 233 F. App’x 860 (10th Cir. 2007), involved a miner who worked for 44 years underground and had a long, but disputed, smoking history. The debate in the case was whether Mr. Johnson’s breathing problems could be explained totally by his smoking, or whether his career in the mines contributed.

Judge Gorsuch, writing for the court in an unpublished decision, held that there was “substantial evidence” to support the award of benefits, especially in light of the court’s deference to the Department of Labor’s adjudicators. Judge Gorsuch wrote:

Substantial evidence need not be commanding or even the most convincing proof . . . The reasons for this deferential standard of review stem from the expertise of the agency charged with administering Congress’s directives in the field and its unrivaled opportunity to assess the credibility of the witnesses; respecting these realities, we will “not sit as a super trial examiner,” reweighing the evidence and comparative credibility of witnesses.

Judge Gorsuch held that the ALJ examined the evidence and was within his discretion to credit Mr. Johnson’s evidence over Energy West Mining’s.

Somewhat similar to Oliver, Judge Gorsuch also rejected a technical argument by Energy West Mining that the agency failed to consider all of the relevant evidence. Judge Gorsuch held that Energy West Mining “has not explained to us why those records are relevant and in so doing has left us with no choice but to dismiss this argument for lack of sufficient development to allow for meaningful judicial review.” In support, Judge Gorsuch cited his own concurring opinion from Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1184 (10th Cir. 2007), in which he wrote that adjudicating an issue that is not properly briefed “runs the risk of an improvident or ill-advised result given our dependence as an Article III court on the traditions of the adversarial process for sharpening, developing, and testing the issues for our decision.”

As mentioned above, four things stand out to me about these two opinions by Judge Gorsuch: (1) a willingness to defer to agency adjudicators on factual disputes, (2) a practical approach to procedural issues, (3) a reticence to rule on issues where it can be avoided, and (4) an acceptance of agency rulemakers’ power to overturn prior judicial interpretations of regulations by rewriting those regulations.

I have no opinion about whether these traits are common across the other subject areas where he ruled, but as a judge ruling in the specialized area of black lung benefits law, he appears to be in the mainstream of federal appeals judges.

5 Responses to “Gorsuch’s Rulings in Black Lung Benefits Cases”

  1. Celeste Monforton

    Evan,
    Thank you for your speedy assessment of Judge Gorsuch’s record on black lung cases. Very interesting to read the excerpts. Much appreciated.

    Reply
  2. Doc Holliday

    Only a GEEK would read these cases and write about them. Thank God for our resident GEEK! 😉 We love you Evan………..

    Doug Holliday

    Reply

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