Evan Smith - New Regulations and Pending Cases

8/10/2019 Evan Smith - New Regulations and Pending Cases

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ESSAY

NEW REGULATIONS AND PENDING CASES

EVAN BARRET SMITH

INTRODUCTION

Do new regulations apply to pending cases? The question is simple, butthe short answer is a lawyers favorite: It depends. It depends on theorganic statute, it depends on the regulation, and, unfortunately, it mayeven 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 ofLabors amendments to regulations governing claims under the BlackLung Benets Act. 1This Essay explains why the new regulations are

applicable to pending cases, even if the Department of Labor already issuedits nal decision on a claim and a party already petitioned a court to reviewthat decision.

The analytical route to this result varies by circuit. This Essay explainswhy the factor-based retroactivity test used by most circuits better addressesfundamental due process concerns and is more administrable than the D.C.Circuits approach, which turns on whether a circuit split predates the newregulations. This Essay both provides a clear answer about whether the

Skadden Fellow and Staff Attorney, Appalachian Citizens Law Center; J.D., , Universityof Pennsylvania Law School; M.P.A., , Fels Institute of Government, University ofPennsylvania; B.A., , Oberlin College. The author extends thanks to Brittany Dunn-Pirio,J.D. Candidate, , Washington and Lee University School of Law, for research assistance.

1Regulations Implementing the Byrd Amendments to the Black Lung Benets Act: DeterminingCoal Miners and Survivors Entitlement to Benets, Fed. Reg. , (Sept. , )(codied at C.F.R. pts. , ()) [hereinafter Regulations Implementing the ByrdAmendments]. The Black Lung Benets Act is codied at U.S.C. ().


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University of Pennsylvania Law Review Online [Vol. :

amendments to the black lung regulations apply to pending cases andsuggests how courts should handle retroactivity questions for regulationsmore broadly.

I. THE GENERAL PROBLEM:RETROACTIVITY OFADMINISTRATIVE RULES

Aside from cases with choice-of-law or federalism issues, one wouldthink that our legal system would be clear about the applicable law in agiven case. When the law changes, however, issues arise as to whether thenew law should apply to past activity. These issues are generalized underthe term retroactivity.2

Retroactivity encompasses a spectrum of situations. These situationsrange from vested activities being regulated for the rst time (e.g., a newenvironmental law setting limits on carbon emissions from power plantsbuilt decades before)3to new laws revisiting otherwise nal judicial orders(e.g., a legislature passing a more lenient criminal law and allowing courtsto reduce the sentences of criminals who were sentenced under the previousharsher law).4This Essay examines a zone between these two poles of theretroactivity spectrum: pending cases where an action has already been led

but is awaiting a nal judicial order.In such a case, after a change in the law, should a judge apply the currentlaw or the law that existed when the action commenced? The answer to thisquestion highlights a conict between two principles: () that a court mustapply the law in effect at the time it renders its decision,5and () that thelegal effect of conduct should ordinarily be assessed under the law that

2See generallyWilliam V. Luneburg, Retroactivity and Administrative Rulemaking, DUKEL.J. , - (discussing retroactivity in both statutory and regulatory contexts).

3See, e.g., Carbon Pollution Standard for Modied and Reconstructed Stationary Sources:Electric Utility Generating Units, Fed. Reg. , (proposed June , ) (to be codied at C.F.R. pt. ).

4See, e.g., Freeman v. United States, S. Ct. , () (plurality opinion) (holdingthat prisoners whose sentences were based on provisions of the United States SentencingGuidelines that were subsequently and retroactively lowered could seek sentence reductions under U.S.C. (c)() ()).

5Landgraf v. USI Film Prods., U.S. , () (quoting Bradley v. Sch. Bd. of

Richmond, U.S. , ()). This principle ows from the Blackstonian declaratorytheory of the judicial role as discovering the law and declaring it as it exists. Luneburg, supranote , at & n.. The principle is most clearly represented in early Supreme Court doctrine byChief Justice Marshalls opinion in United States v. Schooner Peggy , U.S. ( Cranch) , (), which applied a (newly ratied) intervening treaty to reverse a trial court opinion.


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] New Regulations and Pending Cases

existed when the conduct took place.6The Supreme Court has consideredthe tension between these two principles numerous times.7The leading caseon the issue isLandgraf v. USI Film Products.8In the context of holding thatsome portions of the revisions to Title VII of the Civil Rights Act of

applied to pending cases while other portions did not, Landgrafestablished a framework for assessing retroactivity issues that was based ona careful provision-by-provision analysis.9

But despiteLandgraf, confusion still exists. Lower courts commonly applydifferent tests to determine whether application of new regulations topending cases is improperly retroactive.

On the one hand, the D.C. Circuit in National Mining Association v.Department of Labordeclared that retroactivity depends on whether the new

rule changes the legal landscape10which is determined by asking whethera new regulation is substantively consistent with prior regulations or prioragency practices, and has been accepted byallCourts of Appeals to considerthe issue.11By this test, if a single federal court of appealss interpretationvaried from the agencys new regulation, then the regulation should notapply retroactively.12

6Landgraf, U.S. at (quoting Kaiser Aluminum & Chem. Corp. v. Bonjorno, U.S., () (Scalia, J., concurring)). In the civil contextwhere the Ex Post Facto Clauses,U.S.CONST. art. , , , are inapplicablethis principle ows from due process requirements.

See generally Luneberg, supra note , at ([M]uch of the judicial and scholarly analysis ofretroactivity in the statutory context focuses on due process problems. The due process analysismay [also] impose constraints on retroactive agency rules. (footnote omitted)).

7See, e.g., Bennett v. New Jersey, U.S. , - () (discussing statutory retroactivity);Bradley, U.S. at - (same);see alsoBowen v. Georgetown Univ. Hosp., U.S. , -() (discussing the retroactivity of an agency rule); Thorpe v. Housing Auth. of Durham, U.S. , - () (same); Greene v. United States, U.S. , () (same).

Bowenstated that as a general matter agencies may not promulgate rules with retroactiveeffect unless Congress explicitly conveyed that power. U.S. at . Bowenappears to sweepbroadly, but subsequent decisions such asSmiley v. Citibank (S.D.), N. A., U.S. , - (),have applied new regulations retroactively without express congressional authorization. Accordingly,

Bowens statements about retroactivity must be considered in the context ofBowens unique facts,which involved the Department of Health and Human Services attempting to use a retroactiverule to recoup millions of Medicare dollars after a prior version of the rule was invalidated onprocedural grounds. SeeBowen, U.S. at -; see also RICHARD J. PIERCE ET AL.,ADMINISTRATIVE LAW AND PROCESS (th ed. ) (explaining the practical problems

Bowencreated with its retroactivity holding).8 U.S. ().9Id.at -.10 F.d , (D.C. Cir. ) (quoting Natl Mining Assn v. U.S. Dept of the Interior,

F.d , (D.C. Cir. )).11Id.at (emphasis added).12Seeid.at - (holding that regulations taking sides in circuit splits should not be applied to

pending cases).


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On the other hand, the Sixth Circuit, sitting en banc in Combs v.Commissioner of Social Security, declined to consider the existence of a circuitsplit to be dispositive and instead looked to three factors articulated inLandgraf: fair notice, reasonable reliance, and settled expectations.13Most

courts of appeals considering retroactivity issues align with the SixthCircuit in Combs and use a multifactor test,14 but two courts of appealssdecisions regarding black lung benets claims have followed the D.C.Circuits approach.15

In short, there is a circuit split over circuit splits. This sounds more likea statement from a self-referential logic problem than the clarity we desirefrom our legal system. A uniform approach would allow federal agenciesand parties to better predict what law applies in cases during transition

13 F.d , - (th Cir. ) (en banc) (citingLandgraf, U.S. at ).14SeeCarranza-De Salinas v. Holder, F.d , - (th Cir. ); Iles v. de Jongh,

F.d , (d Cir. ); Gordon v. Petes Auto Serv. of Denbigh, Inc., F.d , -(th Cir. ); Durable Mfg. Co. v. U.S. Dept of Labor, F.d , (th Cir. );Martinez v. INS, F.d , - & n. (d Cir. ); Saravia-Paguada v. Gonzales, F.d , - (th Cir. ),abrogated in part on other grounds byCardenas-Delgado v. Holder, F.d , - (th Cir. ) (noting that, because of more recent Supreme Courtprecedent, it is clear that someone seeking to show that a civil statute is impermissibly retroactive

is not required to prove any type of reliance and the essential inquiry is whether the new statuteattaches new legal consequences to events completed before the enactment of the statute); Heimv. Cadogan (In reADC Telecomms., Inc. Sec. Litig.), F.d , (th Cir. ); Lattab v.Ashcroft, F.d , - (st Cir. ); Sarmiento Cisneros v. U.S. Atty Gen., F.d , (th Cir. ).

15SeeCent. Ohio Coal Co. v. Dir., OWCP, F.d , (th Cir. ); Antelope CoalCo./Rio Tinto Energy Am. v. Goodin, F.d , (th Cir. ).

Central Ohioand Goodindo not necessarily represent the current retroactivity approaches ofthe Sixth and Tenth Circuits. Goodinappears to follow the D.C. Circuits approach, but the courtcited both the D.C. Circuits decision inNational Mining Associationas well as the Tenth Circuits

previous decision inFarmers Telephone Co. v. FCC, F.d , - (th Cir. ), whichused a ve-factor test to assess a retroactivity challenge. SeeGoodin, F.d at . Similarly,the Sixth Circuit in Central Ohiocited the D.C. Circuits decision in National Mining Association,but did not acknowledge its own previous en banc decision in Combs or explain why it was nolonger circuit law, so Combsshould still control in the Sixth Circuit. SeeCent. Ohio Coal Co., F.d at -. Despite these decisions citations toNational Mining Association, they shouldnotbeunderstood as holding that the Tenth and Sixth Circuits adopted the D.C. Circuits methodology,particularly for the specic analysis in this Essay. As explained below, the difference in approachesis not outcome determinative for the amendments to the black lung benets regulations.Seeinfra Sections II.A, II.B. Thus, the Tenth and Sixth Circuits methodological choices in casesconcerning the amendments should be considered dicta, not holdings.See generallyPierre N.

Leval, Madison Lecture,Judging Under the Constitution: Dicta About Dicta, N.Y.U.L. REV. ,- () (explaining the distinction between dicta and holdings with the test that [i]f thecourts judgment and the reasoning which supports it would remain unchanged, regardless of theproposition in question, that proposition plays no role in explaining why the judgment goes forthe winner[ . . . ,] is superuous to the decision[,] and is dictum).


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periods. Through the example of a new Department of Labor regulationunder the Black Lung Benets Act, this Essay illustrates that a multifactorapproach more appropriately addresses due process concerns than the D.C.Circuits approach.

II. ASPECIFIC APPLICATION:REGULATIONS IMPLEMENTING THEBYRD AMENDMENTS TO THE BLACK LUNG BENEFITS ACT

The Black Lung Benets Act is an appropriate place to examine retroac-tivity due to the nature of black lung disease and the large number ofchanges to the law. Black lung disease is a latent and progressive pulmonarydisease, which causes those who regularly breathed coal mine dust tosuffer respiratory impairments resulting in death or disability.16In ,Congress passed the Federal Coal Mine Health and Safety Act, whichincluded provisions that created a benets system for disabled coal minersand their families.17

In , as a part of the Affordable Care Act, Congress modied theBlack Lung Benets Act with a set of amendments known as the ByrdAmendments in honor of West Virginia Senator Robert C. Byrd.18Theseamendments do two things: () revive the fteen-year presumption so

that a disabled coal miner who worked for fteen years or more in or aroundan underground coal mine will be entitled to a rebuttable presumption thathis disabling respiratory impairment was due to black lung disease causedby his coal mine employment, and () remove the requirement that aminers dependent survivor (often a widow) revalidate the miners claims toreceive survivors benets.19

The Byrd Amendments explicitly apply to any pending case led afterJanuary , : the Affordable Care Act declares that the Byrd Amendments

shall apply with respect to claims led . . . after January , , that are

16See generallyEdward L. Petsonk et al., Coal Mine Dust Lung Disease: New Lessons from an OldExposure, AM.J.RESPIRATORY &CRITICAL CARE MED. , - () (providing amedical overview of the diseases commonly known as black lung disease).

17The relevant provisions of the Federal Coal Mine Health and Safety Act are codied asamended at U.S.C. (). For an introduction to the black lung benets system, seeStephen A. Sanders, Black Lung Benets for Disabled Coal Miners and Their Families , CLEARINGHOUSE REV.J.POVERTY L. &POLY , -.

18Patient Protection and Affordable Care Act, Pub. L. No. -, , Stat. , () (codied at U.S.C. (c)(), (l) ()), available athttp://www.gpo.gov/fdsys/pkg/PLAW-publ/pdf/PLAW-publ.pdf; see also CONG.REC.S- (daily ed.Mar. , ) (statement of Sen. Robert C. Byrd) (discussing the amendments),available athttp://www.gpo.gov/fdsys/pkg/CREC---/pdf/CREC----pt-PgS-.pdf.

19See generallySanders,supranote , at - & n..


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pending on or after the date of enactment of this Act.20In a floor statement,Senator Byrd explained that the amendments should apply to cases onappeal from the Department of Labors nal decision as well as cases inwhich a claimant seeks to modify a nal order.21No courts considering

the Byrd Amendments have found them unconstitutional even as applied topending cases.22

The specic focus of this Essay is on the Department of Labors regula-tions implementing the Byrd Amendments. While most of the rulesrevisions serve merely to clarify the regulations following the statutorychange, one change is notable and affects the result of many cases: theregulation at C.F.R. .(b) concerning the way surface mineconditions are compared to underground mine conditions.23

The rebuttable presumption (for disabled coal miners who worked forfteen years or more) is primarily phrased in terms of years of employmentin underground coal mines.24Nevertheless, the statute states that a coalminer who worked on surface mines can be eligible if the Secretary of Labordetermines that the conditions were substantially similar to conditions inan underground mine.25The question of how to determine whether surfacework is sufficiently similar to underground work has produced confusion,26especially in cases in which the miner has only surface mine experience.27

How is the claimant supposed to prove that his working conditions weresimilar to something with which he has no experience? How is an adminis-trative law judgewho cannot be expected to have experience in an

20Patient Protection and Affordable Care Act (c).21CONG.REC.S- (daily ed. Mar. , ) (statement of Sen. Robert C. Byrd).22SeeMcCoy Elkhorn Coal Corp. v. Dotson, F.d , (th Cir. ); Vision Processing,

LLC v. Groves, F.d , - (th Cir. ); W. Va. CWP Fund v. Stacy, F.d ,

- (th Cir. ); B&G Constr. Co. v. Dir., OWCP, F.d , (d Cir. ); Keenev. Consolidation Coal Co., F.d , (th Cir. ).23Regulations Implementing the Byrd Amendments,supranote , at ,- (codied at

C.F.R. .(b) ()); see also id. at ,- (discussing the Department of Laborsinterpretation of how and when miners must show that non-underground mines have substantialsimilarity to underground mines).

24 U.S.C. (c)() ().25Id.26See, e.g., Styka v. Jeddo-Highland Coal Co., No. -, WL , at * (Ben. Rev.

Bd. Feb. , ),available athttp://www.dol.gov/brb/decisions/blklung/published/-.pdf, at- (disagreeing with the administrative law judges view of how specic the miners evidence

must be to establish substantial similarity).27See, e.g., McGinnis v. Freeman United Coal Mining Co., Black Lung Rep. (Matthew

Bender & Co.) -, - (Ben. Rev. Bd. ), WL , at * (reversing the administrativelaw judges decision to compare the surface miners dust exposure to the most dusty area of anunderground mine, rather than a typical area of an underground mine).


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underground coal minesupposed to assess the similarity?28Correspondingly,what is the archetypal underground mine? Is it a responsibly run mine thatfollows the federal dust standards, a scofflaw mine, or something in between?Finally, how does one compare a surface mines dust, which contains higher

levels of dangerous silica,29

to the dust in an underground mine? Becausethere is no clear answer to these questions, the Tenth Circuit has acknowledgedsome merit in the argument that the substantial similarity standard isarbitrary and results in the absence of a meaningful legal standard.30

The regulations implementing the Byrd amendments avoid these difficultquestions by simplifying the inquiry: one only needs to ask whether a minerwas regularly exposed to coal-mine dust while working.31Effectively, the amendments to the black lung benets regulations forego a case-by-case

comparison of surface mine conditions to underground mine conditions.Instead, they determine by rule that coal mine dust on most surface minesis sufficiently dangerous to warrant treating like underground miners thosesurface miners who are regularly exposed to dust.

The regularly exposed standard is a more claimant-friendly standardand can make a difference in the outcome of close cases.32For example,conditions in an underground coal mine often include constant exposure todust because mining machinery produces dust during their operation. But a

miner who drives a dump truck at a surface mine may be intermittentlyexposed to dust (e.g., when a load of coal or other material is dumped intohis truck or when he drives by a portion of the mine where drilling orblasting has recently occurred). The dump-truck driver would nonethelessbe regularly exposed to coal mine dust even if it is debatable whether theconditions were substantially similar to an underground mine.

28The Tenth Circuit has stated that it is error for an administrative law judge to base asubstantial similarity inquiry on the judges personal experience with the testimony ofunderground miners.SeeAntelope Coal Co./Rio Tinto Energy Am. v. Goodin, F.d , n. (th Cir. ).

29SeeA. Scott Laney et al., Pneumoconiosis and Advanced Occupational Lung Disease AmongSurface Coal Miners States, , MORBIDITY &MORTALITY WKLY.REP. , () (reporting that a high proportion of surface miners radiographs suggested silicosis, adisease caused by inhalation of crystalline silica).

30Goodin, F.d at .31Regulations Implementing the Byrd Amendments, supra note , at , (codied at

C.F.R. .(b)() ()).32See, e.g., Templeton v. Debra Lynn Coals Inc., No. -, WL , at * (Ben.

Rev. Bd. Nov. , ), available at http://www.dol.gov/brb/decisions/blklung/unpublished/Nov/-.pdf, at - (reversing the administrative law judges decision and holding that evenif a miners testimony was not sufficient to meet the substantially similar standard, it wassufficient under the regularly exposed standard).


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But which standard should a court use if the dump-truck driver has a pendingclaim that was led before the effective date of the regulations, but came tothe court following the effective date? For reasons that differ depending onthe circuit in which the case arises, courts should use the new regularly

exposed standard rather than the old substantially similar standard.

A. The Factor-Based Approach

Most circuits use a multifactor test to decide whether to apply new lawsto pending cases.33A representative decision is the Sixth Circuits en bancdecision in Combs v. Commissioner of Social Security.34In Combs, the courtdecided whether a social security claim should be governed by the regula-

tions in effect at the time of the claim or at the time of the decision.35

WhenBarbara Combs led her claim in , obese people were presumed to bedisabled.36In , however, new regulations eliminated this presumption.37Accordingly, the Sixth Circuit held that Combs was no longer entitled tothe presumption.38

The Sixth Circuit reached the conclusion that the new regulations appliedto Combss pending case by focusing on three factors articulated inLandgraffair notice, reasonable reliance, and settled expectations.39The Sixth Circuit

explained that no reliance concerns existed, because individuals do notbecome obese or decide to le claims based on the presumption.40Relatedly,the situation presented neither a need for fair notice regarding the lawgoverning their claims nor settled expectations regarding how social securitywould assess a claim.41

Part of the courts reasoning involved the procedural nature of therebuttable presumption. The activity that the regulation affected was theadjudicators process for assessing the claim, not the ultimate question of

whether Combs was disabled or should seek a job.42

Because, prior to ,obesity had led only to a rebuttablepresumption of disability, Combs could

33Seesupranotes - and accompanying text.34 F.d (th Cir. ).35Id.at .36Id.37Id.38Id.39Id.at -;see alsosupranote and accompanying text.40Combs, F.d at .41Id.42Id.at -.


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not expect that this presumption would stand unrebutted.43Because theregulation affected only the adjudicators allocation of the burden of persua-sion, the court found it to be a process-based rule that should apply toCombss case.44

A similar analysis would apply to the amendments to the black lungbenets regulations. The party seeking to avoid the new regulations would bethe coal company who last employed the miner seeking black lung benets.45A coal company would have a very difficult time showing that it relied on thesubstantially similar standard when deciding whether and how to employworkers and an even harder time showing that it would have employedworkers differently if the regularly exposed standard had been applied.

Similarly, the need for fair notice and settled expectations is weak. The

strongest fair notice and settled expectations argument would have appliedwhen the Black Lung Benets Act rst held coal operators responsible forthe cost of their former workers black lung benets. The law held operatorsresponsible for the results of dust exposure from before a federal black lungbenet system existed.46That is, active operators had to pay miners for adisease that was previously not compensable in many states.47Yet, in Useryv. Turner Elkhorn Mining Co., the Supreme Court rejected coal operatorsdue process arguments and held that the Black Lung Benets Acts system

of allocating responsibility was a rational means of spreading the costs ofblack lung disease within the coal industry.48Since the initial passage of thelaw in , the Black Lung Benets Act and its regulations have undergonerepeated, substantial revisions, routinely upsetting existing expectations.49

43Seeid.(noting that the rebuttable presumption was not necessarily outcome-determinative).44Id.45Coal companies have an incentive to contest claims because the last company who employed

the miner and meets the Black Lung Benets Acts responsible operator test is liable for theminers (and his survivors) benets.See C.F.R. . () ([T]he operator responsiblefor the payment of benets . . . shall be the potentially liable operator . . . that most recentlyemployed the miner.).

46See generallySanders,supranote , at n. (explaining how, with the initial passage ofthe black lung benets statutes, claims led on or after July , were classied as Part Cclaims to be paid by private employers or by a fund to which the employers would contribute).

47One of Congresss explicit ndings in the Black Lung Benets Act was that few Statesprovide benets for death or disability due to [pneumoconiosis] to coal miners or their survivingdependents. U.S.C. (a) (). For a historical account of efforts to make black lungcompensable under state laws, see ALAN DERICKSON,BLACK LUNG:ANATOMY OF A PUBLIC

HEALTH DISASTER - ().48 U.S. , - ().49The Black Lung Benefits Act has been amended seven times since . SeePatient Protection

and Affordable Care Act, Pub. L. No. -, , Stat. , () (codied at U.S.C. (c)(), (l) ()); Black Lung Consolidation of Administrative ResponsibilityAct, Pub. L. No. -, Stat. () (codied as amended at U.S.C.


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As a result, neither coal operators nor claimants can claim that their expec-tations are truly settled.

Following the Combs analysis, the procedural nature of the fteen-yearpresumption also supports its retroactive application. The regulations

implementing the Byrd Amendments do not entitle a miner who can satisfythe regularly exposed standard to black lung benets, but only to a rebuttablepresumption that his disabling respiratory impairment is caused by black lungarising from his coal mine employment.50Accordingly, just as in Combs, theonly effect of the new regulations is to allocate the burden of persuasion.

Thus, under an approach using theLandgraffactors to determine whetherdue process is violated, courts should apply the regulations implementingthe Byrd Amendments to pending black lung cases.

B. The D.C. Circuits Uniform Treatment Approach

The D.C. Circuit takes a different approach to assessing retroactivitythat focuses on existing precedent in each of the federal courts of appealsrather than on the Landgraf factors. In National Mining Association v.Department of Labor, an industry trade group challenged the large-scalechanges that the Department of Labor made in December to the

regulations governing black lung benets claims.51

The National MiningAssociation challenged many of the regulations new provisions,52but twoexamples demonstrate the D.C. Circuits approach.

()); Federal Reports Elimination and Sunset Act of , Pub. L. No. -, (b)(), Stat. , (codied as amended at U.S.C. (b) ()); Black Lung BenetsRevenue Act of , Pub. L. No. -, Stat. (codied as amended in scattered sectionsof and U.S.C. ()); Black Lung Benets Reform Act of , Pub. L. No. -, Stat. () (codied as amended at U.S.C. ()); Black Lung Benets Revenue Act

of , Pub. L. No. -, Stat. () (codied as amended in scattered sections of and U.S.C. ()); Black Lung Benets Act of , Pub. L. No. -, Stat. (codied asamended at U.S.C. ()).

The regulations have also been regularly amended, with substantial changes occurring in ,, , andas discussed in this Essay. See Regulations Implementing the ByrdAmendments,supranote ; Regulations Implementing the Federal Coal Mine Health and SafetyAct of , as Amended, Fed. Reg. , (Dec. , ) (codied as amended at C.F.R.pts. , , , , ()) [hereinafter Regulations of Dec. , ]; Standards forDetermining Coal Miners Total Disability or Death Due to Pneumoconiosis; Claims for BenetsUnder Part C of Title IV of the Federal Mine Safety and Health Act, as Amended, Fed. Reg., (May , ) (codied as amended at C.F.R. pts. , ()); Review of Denied

and Pending Claims Under the Black Lung Benets Reform Act of , Fed. Reg. ,(Feb. , ) (codied as amended at C.F.R. ., . ()).

50Seesupranotes - and accompanying text.51 F.d , - (D.C. Cir. ) (discussing Regulations of Dec. , ,supranote ).52Id.at .


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First, the court approved of applying to pending cases the newly codi-ed treating physician rule, which allows an adjudicator to give weight tothe well-reasoned opinion of a treating physician over other well-reasonedmedical opinions. 53 Second, the court disapproved 54 of application in

pending cases of a standard known as the Doris Coalpresumption, namedafter the Fourth Circuit case that created the presumption:Doris Coal Co. v.Director, OWCP.55The Doris Coalpresumption is a rebuttable presumptionthat, when a miner receiving black lung benets seeks medical care for apulmonary disorder, the disorder was caused or aggravated by the minersblack lung disease rather than another cause (such as smoking).56The D.C.Circuit held that the newly codied Doris Coal presumption could beapplied to pending cases in circuits that approved of the presumption;

however, in circuits such as the Sixth, which had previously rejected theDoris Coalpresumption,57this provision of the regulations could not applyto pending cases.58

The differing treatment in pending cases of these two provisions is aresult of the D.C. Circuits uniform treatment approach. InNational MiningAssociation, the D.C. Circuit held that if all Courts of Appeals to considerthe issue agree,59then the regulations can be applied to pending casesbecause these regulations do not change[] the legal landscape.60If courts

disagree, however, then the Department of Labors decision to choose sidescan only affect new casesnot currently pending cases.61

The result of the D.C. Circuits approach appears to mean that newregulations never affect pending cases, which would continue to be governedby the preexisting precedent of the circuit in which they were led.62If thenew regulations are consistent with circuit precedent, then effectively thesame standard as before would be appliedregardless of whether the court

53Id.at -;see also C.F.R. .(d) ().54Natl Mining Assn, F.d at .55 F.d (th Cir. ).56Natl Mining Assn, F.d at ;Doris Coal Co., F.d at -;see also C.F.R.

.(e) (). See generallyEric R. Olsen, Note, Reducing the Overburden: The Doris CoalPresumption and Administrative Efficiency Under the Black Lung Benets Act, MICH. L. REV. , ().

57See, e.g., Glen Coal Co. v. Seals, F.d , - (th Cir. ) (holding that theDorisCoalpresumption was inconsistent with Sixth Circuit law).

58Natl Mining Assn, F.d at .59Id.at .60Id.at (quoting Natl Mining Assn v. U.S. Dept of the Interior, F.d , (D.C.

Cir. )).61Id.at .62Id.(disallowing retroactive application of new rules that reect a substantive change from

the position taken by any of the Courts of Appeals and is likely to increase liability).


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applies the standard via new regulations or via its preexisting precedent. Ifthe new regulations are not consistent with circuit precedent, then theregulations do not apply. In either case, the effect is that the standard fromprior precedent is applied to pending cases.

However, there are situations in which the regulations would have aneffect on pending cases under the D.C. Circuits test. The D.C. Circuitlooks to the decisions of all Courts of Appeals to consider the issue.63Butsituations can arise in which either () no court has previously consideredthe issue, or () a circuit has yet to consider the issue but would not reachthe same result as those circuits which already have. In other words, whethera new regulation affects a pending case depends largely on its timing.

The pivotal role of timing can be shown by modifying the timeline related

to theDoris Coalpresumption. First, recall the actual timeline regarding theDoris Coalpresumption:

. In , the Fourth Circuit created it;64

. In , the Sixth Circuit rejected it;65and

. In , the Department of Labor adopted it.66

Now, imagine a world in which the Sixth Circuit had not consideredwhether to adopt the Doris Coal presumption in , but where the

Department of Labor still promulgated regulations adopting the Doris Coalpresumption. Under the D.C. Circuits approach, if the Sixth Circuit wereto consider whether to apply the newly codiedDoris Coalpresumption in acase pending on or after the regulations effective date, then the SixthCircuit would be required to apply the presumption to the pending caseeven if Sixth Circuit precedent did not otherwise support the Doris Coalpresumption and even if it considered theDoris Coalpresumption to be lessthan the best interpretation of the Black Lung Benets Act.67

63Id.64SeeDoris Coal Co. v. Dir., OWCP, F.d , - (th Cir. ).65SeeGlen Coal Co. v. Seals, F.d , - (th Cir. ).66SeeRegulations of Dec. , ,supranote , at , (codied at C.F.R. .(e)

()).67 The phrase less than the best interpretation is meant to indicate that once deference

doctrines such as the Chevrondoctrine are taken into account, the court could nd the regulationsto be reasonable, even if the court considers the agencys interpretation to differ from what the

court would consider to be the best interpretation. See generallyChevron U.S.A. Inc. v. NRDC, U.S. , - () (explaining that, when reviewing agency statutory interpretationswhere Congress has not directly spoken on the issue, the court does not simply impose its ownconstruction of the statute but instead must determine whether the agencys answer is based on apermissible construction of the statute).


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However, in the world we live in, the Sixth Circuit rejected the DorisCoal presumption before the Department of Labor adopted it in the amendments to the black lung regulations. Thus, applying the D.C. Circuitsapproach, the applicable law is a question of timing: whether the new regulation

comes before or after a federal court of appeal issued its interpretation.In summary, the D.C. Circuits approach means that new regulations

willhave an effect on pending cases when a court considering the issue forthe rst time would not consider the regulations to be the best interpretationof the law, but when prior precedent () does not exist or () aligns withthe regulations.

If the D.C. Circuit applied its test to the amendments to the blacklung regulations, the court would likely determine that the regularly

exposed standard can be applied to pending cases. The regularly exposedstandard is associated with the Seventh Circuits decision inDirector, OWCPv. Midland Coal Co., which held that the substantially similar standard issatised by a miner who shows he was exposed to sufficient coal dust in hissurface mine employment.68Midlands use of the word sufficient iscircular and begs the question of what level of coal mine dust is sufficient.Functionally, the Midland standard roughly equated with a regularlyexposed standard.69 No circuit has disagreed with Midland or held that

more than regular exposure is required, so under the D.C. Circuitsapproach, the regularly exposed standard does not change[] the legallandscape and should therefore be applied to pending cases.70The Sixthand Tenth Circuits have agreed with this analysis and, applying the D.C.Circuits retroactivity test from National Mining Association, have held that

68 F.d , (th Cir. ).69See, e.g., Antelope Coal Co./Rio Tinto Energy Am. v. Goodin, F.d , (th

Cir. ) (stating thatMidlandvalidates the Departments longstanding position that consistentlydusty working conditions are sufficiently similar to underground mining conditions); Sterling v.Cent. Ohio Coal Co., No. -, WL , at *- (Ben. Rev. Bd. Feb. , ),

available at http://www.dol.gov/brb/decisions/blklung/unpublished/Feb/-.pdf, at -(holding that the miners testimony that his work was very dusty and that at the end of the shifthis clothes were very dirty was sufficient to establish that his surface mine working conditionswere comparable to underground mine working conditions); Prater v. Bevins Branch Res., Inc.,

No. -, WL , at *- (Ben. Rev. Bd. Aug. , ), available at http://www.dol.gov/brb/decisions/blklung/unpublished/Aug/-.pdf, at - (holding that the miners testimonythat he was always exposed to dust and his widows testimony that he would come home fromwork covered in dust were sufficient to establish comparable surface mine working conditions).

70Natl Mining Assn v. Dept of Labor, F.d , (D.C. Cir. ) (quoting NatlMining Assn v. U.S. Dept of the Interior, F.d , (D.C. Cir. )).


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the amendments to the black lung benets regulations are substantivelyconsistent with prior regulations and practices.71

The previous paragraph masks the burden of the D.C. Circuits approach.To determine whether a regulation changes the legal landscape,72one

must survey the legal landscape. This involves looking at how vaguestandards are actually applied as well as looking at the range of conclusionsproduced by all Courts of Appeals to consider the issue.73This Essay hasrelegated this research to footnotes below the line, but under the D.C.Circuits approach, whenever regulations affect a pending case, an adjudicatormust conduct a full circuit survey. The burden of this research cuts in theopposite direction as the purpose of many regulations, which is to simplifythe rule of decision for an adjudicator.

The burden of the D.C. Circuits approach could be justied if it addresseddue process concerns in a more thorough way than an approach based onthe Landgraf factors. However, the D.C. Circuits approach distracts fromfundamental due process concerns by elevating the temporal nature of thequestion. The arbitrariness of the emphasis on timing can be exemplied bycomparing two hypotheticals. In both situations, at least one circuit courtdisagrees with other circuits about the best interpretation of a vaguestandardfor example, as the Sixth Circuit disagreed with the Fourth

Circuit regarding the Doris Coal presumption.74Under the D.C. Circuitsapproach, if the hypothetical disagreeing court issues an opinion before theagencys regulations are nal, then the regulations will have no effect onpending cases before that court. On the other hand, if the regulations arenalized before the hypothetical disagreeing circuit issues its decision, thenthe court should apply the regulations to pending cases.

The problem is not that the test turns on timinglegal issues often turnon timing. The problem is that for the parties whose cases are pending as

case law and regulations develop, a focus on timing addresses due processconcerns in a way inferior to theLandgraffactors, which would instead focuscourts on the fundamental due process concerns of fair notice, reasonablereliance, and settled expectations. These factors encompass the concernsthat likely led the D.C. Circuit to focus on existing circuit law: if a circuithas an established practice, then it is more likely that parties have reasonably

71SeeCent. Ohio Coal Co. v. Dir., OWCP, F.d , - (th Cir. ); Goodin,

F.d at .72Natl Mining Assn, F.d at (quoting Natl Mining Assn v. U.S. Dept of the Interior,

F.d at ).73Id.at .74Seesupranote and accompanying text.


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relied on the law of the circuit and such expectations should not be disturbedwithout fair notice. If a circuit decision predates the regulations by a shortperiod of time and settled expectations do not exist, however, there is noreason to predicate the due process analysis on the relative timing of the

court decision and the regulations.In addition, the D.C. Circuits approach means that a circuit courts

opinions have an unwarranted and potentially determinative effect beyondthe circuits geographical boundaries. Consider the following timeline:

. Circuit A interprets a statute in a given way.75

. Circuit B rejects Circuit As interpretation because it is inconsistent with

Circuit B precedent.76

. The Department of Labor promulgates regulations embracing Circuit

As interpretation.77

. Circuit C must decide whether applying the Departments new regulations

to a pending case violates due process.

Under the D.C. Circuits approach, the regulations embrace of CircuitAs approach cannot provide the rule of decision for Circuit C because allCourts of Appeals to consider the issue78do not agree. Instead, Circuit Chas to proceed as if the regulations do not existand thus forego deference

doctrines, such as Chevron, which relax judicial scrutiny79

because of aCircuit B decision. This result is odd. Of course, circuits do (and should)consider the varying approaches of other circuits.80 But in the situationdescribed above, there is no reason why a Circuit B decision should dictatea due process analysis in Circuit C. Allowing Circuit Bs decision to havesuch an effect gives it unwarranted precedential weight without protectingdue process.

The D.C. Circuits approach for determining whether to retroactively

apply new regulations to pending cases gives unwarranted inuence to

75See, e.g., Doris Coal Co. v. Dir., OWCP, F.d , - (th Cir. ) (creating theDoris Coalpresumption that a miners pulmonary disorder is caused or aggravated by the minersblack lung disease).

76See, e.g., Glen Coal Co. v. Seals, F.d , - (th Cir. ) (rejecting the DorisCoalpresumption).

77See, e.g., Regulations of Dec. , ,supranote , at , (codied at C.F.R. .(e)()) (codifying theDoris Coalpresumption).

78Natl Mining Assn, F.d at (emphasis added).79Seesupranote and accompanying text.80Such considerations are appropriate, for example, in contexts such as determining whether

a right is clearly established for purposes of qualied immunity under U.S.C. ().SeePearson v. Callahan, U.S. , - () (holding that government officers were entitledto rely on precedents outside their governing circuit as a shield to personal liability under ).


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timing and out-of-circuit precedent and is unnecessarily time consuming foradjudicators. A multifactor test based on Landgrafbetter accounts for dueprocess concerns.

This is not to say a multifactor test is perfect. There are two main prob-

lems. First and most concerning, the three factors from Landgraffairnotice, reasonable reliance, and settled expectationsall describe much thesame thing. The inquiry essentially boils down to whether it would beunfair to apply current law to a party that made decisions based on priorlaw. If the decisions were not really based on the prior law, then it is notunfair. Likewise if the party should have known that the law was about thechange, then it is not unfair. Second and more generally, the Landgraffactors do not lay out a clear rule and consequently, inherent indeterminacy

exists about just how a given adjudicator will assess whether notice is fair orwhether a partys reliance on the status quo was reasonable.

Ultimately, however, no due process test will provide a universal, clear-cutrule.81As the Supreme Court stated in Morrissey v. Brewer, due process isexible and calls for such procedural protections as the particular situationdemands.82In the retroactivity context, the Court recognized in Landgrafthat [a]ny test of retroactivity will leave room for disagreement in hardcases, and is unlikely to classify the enormous variety of legal changes with

perfect philosophical clarity.83Determining how much process is due in agiven case requires interest balancing84and taking into account individualcircumstances.85The plethora of regulations, regulated activity, and variedadjudicatory contexts mean that courts should use a broad contextualapproach rather than make due process turn on coincidences like the timingof an out-of-circuit decision.

81See generallyJason Parkin, Adaptable Due Process, U.PA.L. REV. , - ()(discussing the exible nature of the due process inquiry in multiple settings).

82 U.S. , ().83Landgraf v. USI Film Products, U.S. , ().84See, e.g., Mathews v. Eldridge, U.S. , - () ([I]dentication of the specic

dictates of due process generally requires consideration of three distinct factors: . . . the private

interest . . . [,] the risk of an erroneous deprivation of such interest . . . [,] and nally, theGovernments interest . . . .).

85See, e.g., Greene v. Lindsey, U.S. , - () (holding that posting notice onapartment doors at a specic housing project did not satisfy due process because children in thehousing project were known to tear down such notices).


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CONCLUSION

The contextual nature of a due process analysis requires a multifactortest. For some regulations, such as the amendments to the regulationsgoverning federal black lung benets claims, the outcome is clear, no matterwhich of the retroactivity tests is used: there is no due process problem withapplying the amended regulations to pending claims.

The D.C. Circuit differs from most circuits in how it analyzes retroac-tivity issues for pending cases affected by new regulations. The majorityapproach, which uses a multifactor test, does a better job of taking dueprocess concerns into account, is more administrable, and does not giveundue weight to considerations such as the existence of a circuit split or thetiming of a court decision. When considering challenges to the applicationof new regulations to pending cases, courts should focus on fairness to theregulated entities while being willing to apply new regulations freely wherereliance is lacking or expectations are not settled.

Preferred Citation: Evan Barret Smith,New Regulations and Pending Cases, U. PA. L. REV. ONLINE (), http://www.pennlawreview.com/

online/-U-Pa-L-Rev-Online-.pdf.

Evan Smith - New Regulations and Pending Cases

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