Consolidation Coal Co. v. Williams - Opposition

No. 06-806

In the Supreme Court of the United States

CONSOLIDATION COAL COMPANY, PETITIONER

v.

BILLY D. WILLIAMS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT
IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

JONATHAN L. SNARE
Acting Solicitor of Labor

NATHANIEL I. SPILLER
Assistant Deputy Solicitor

EDWARD D. SIEGER
Attorney
Department of Labor
Washington, D.C. 20210

QUESTION PRESENTED

The Black Lung Benefits Act provides that "[a]ny claim for benefits by a miner * * * shall be filed within three years after * * * a medical determination of total disability due to pneumoconiosis." 30 U.S.C. 932(f)(1). The question presented is whether, in a subsequent claim for benefits under the Act, the statute of limitations is triggered by a medical diagnosis that pre-dates a prior denial of such benefits.

In the Supreme Court of the United States

No. 06-806

CONSOLIDATION COAL COMPANY, PETITIONER

v.

BILLY D. WILLIAMS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT
IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-29a) is reported at 453 F.3d 609. The decisions and orders of the Benefits Review Board (Pet. App. 30a-56a) and ad ministrative law judge (Pet. App. 57a-80a) are unre ported.

JURISDICTION

The judgment of the court of appeals was entered on July 13, 2006. A petition for rehearing was denied on September 8, 2006 (Pet. App. 1a-2a). The petition for a writ of certiorari was filed on December 6, 2006. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Black Lung Benefits Act (the Act) provides compensation "to coal miners who are totally disabled due to pneumoconiosis." 30 U.S.C. 901(a). A miner seeking disability benefits must establish that he has pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, that he is totally disabled, and that pneumoconiosis contributes to the total disability. 20 C.F.R. 725.202(d). Pneumoconiosis is a latent and progressive disease; its symptoms may appear and worsen gradually. See Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 139, 151 (1987); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 7-8 (1976); 20 C.F.R. 718.201(c). The Secretary of Labor, who is responsible for administering the Act, 30 U.S.C. 936(a), therefore has promulgated rules allowing miners to make a subse quent claim at least one year after the denial of a prior claim for black lung benefits. 20 C.F.R. 725.309(d). To preserve the finality of the prior determination, a subse quent claim will be denied unless "the claimant demon strates that one of the applicable conditions of entitle ment," upon which the prior denial was based, "has changed since * * * the order denying the prior claim became final." Ibid. At issue in this case is the applica tion of the Act's statute of limitations to subsequent claims. The Act provides that "[a]ny claim for benefits by a miner under this section shall be filed within three years after * * * a medical determination of total dis ability due to pneumoconiosis." 30 U.S.C. 932(f)(1); see 20 C.F.R. 725.308 (adding requirement that medical de termination be "communicated to the miner").

2. Respondent Billy D. Williams worked as a coal miner for at least 30 years, and worked for petitioner Consolidation Coal Co. from 1957 until he retired in 1987. Pet. App. 4a, 59a. In July 1995, Williams filed a claim for black lung benefits with the Department of La bor's Office of Workers' Compensation Programs (OWCP), which makes initial determinations on such claims. Id. at 4a; see 20 C.F.R. 725.351, 725.401-725.420. In November 1995, Williams received a letter from Dr. Jerome J. Lebovitz, which stated that Williams "was permanently and totally disabled secondary to the entity of Coal Worker's Pneumoconiosis." Pet. App. 4a (inter nal quotation marks omitted); see id. at 32a n.1; App., infra, 2a. OWCP denied Williams's claim in January 1996 on the ground that Williams failed to establish that he had pneumoconiosis and that he was totally disabled as a result of pneumoconiosis. Pet. App. 4a, 32a n.1, 71a.1

In June 2001, Williams filed a second claim for bene fits. Pet. App. 4a, 31a-32a, 61a. In 2002, OWCP found Williams entitled to benefits, and petitioner requested a hearing before an administrative law judge (ALJ). Id. at 32a; see 20 C.F.R. 725.421(a) (providing for ALJ adju dication of contested cases). Petitioner filed a motion to dismiss the second claim on the ground that it was barred by the Act's three-year statute of limitations, which commences upon "a medical determination of total disability due to pneumoconiosis." 30 U.S.C. 932(f)(1). Petitioner contended that the limitations period began with the November 1995 letter from Dr. Lebovitz, and that Williams could not bring his claim almost six years later. Pet. App. 4a; see id. at 32a n.1, 65a.

3. a. The ALJ denied petitioner's motion to dismiss. App., infra, 1a-4a. In accordance with Wyoming Fuel Co. v. Director, OWCP, 90 F.3d 1502 (10th Cir. 1996), the ALJ found that the 1996 denial of Williams's claim repudiated Dr. Lebovitz's November 1995 diagnosis of totally disabling pneumoconiosis and "nullified" that determination's "ability to trigger the statute of limita tions." App., infra, 2a. The ALJ also took "official no tice" of the fact that the 1995 medical determination was "unreasoned and undocumented and would almost cer tainly not have changed the Department of Labor's dis position of the [1995] claim." Id. at 3a.

In a later decision on the merits, the ALJ denied peti tioner's renewed motion to dismiss for the same reasons. Pet. App. 69a-70a. Based on a review of all the medical evidence submitted after Williams filed his second claim, the ALJ concluded that Williams had established a change in his medical condition and was now totally dis abled by pneumoconiosis. Id. at 70a-80a.2

b. The Benefits Review Board affirmed the ALJ's decision. Pet. App. 30a-56a; see 30 U.S.C. 921(b) (Board reviews ALJ decisions); 20 C.F.R. 725.481, 801.102(a)(6) (same). The Board agreed with the ALJ that Dr. Lebovitz's November 1995 report did not trigger the three-year statute of limitations. Pet. App. 40a. The Board also upheld the ALJ's award of benefits on the merits. Id. at 51a-54a.

4. The court of appeals denied the petition for review of the Board's decision. Pet. App. 3a-29a. On the stat ute of limitations issue, the court held that Dr. Lebovitz's November 1995 report did not trigger the three-year statute of limitations on Williams's June 2001 subsequent claim. Id. at 11a-19a. Citing its holding in Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358 (4th Cir. 1996) (en banc), cert. denied, 519 U.S. 1090 (1997), the court of appeals held that the prior denial of Wil liams's claim for black lung benefits had to be accepted as a final and correct determination that Williams was not totally disabled by pneumoconiosis on the date of the denial. Pet. App. 13a-14a. The court therefore treated the 1995 physician's report, "for legal purposes, as a misdiagnosis in light of the denial of Williams's first claim." Id. at 14a. Because the report "related solely to Williams's condition in 1995, [it] could not have sus tained a subsequent claim that his condition had materi ally worsened since the initial denial of benefits in 1996." Id. at 17a-18a (emphasis in original). The court there fore concluded that the 1995 report was legally irrele vant to Williams's subsequent claim, and could not trig ger the statute of limitations for that claim. Id. at 14a, 18a.

The court further explained that its decision was con sistent with the Black Lung Benefits Act in three re spects. First, the court reasoned that the latent and progressive nature of pneumoconiosis required that a claimant should be free to reapply for benefits if his first filing was premature. Pet. App. 15a-16a. Second, the requirement that a miner prove a material change in conditions on a subsequent claim showed, in the court's view, that "[i]t would be illogical and inequitable to hold that a diagnosis that could not sustain a subsequent claim could nevertheless trigger the statute of limita tions for such a claim." Id. at 18a. Finally, the court concluded that allowing a misdiagnosis to bar a future claim could defeat the statute's purpose by making min ers reluctant to seek medical advice in the early stages of pneumoconiosis. Ibid.

ARGUMENT

The court of appeals' decision is correct and does not conflict with any decision of this Court or any other court of appeals. Further review therefore is not warranted.

Petitioner argues (Pet. 7-13) that the statute of limi tations in the Black Lung Benefits Act begins running for all claims upon communication to the miner of the first medical diagnosis of totally disabling pneumoconio sis. But the statute provides that "[a]ny claim for bene fits by a miner under this section shall be filed within three years after * * * a medical determination of to tal disability due to pneumoconiosis." 30 U.S.C. 932(f)(1) (emphasis added). Petitioner's interpretation requires the addition of limiting language to the plain terms of the statute.

The statute of limitations nevertheless may be am biguous as applied to the particular facts of this case because it does not specify which medical determination triggers the limitations period when, as here, there has been an intervening denial of benefits. Petitioner's pro posed application of the statute of limitations in those circumstances, however, conflicts with the "special pre clusion rules that apply in this area." Midland Coal Co. v. Director, OWCP, 358 F.3d 486, 489 (7th Cir. 2004). Because pneumoconiosis is a latent and progressive dis ease, the Director's regulations-which petitioner does not challenge-allow a miner to file a subsequent claim if his first claim was premature. 20 C.F.R. 725.309(d). As the Fourth Circuit has noted, "[a] new black lung claim is not barred, as a matter of ordinary res judicata, by an earlier denial, because the claims are not the same. * * * [R]es judicata does not apply if the issue is claimant's physical condition or degree of disability at two entirely different times." Lisa Lee Mines v. Direc tor, OWCP, 86 F.3d 1358, 1362 (1996) (en banc), cert. denied, 519 U.S. 1090 (1997). That is so because "[t]he health of a human being is not susceptible to once-in-a- lifetime adjudication." Ibid.

To conform serial black lung claims to traditional principles of issue and claim preclusion, however, those courts of appeals which have considered the problem have unanimously held that a prior denial of benefits must be "presumed to have been correct when made and to continue to be correct through time." Lisa Lee Mines, 86 F.3d at 1363. See Peabody Coal Co. v. Spese, 117 F.3d 1001, 1008-1009 (7th Cir. 1997) (en banc); Lovilia Coal Co. v. Harvey, 109 F.3d 445, 453-454 (8th Cir. 1997), cert. denied, 523 U.S. 1059 (1998); Wyoming Fuel Co. v. Director, OWCP, 90 F.3d 1502, 1508-1509 (10th Cir. 1996); Labelle Processing Co. v. Swarrow, 72 F.3d 308, 313-314 (3d Cir. 1995); Sharondale Corp. v. Ross, 42 F.3d 993, 998-999 (6th Cir. 1994). A subsequent claimant therefore is "precluded from collaterally at tacking the prior denial of benefits," but he "may file a new claim, asserting that he is now eligible for benefits because he has become totally disabled due to coal miner's pneumoconiosis and that his disability occurred subsequent to the prior adjudication." Labelle Process ing, 72 F.3d at 314. The Director's regulations codify that understanding. See 20 C.F.R. 725.309(d) ("A subse quent 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.").

These principles govern the timeliness of subsequent black lung benefit claims no less than the merits of such claims. The rejection of a prior claim on the ground that the claimant was not totally disabled by pneumoconiosis must be treated as correct and final with respect to that issue at that time. The court of appeals correctly noted in this case that the denial of Williams's 1996 claim ren dered his 1995 diagnosis a legal nullity-a "misdiag nosis" that had "no effect on the statute of limitations for [Williams's] second claim." Pet. App. 14a.3 The Tenth Circuit reached a similar result in Wyoming Fuel, supra. In that case, the court held that "a final finding by an Office of Workers' Compensation Program adjudi cator that the claimant is not totally disabled due to pneumoconiosis repudiates any earlier medical determi nation to the contrary and renders prior medical advice to the contrary ineffective to trigger the running of the statute of limitations." 90 F.3d at 1507.

Petitioner argues (Pet. 6) that the law of the Sixth Circuit is in conflict with that of the Fourth and Tenth Circuits.4 Petitioner is mistaken. In Tennessee Consoli- dated Coal Co. v. Kirk, 264 F.3d 602 (2001), the Sixth Circuit held that several prior reports relied upon by an employer seeking to foreclose a subsequent claim "failed to demonstrate that a diagnosis of total disability due to pneumoconiosis was made." Id. at 607. The statement petitioner cites-that "[m]edically supported claims, even if ultimately deemed 'premature' because the weight of the evidence does not support the elements of the miner's claim, are effective to begin the statutory period," id. at 608-is dicta. The claim at issue in Kirk was not "[m]edically supported." Id. at 607. The Sixth Circuit has recognized as such in a subsequent unpub lished decision. Peabody Coal Co. v. Director, OWCP, 48 Fed. Appx. 140, 147 (2002). In that case, the court reached the same result as the Fourth and Tenth Cir cuits: "[I]f a miner's claim is ultimately rejected on the basis that he does not have the disease, this finding nec essarily renders any prior medical opinion to the con trary invalid, and the miner is handed a clean slate for statute of limitation purposes." Id. at 146.

Finally, petitioner's interpretation of the statute of limitations would frustrate the Director's regulatory framework for considering subsequent claims and the purposes of the Black Lung Benefits Act. Petitioner rightly does not contend that the statute of limitations precludes subsequent claims. Cf. Lisa Lee Mines, 86 F.3d at 1363 n.9. But requiring miners to bring all claims within three years after their first diagnosis would bar most subsequent claims. The court of ap peals' decision also is more consistent with the latent and progressive nature of pneumoconiosis because it prevents a misdiagnosis from foreclosing relief when a miner's symptoms develop at a later time. Contrary to petitioner's assertion (Pet. 14), the decision below does not render the statute of limitations "meaningless." A miner who receives a diagnosis of totally disabling pneu moconiosis and does nothing for more than three years will not be eligible for benefits.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

JONATHAN L. SNARE
Acting Solicitor of Labor

NATHANIEL I. SPILLER
Assistant Deputy Solicitor

EDWARD D. SIEGER
Attorney
Department of Labor

FEBRUARY 2007

1 The 1996 denial was based largely on the results of an OWCP- ordered physical examination of Williams, which was carried out by Dr. Andrzej J. Jaworski. Pet. App. 4a, 32a n.1. The Benefits Review Board in this case concluded that the Lebovitz letter referred to above was not in the record before OWCP. Ibid.

2 The ALJ also ruled against petitioner on a number of evidentiary issues and refused to disqualify himself for alleged bias. Pet. App. 66a- 70a. The Benefits Review Board affirmed the ALJ's rulings on those issues, id. at 41a-51a, and the court of appeals affirmed, id. at 19a-26a. Petitioner does not seek review of those rulings.

3 As the court of appeals pointed out, the determination that Williams did not have totally disabling pneumoconiosis in 1996 is "final and correct[] regardless of whether the DOL reviewed Dr. Lebovitz's diagnosis in adjudicating the claim." Pet. App. 14a.

4 Petitioner also argues (Pet. 7, 10-11) that the decision in this case is in conflict with the Fourth Circuit's decision in Island Creek Coal Co. v. Henline, 456 F.3d 421 (2006). Conflicts within a circuit's law are not for this Court to resolve. See Wisniewski v. United States, 353 U.S. 901, 902 (1957). Even so, there is no conflict. Henline addressed the question whether a "medical determination" had to be in writing in order to trigger the statute of limitations, a question not presented in this case. 456 F.3d at 425.

1. APPENDIX

[Seal Omitted]

UNITED STATES DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
11870 Merchants Walk, Suite 204
Newport News, Va 23606
(757) 591-5140 (TEL)
(757) 591-5150 (FAX)

Case No.: 2002-BLA-05329

IN THE MATTER OF: BILLY D. WILLIAMS, CLAIMANT

v.

CONSOLIDATION COAL COMPANY, EMPLOYER,

AND

DIRECTOR, OFFICE WORKERS' COMPENSATION
PROGRAMS, PARTY-IN-INTEREST

Issue Date: 16 Apr. 2004

ORDER DENYING RENEWED MOTION FOR SUMMARY JUDGMENT AND SETTING A BRIEFING SCHEDULE

Employer, Consolidation Coal Company, renews its motion for summary judgment first made at the hearing in the captioned case (Tr. 55-6). Employer bases its mo tion on the statute of limitations in 30 U.S.C. 932(f) and 20 C.F.R. 725.308, which require a miner to file a claim within three years following a medical determination of

his total disability due to pneumoconiosis. Exceptions can be made for good cause. Id.

The facts are not in dispute. Mr. Williams has twice filed Black Lung claims-on July 31, 1995 and June 11, 2001 (DE 1, 3). Claimant wrote to Claims Examiner Juliette DeMoss in December 2001 forwarding to her a November 9, 1995 medical report of Dr. Jerome J. Lebowitz, which report Claimant's attorney, Anthony Kovach, had forwarded to Claimant. Attorney Kovach had explained to Mr. Williams in 1995 that Dr. Lebowitz's report (DE1) definitely stated that Claimant had black lung disease and was totally disabled there from (Tr. 46-7). Employer contends that Claimant's learning about this letter (sometime in 1995) triggered the running of the statute of limitations both for Claim ant's initial claim and his current or "duplicate" claim.

For the following reasons, I am denying Employer's motion:

1. The Department of Labor denied Mr. Williams' first claim after the issuance of Dr. Lebowitz' letter and after its contents were made known to Claimant. The court in Wyoming Fuel Co. v. Director, OWCP, 90 F.3d 1502, 1507 (10th Cir. 1996) held that a final order by an Office of Workers' Compensation Program adjudicator that a claimant is not totally disabled due to pneumoco niosis "repudiates any earlier medical determination to the contrary and renders prior medical advice ineffec tive to trigger the running of the statute of limitations." Thus, under Wyoming Fuel Co, the Department of La bor's denial of Mr. Williams' first claim on January 11, 1996, nullified the communication by Dr. Lebowitz inso far as its ability to trigger the running of the statute of limitations is concerned.

2. I understand that there is contrary precedent in the Sixth Circuit. See Kirk v. Consolidated Coal Co., 264 F.3d 602 (6th Cir. 2001). However, the persuasive ness of this precedent is lessened considerably by a sub sequent unpublished decision to the contrary in the same circuit. Peabody Coal Co. v. Director, OWCP (Dukes), No. 01-3043 (6th Cir. Oct. 2, 2002) (unpub.).

3. Employer seeks to distinguish Wyoming Fuel Co. from the present case in that, unlike in Wyoming Fuel Co., the Department of Labor claims examiner here did not have the doctor's letter before it when it denied the claim. I regard this as a distinction without a significant difference because there is no showing that the Depart ment of Labor would have reached a different result in the present case had it been informed of Dr. Lebowitz's opinion. Indeed, I take official notice of the fact that Dr. Lebowitz's opinion is unreasoned and undocumented and would almost certainly not have changed the Depart ment of Labor's disposition of the claim.

4. At the time of Mr. Williams' filing his second claim, the law in effect as enunciated by the Benefits Review Board in Faulk v. Peabody Coal Co., 14 BLR 1- 18 (1990) was to the effect that the statute of limitations in 20 C.F.R. 725.308 did not apply to duplicate claims. Therefore, to rule in Employer's favor on this motion would be to retroactively apply present law concerning the effect of that regulation on duplicate claims. I de cline to do so and find that justice does not require me to.

For the reasons stated above, Employer's renewed motion for summary judgment is DENIED. Because Employer has stated that it will not comply with my dis covery order, there is no point in further delaying the setting of a briefing schedule. Therefore, it is hereby ORDERED that briefs in the captioned case are due May 3, 2004.

/s/ FLETCHER E. CAMPBELL, JR.
FLETCHER E. CAMPBELL, JR.
Administrative Judge

FEC/Ipr
Newport News, Virginia