BRIDGER COAL COMPANY, Pеtitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent, and Delores Ashmore (Widow of and on behalf of Merrill Lambright), Claimant.
No. 11-9531
United States Court of Appeals, Tenth Circuit
Feb. 28, 2012
669 F.3d 1183
In sum, the Escrow Statute and Complementary Act regulate tobacco product manufacturers. Neither MCN nor any of its businesses manufacture such products. The State enforces these laws by seizing cigarettes outside Indian country. The alleged ancillary effect of these laws based on the State‘s off-Indian country enforcement of them, is that MCN‘s members cannot buy contraband cigarettes. But such an indirect effect does not establish a preemption or an infringement of tribal sovereignty claim. MCN therefore fails to state a plausible claim that the Escrow Stаtute and Complementary Act are preempted by federal law or infringe on its tribal sovereignty.
V. CONCLUSION
We hold that the district court had subject matter jurisdiction over MCN‘s claims against the individual state defendants under Ex parte Young. We further hold that MCN‘s complaint fails to state a plausible claim. We need not determine whether the district court has subject matter jurisdiction over MCN‘s claims against the OTC because MCN‘s failure to state a plausible claim against the individual state defendants foreordains the failure of its claims against the OTC. We affirm the district court‘s judgment dismissing MCN‘s complaint for failure to state a claim under
Barry H. Joyner, Attorney (M. Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor, and Patricia M. Nece, Counsel for Appellate Litigation, with him on the brief), Office of the Solicitor, U.S. Department of Labor, Washington, D.C., for Respondent.
MURPHY, Circuit Judge.
I. INTRODUCTION
Under the Black Lung Benefits Act (“the Act“), a coal miner who is totally disabled due to pneumoconiosis1 from coal mine employment is entitled to lifetime benefits.
II. BACKGROUND
A. Statutory Framework
To be entitled to lifetime benefits under the Act, a miner must prove (1) he suffers from pneumoconiosis; (2) which arose out of coal mining employment; and (3) caused the miner to be totally disabled.
Simple pneumoconiosis ... is generally regarded by physicians as seldom productive of significant respiratory impairment. Complicated pneumoconiosis, generally far more serious, involves progressive massive fibrosis as a complex reaction to dust and other factors (which may include tuberculosis or other infection), and usually produces significant pulmonary impairment. ... This disability limits the victim‘s physical capabilities, may induce death by cardiac failure, and may contribute to other causes of death.
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 7 (1976) (footnote omitted). The Act does not use the term “complicated pneumoconiosis.” However,
If a miner is suffering or suffered from a chronic dust disease of the lung which (A) when diagnosed by chest roentgenogram, yields one or more large opacities (greater than one centimeter in diameter) and would be classified in category A, B, or C in the International Classification of Radiographs of the Pneumoconioses by the International Labor Organization, (B) when diagnosed by biopsy or autopsy, yields massive lesions in the lung, or (C) when diagnosis is made by other means, would be a condition which could reasonably be expected to yield results described in clause (A) or (B) if diagnosis had been made in the manner prescribed in clause (A) or (B), then there shall be an irrebuttable presumption that he is totally disabled due to pneumoconiosis or that his death was due to pneumoconiosis, or that at the time of his death he was totally disabled by pneumoconiosis....
Regarding the second of these, the Act does not define the term “massive lesions” for purposes of applying clause (B) of the § 921(c)(3) presumption. Two other circuits have considered the showing necessary for a claimant to obtain the benеfit of the presumption using autopsy evidence. The Fourth Circuit has held § 921(c)(3) implicitly requires an “equivalency determination,” i.e., a claimant seeking to prove complicated pneumoconiosis under the “massive lesions” clause of § 921(c)(3) must show that such lesions would show up as one-centimeter-or-greater opacities if detectable by chest x-ray. See, e.g., E. Associated Coal Corp. v. Dir., Office of Workers’ Comp. Programs, 220 F.3d 250, 255-56 (4th Cir. 2000), Double B Mining, Inc. v. Blankenship, 177 F.3d 240, 243 (4th Cir. 1999). The Eleventh Circuit, by contrast, rejects the “equivalency determina-
B. Lambright‘s Claim
Lambright filed a claim for black lung benefits on March 19, 1998, while he was still employed as a coal mine welder by Bridger. His last day of work was June 26, 1998, and he died on January 31, 2002. Upon Lambright‘s death, Dr. Michael J. Dobersen, the medical examiner for Arapahoe County, Colorado, conducted an autopsy. Dr. Dobersen is board certified in anatomic, clinical, and forensic pathology. His macroscopic examination of Lambright‘s lungs revealed “extensive anthracosis with focal irregular areas of anthracotic scarring, some of which measure up to 2½ inches in greatest dimension.” He attributed Lambright‘s death “to complications of complicated coal workers’ pneumoconiosis (progressive massive fibrosis) also known as black lung disease. A component of silicosis was also apparent. Evidence of severe cor pulmonale was also apparent.”
Bridger retained two pathologists to review Dr. Dobersen‘s findings, Drs. Erika Crouch and Joseph Tomashefski. Dr. Crouch is board certified in anatomic pathology. She reviewed Dr. Dobersen‘s report, autopsy slides, and other of Lambright‘s medical records before issuing an opinion on December 3, 2002. Dr. Crouch concluded Lambright suffered from “simple coal workers’ pneumoconiosis and simple siderosis arising from welding as well as centriacinar emphysema, acute bronchopneumonia, and changes consistent with severe pulmonary hypertension.” Reviewing the autopsy slides, she observed “no areas of ‘massive fibrosis or complicated siliсosis‘” and described the lesions she did observe as “relatively small in size and number.” Dr. Crouch ruled out Lambright‘s pneumoconiosis as a significant contributing factor to his death. Dr. Tomashefski is board certified in clinical and anatomical pathology. He concluded Lambright suffered from mild simple coal workers’ pneumoconiosis and mild centriacinar emphysema, and that the simple pneumoconiosis did not cause or contribute to Lambright‘s death. Dr. Tomashefski ruled out complicated pneumoconiosis because the largest coalescent, pneumoconiotic lesion he observed from the autopsy slides measured less than two centimeters in diameter, which was below the minimum size required for a diagnosis of complicated pneumoconiosis. See
The 2005 ALJ decision credited the opinion of Dr. Dobersen over the contrary opinions of Drs. Crouch and Tomashefski for four reasons. First, Dr. Dobersen was the prosector, and therefore the only reviewing pathologist who made first-hand observations of Lambright‘s lungs.3 Second, Dr. Dobersen‘s report provided very specific measurements and detailed findings, including the 2.5 inch (6.35 cm) lesion. Third, the ALJ concluded Dr. Dobersen demonstrated understanding of the concepts of simple and complicated pneumoconiosis. Finally, the ALJ concluded Dr. Dobersen had superior qualifications because he was board certified in more sub-disciplines of pathology than Drs. Crouch or Tomashefski. The ALJ also reviewed the medical evidence, including chest x-rays, CT-scans, hospitalization and treat-
C. Subsequent Proceedings
Bridger appealed the 2005 ALJ decision to the Board. Pursuant to
In a 2008 decisiоn on remand, the ALJ concluded Ashmore failed to prove either total disability or death due to pneumoconiosis by a preponderance of the evidence. The 2008 ALJ decision relied principally on the opinions of Drs. Crouch, Tomashefski, and Tuteur.4 Those opinions were credited over the contrary opinion of Dr. Dobersen because, the ALJ concluded, the 2006 decision of the Board “discredited the opinion of Dr. Doberson [sic] that the pathology slides showed complicated pneumoconiosis as the Board held that there is no evidence in the record, which would include the death certificate and autopsy report of Dr. Doberson [sic], which would support a finding of complicated pneumoconiosis.” On the lifetime claim, reviеwing the medical evidence, the ALJ found Lambright suffered from simple pneumoconiosis and cor pulmonale, but concluded the pneumoconiosis was insufficient to have caused his disabling pulmonary impairment. The ALJ similarly resolved the survivor claim, concluding Lambright‘s simple pneumoconiosis was insufficient to have caused or contributed to his death.
In 2009, Ashmore, proceeding pro se, appealed the 2008 ALJ decision. By this time, the Eleventh Circuit had decided Pittsburg & Midway, which created a circuit split on the issue of whether equivalency determinations were necessary in applying the irrebuttable presumption of pneumoconiosis set forth in § 921(c)(3) and its implementing regulation,
Bridger filed a motion for reconsideration and suggestion for reconsideration en banc of the 2009 panel decision, which the full five-member Board considered. The en banc panel could not reach a disposition in which at least three permanent members concurred. Two members of the en banc Board would have affirmed the 2009 panel decision, two members of the en banc Board would have reversed the 2009 panel decision, and one member of the en banc Board would have affirmed the 2009 panel‘s adoption of the Eleventh Circuit‘s § 921(c)(3) standard but remanded the case to the ALJ to apply it in the first instance. Therefore, pursuant to
III. DISCUSSION
A. Standard of Review
Bridger‘s appeal presents issues of statutory and regulatory interpretation as well as challenges to the factual findings of the ALJ. The issues of statutory and regulatory interpretation are reviewed de novo. Andersen v. Dir., Office of Workers’ Comp. Programs, 455 F.3d 1102, 1103 (10th Cir. 2006). However, “[o]ur review of alleged errors of law, and the effect they may have had on the benefits decision, must be made in light of the premise that the Act is intended to be remedial in nature, and doubts should be resolved in favor of the disabled miner or his or her survivors.” Bosco v. Twin Pines Coal Co., 892 F.2d 1473, 1476 (10th Cir. 1989) (quotations and alterations omitted). In reviewing the challenges to the factual findings of the ALJ, this court‘s task is to determine whether the Board properly concluded the decision of the ALJ was supported by substantial evidence. Energy W. Mining Co., 555 F.3d at 1217. On substantial evidence review, the court “will not reweigh the evidence considered by the agency, but only inquire into the existence of evidence in the record that a reasonable mind might accept as adequate to support its conclusion.” Id. (quotation and emphasis omitted). “Additionally, the task of weighing conflicting medical evidence is within the sole province of the ALJ.” Hansen v. Director, Office of Workers’ Comp. Programs, 984 F.2d 364, 368 (10th Cir. 1993).
B. Scope of Board‘s Authority
Bridger first argues the 2009 panel decision is invalid because a majority of the full Board did not vote for its outcome. Because the 2009 panel decision was based on a 2-1 majority, and because no additional members of the en banc Board voted to affirm the panel decision, Bridger argues, it would be improper to allow two members of a five-member board to control the outcome of the case. Bridger‘s argument misconstrues the statutory structure governing the Board‘s review authority. The Board is composed of five members and is empowered to “hear and determine appeals ... from decisions with respect to claims of employees” under the Act.
Bridger next argues the 2009 panel lacked authority to review and reinstate the 2005 ALJ decision after it concluded its prior reversal of that decision, and the subsequent 2008 ALJ decision on remand, was erroneous. We reject this argument.
The Board shall be authorized to hear and determine appeals raising a substantial question of law or fact taken by any party in interest from decisions with respect to claims of employees under this chapter and the extensions thereof. The Board‘s orders shall be based upon the hearing record. The findings of fact in the decision under review by the Board shall be conclusive if supported by substantial evidence in the record considered as a whole.
The relevant regulations further describe the scope of the Board‘s review authority:
The Benefits Review Board is not empowered to engage in a de novo proceeding or unrestricted review of a case brought before it. The Board is authorized to review the findings of fact and conclusions of law on which the decision or order appealed from was based. Such findings of fact and conclusions of law may be set aside only if they are not, in the judgment of the Board, supported by substantial evidence in the record considered as a whole or in accordance with law.
Bridger also argues the Board was precluded by the law of the case doctrine from reconsidering its prior approach to the complicated pneumoconiosis issue. Initially, Bridger cites no authority, and the court is unaware of any, indicating the law of the case doctrine applies between administrative courts. See Anderson v. U.S. Dep‘t of Labor, 422 F.3d 1155, 1180 n. 50 (10th Cir. 2005). Assuming without deciding law of the case does apply, Bridger overstates the breadth of the doctrine. Bridger characterizes the law of the case doctrine as a rigid rule that “an issue once litigated and decided in a case is put to an end,” absent an intervening change in controlling law which dictates a different result. Bridger is correct that, “[g]enerally, the ‘law of the case’ doctrine dictates that prior judicial decisions on rules of law govern the same issues in subsequent phases of the same case.” Been v. O.K. Indus., Inc., 495 F.3d 1217, 1224 (10th Cir. 2007). However, “the rule is a flexible one that allows courts to depart from erroneous prior rulings, as the underlying policy of the rule is one of efficiency, not restraint of judicial power....” Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 823 (10th Cir. 2007) (citation omitted); see also United States v. U.S. Smelting Ref. & Mining Co., 339 U.S. 186, 199 (1950) (characterizing the law of the case doctrine as “only a discretionary rule of practice“).
Even if it were bound by the law of the case doctrine, therefore, the Board appropriately exercised its discretion to depart from the doctrine here. Intervening binding law from the controlling circuit is not the only circumstance in which it is reasonable for the Board to reconsider its рrior interpretation of governing law. The development of a circuit split on an issue central to the Board‘s resolution of a case that occurs during the pendency of that case is a legitimate reason for the Board to reconsider prior rulings.
C. Standard for Applying 30 U.S.C. § 921(c)(3) and 20 C.F.R. § 718.304
This court has not considered what showing is necessary for a claimant, like Ashmore, who relies on the “massive lesions” prong of § 921(c)(3) of the Act to claim entitlement to the irrebuttable presumption of disability and/or death due to pneumoconiosis. Neither the Act itself nor its implementing regulations define the term “massive lesions.” Under the approach of the Fourth Circuit,9 to obtain
Because clauses (A), (B), and (C) of § 921(c)(3) are three different ways of diagnosing complicated pneumoconiosis, in construing the requirements of each, one must perform equivalency determinations to make certain that regardless of which diagnostic technique is used, the same underlying condition triggers the irrebuttable presumption. In other words, the same condition that triggers the presumption by producing opacities greater than one centimeter in diameter on an x-ray should be considered “massive lesions” under the statute if diagnosed through biopsy. By explicitly referencing prongs (A) and (B) аs guides, prong (C) of the statute requires “plainly that equivalency determinations shall be made.” Logic commands that prongs (A) and (B) be similarly equivalent. Any other rule would lead to the irrational result that the determination of whether a miner has totally disabling pneumoconiosis could turn on the method of diagnosis rather than on the severity of his disease.
Because prong (A) sets out an entirely objective scientific standard, it provides the mechanism for determining equivalencies under prong (B) or prong (C). In prong (A), Congress mandated that the condition that triggers the irrebuttable presumption is one that creates, on an x-ray, at least one opacity greater than one centimeter in diameter. When that condition is diagnosed by biopsy rather than x-ray, it must therefore be determined whether the biopsy results show a condition that would produce opacities of greater than one centimeter in diameter on an x-ray. That is to say, “massive lesions,” as described in prong (B), are lesions that when x-rayed, show as opacities greater than one centimeter in diameter.
Id. (citation omitted).
The Eleventh Circuit described “at least four basic shortcomings” with the equivalency determination requirement of the Fourth Circuit. Pittsburg & Midway, 508 F.3d at 987 n. 7. First, the Fourth Circuit‘s approach conflates clause (A) with clause (B) of § 921(c)(3). Congress used the term “or” when setting forth the three ways complicated pneumoconiosis could be established under § 921(c)(3), indicating alternatives were intended. Id. Second, reading clause (B) to require an equivalency determination would make it superfluous in light of clause (C), which makes the irrebuttаble presumption applicable where a claimant shows, by “other means,” a condition which would be expected to yield results described in parts (A) and (B). Id. Third, citing Supreme Court precedent and the legislative history of the Act, the Eleventh Circuit noted autopsy examinations frequently reveal a greater prevalence of pneumoconiosis than x-ray examinations. Id. (citing Usery, 428 U.S. at 32). Fourth, the equivalency determination requirement appears to conflict with the Act‘s mandate that claims not be denied solely on the basis of negative x-ray results. Id. (citing
Bridger argues the 2005 ALJ decision was not supported by substantial evidence even if no equivalency determination is required. This court disagrees. The 2005 ALJ decision involved the weighing of conflicting medical evidence, i.e., the weighing of the opinion of Dr. Dobersen against the contrary opinions of Drs. Crouch, Tomashefski, and Tuteur. Such weighing is the sole province of the ALJ and cannot be disturbed by this court on substantial evidence review. Hansen, 984 F.2d at 368. As Bridger acknowledges, Lambright‘s medical history was extremely complex. The opinion of the ALJ reviewed Lambright‘s medical history and included a detailed discussion of the opinions of Drs. Dobersen, Crouch, Tomashefski, and Tuteur, as well as more than a dozen other doctors who either treated or examined Lambright or analyzed his medical records. The ALJ found the autopsy evidence the most compelling and credited the opinion of Dr. Dobersen over the contrary opinions of Drs. Crouch and Tomashefski.
The ALJ provided four reasons for preferring the opinion of Dr. Dobersen: his board certifications in the most sub-disciplines of pathology, his position as prosector, his detailed findings, and his demonstrated understanding of complicated and simple pneumoconiosis. Dr. Dobersen‘s opinion included an observation of a 2.5 inch (6.35 cm) lesion of anthracotic scarring in Lambright‘s lung, which was consistent with one of Bridger‘s doctor‘s observation of a “large node” on earlier CT scans. Although Bridger claims this observation was unsupported by Drs. Crouch and Tomashefski, Bridger does not attempt to argue such a lesion would not qualify as “massive” under
D. Benefits Award Period
Bridger challenges the ALJ‘s award of benefits on Lambright‘s lifetime
The exact month Lambright‘s simple pneumoconiosis became complicated pneumoconiosis cannot be determined because the diagnosis of complicated pneumoconiosis came from Dr. Dobersen‘s autopsy report. Therefore, absent an affirmative showing that Lambright did not have complicated pneumoconiosis, an award of lifetime benefits as of his filing date was appropriate. Bridger argues the onset date for Lambright‘s lifetime benefits can be no earlier than the month of his death because Dr. Dobersen‘s autopsy was the first diagnosis of complicated pneumoconiosis. The autopsy evidence, however, does not establish the date of onset, but merеly shows Lambright developed complicated pneumoconiosis at some point prior to his death. “It is well recognized that pneumoconiosis is often a latent, progressive and insidious disease and therefore evidence establishing total disability due to pneumoconiosis may relate backward in time to establish an earlier onset date in the absence of earlier contradictory like evidence.” Id. at 1368 (emphasis added).10 Therefore, to establish a benefits onset date subsequent to Lambright‘s claim-filing date, Bridger must point to “earlier contradictory like evidence” disproving the presence of complicated pneumoconiosis.
In this respect, Bridger points to x-ray, CT-scan, biopsy, and medical opinion evidence produced prior to Lambright‘s death which did not diagnose complicated pneumoconiosis. This showing is inadequate. As both Congress and the Supreme Court have recognized, x-ray evidence is not a reliable indicator of the absence of complicated pneumoconiosis, particularly when weighed against contrary autopsy evidence. See Usery, 428 U.S. at 31-32. The CT-scan evidence is not wholly inconsistent with Dr. Dobersen‘s diagnosis of complicated pneumoconiosis. As early as 2000, one of the CT-scans revealed the presence of a “large mass” which the 2005 ALJ considered consistent with Dr. Dobersen‘s observation of a 2.5 inch lesion of anthracotic scarring. By rule, negative biopsy evidence cannot establish the absence of pneumoconiosis.
Bridger also attempts to avoid this result by characterizing the ALJ‘s award of benefits to Lambright as subsequent to a modification proceeding. After a finding of entitlement, the Act permits the district director to modify an award on his own motion or upon request of either party.
Lambright initially filed his claim for lifetime benefits in March 1998. On December 21, 1998, the district director entered a determination of entitlement, awarding lifetime benefits to Lambright. Bridger subsequently requested modification of this award. On February 23, 2001, pursuant to Bridger‘s request, the director issued a “Proposed Decision and Order Apрroving Request for Modification After Remand.” The director suspended payment of benefits pending the final adjudication of Lambright‘s claim. The order also specified: “If no request for a formal hearing is received within 30 ... days from the date of this Proposed Order ..., the proposed order will be deemed to have been accepted by all parties and the findings set forth herein shall become final.” On March 14, 2001, within the appropriate thirty-day window, Lambright requested a hearing before an ALJ. Before that request was acted on, Lambright died.
On March 19, 2002, Ashmore filed her claim for survival benefits and submitted additional medical evidence, including Dr. Dobersen‘s autopsy report. The claim was not styled as a request for modification. Nonetheless, on August 3, 2002, the district director issued a new order, styled as a “Proposed Decision and Order Granting Request for Modification,” which awarded Ashmore benefits on Lambright‘s lifetime claim and on her survivor claim. The Decision and Order thereby disposed of all pending motions, implicitly denying Bridger‘s original motion for modification which had not yet been finally ruled on. Thus, it appears the director interpreted Ashmore‘s motion as a motion for modification based on change in conditions, but only to the extent Ashmore alleged she was entitled to additional (survivor) benefits due to Lambright‘s death. To the extent the order granting modification was based on a change in conditions, the ruling only implicated the claim for survivor benefits, not Lambright‘s original claim for lifetime benefits. Therefore, there are no grounds for a change in the default entitlement date for Lambright‘s lifetime benefits.
For the foregoing reasons, the decision of the Board is AFFIRMED.