Mary L. FOX, on behalf of Gary N. FOX, deceased, Petitioner, v. ELK RUN COAL COMPANY, INCORPORATED; Director, Office of Workers’ Compensation Programs, United States Department of Labor, Respondents. Elk Run Coal Company, Incorporated, Petitioner, v. Director, Office of Workers’ Compensation Programs, United States Department of Labor; Mary L. Fox, on behalf of Gary N. Fox, deceased, Respondents.
Nos. 12-2387, 12-2402
United States Court of Appeals, Fourth Circuit
Jan. 3, 2014
739 F.3d 131
Argued: Oct. 29, 2013.
Although “there may well be unusual situations in which an unreasonable sentence, standing alone, could require invalidating [a] waiver to avoid a miscarriage of justice,” such situations are rare, especially in light of our deferential abuse-of-discretion standard for reviewing sentencing appeals. United States v. Jackson, 523 F.3d 234, 244 (3d Cir.2008) (finding no miscarriage-of-justice waiver exception to defendant‘s challenge to the reasonableness of her sentence). This case is not one of those unusual situations, in large part because it does “not implicate fundamental rights or constitutional principles.” Mabry, 536 F.3d at 243. Indeed, Grimes‘s challenge to his bottom-of-the-Guidelines sentence is precisely the type of appeal his appellate waiver was intended to foreclose. Accordingly, we hold that Grimes‘s miscarriage of justice argument falls well short.
IV
In sum, we hold that Craig Grimes knowingly and voluntarily waived his right to appeal his sentence. His valid appellate waiver is unaffected by the waiver of his right to collaterally attack his sentence, and to enforce his appellate waiver would not work a miscarriage of justice. Accordingly, we will enforce the waiver and affirm the judgment of the District Court.
Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Chief Judge TRAXLER and Judge FLOYD joined.
WILKINSON, Circuit Judge:
Appellant Mary Fox contends that Elk Run Coal Company committed fraud on the court and thereby deprived her husband, coal miner Gary Fox, of nearly a decade of benefits under the Black Lung Benefits Act (“BLBA“). The Benefits Review Board (“BRB“) found that Elk Run‘s conduct was not sufficiently egregious to meet the high bar for a claim of fraud on the court because it did not amount to an intentional design aimed at undermining the integrity of the adjudicative process under the BLBA. We now affirm and find that Elk Run‘s conduct, while hardly admirable, did not, under clear Supreme Court and circuit precedent, demonstrate the commission of a fraud upon the court. See, e.g., Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944); Great Coastal Express, Inc. v. Int‘l Bhd. of Teamsters, 675 F.2d 1349 (4th Cir.1982).
I.
A.
Pneumoconiosis, commonly known as “black lung,” is a progressive and irreversible pulmonary condition that can afflict those regularly exposed to coal dust. Mullins Coal Co. v. Dir., OWCP, 484 U.S. 135, 138, 108 S.Ct. 427, 98 L.Ed.2d 450 (1987). In recognition of the effects of this disease, Congress adopted the BLBA to require private coal companies to compensate miners and their families. Id. at 138-39, 108 S.Ct. 427. The BLBA permits coal workers or their surviving dependents to apply for benefits by filing a claim with the District Director of the U.S. Department of Labor‘s Office of Workers’ Compensation Programs (“Director“).
Once the Director makes an initial finding on whether the claimant is entitled to benefits, either party may request an evidentiary hearing before an ALJ.
B.
Gary Fox worked in West Virginia as a coal miner for over 30 years before his death from coal worker‘s pneumoconiosis
Prior to the hearing, Elk Run obtained the pathology slides from Fox‘s 1998 surgical procedure and provided them to two additional pathologists: Dr. Richard Naeye and Dr. P. Raphael Caffrey. Both pathologists wrote reports summarizing their conclusions. Elk Run also requested opinions from several radiologists and submitted them, along with Dr. Koh‘s report but not Dr. Naeye‘s or Dr. Caffrey‘s, to four pulmonary specialists. The four pulmonologists concluded that, based on the evidence available to them, Fox likely did not have coal worker‘s pneumoconiosis at that time.
The evidentiary hearing occurred on September 19, 2000, at which Fox appeared pro se and Elk Run was represented by counsel. The ALJ informed Fox that he had a right to representation and, when Fox responded that he had not been able to find an attorney, the ALJ confirmed his competency and willingness to proceed without counsel. (Fox had, however, procured an attorney to represent him in his concurrent West Virginia worker‘s compensation claim related to pneumoconiosis). During the hearing, the ALJ admitted into the record the reports of Dr. Koh, the radiologists, and the pulmonologists, along with additional exhibits offered by Elk Run. Fox offered only his own testimony. Elk Run did not submit the reports of Dr. Naeye or Dr. Caffrey, nor did it disclose their existence to Fox or the ALJ. The ALJ denied Fox‘s claim on January 5, 2001, finding that Fox failed to show he had pneumoconiosis or that he was totally disabled due to pneumoconiosis. Fox did not appeal.
Fox retained counsel and filed a new claim on November 8, 2006. The Director again found him eligible for benefits and Elk Run once more requested an evidentiary hearing. But this time Fox, through his attorney, conducted vigorous discovery and requested that Elk Run hand over the 1998 pathology slides and disclose additional documents and reports pertaining to Fox‘s medical condition. After some foot dragging, Elk Run admitted liability for Fox‘s 2006 claim and disclosed the slides and several documents to Fox, including the pathology reports of Dr. Naeye and Dr. Caffrey. Recognizing that the BLBA bars any entitlement to benefits before the ALJ‘s 2001 judgment became final,
On July 20, 2011, the ALJ found that the Naeye and Caffrey reports diagnosed “complicated pneumoconiosis,” J.A. 416, and thus “clearly contradicted Dr. Koh‘s finding of an inflammatory pseudotumor,” J.A. 427. The ALJ then determined that Elk Run‘s failure to disclose the Naeye and Caffrey reports to its other expert witnesses tainted their conclusions and that, while “perhaps initially not concocted
On appeal, the BRB accepted the ALJ‘s factual findings, but held that Elk Run‘s “conduct did not rise to the level of fraud on the court” because Elk Run “did not engage in a deliberate scheme to directly subvert the judicial process.” J.A. 444. Because Elk Run had admitted liability for Fox‘s 2006 claim, the BRB held that Fox was entitled to benefits beginning in June 2006. One member of the BRB panel dissented, writing that Elk Run‘s conduct constituted fraud on the court because it had failed to disclose all the relevant medical evidence to its own experts.
II.
Fox asks this court to set aside the ALJ‘s 2001 judgment, which would have the effect of moving the onset of her entitlement to benefits under the BLBA from June 2006 to January 1997. She claims that the judgment was fraudulently procured because, although Elk Run knew that the Naeye and Caffrey reports diagnosed her husband with pneumoconiosis, it intentionally failed to disclose those reports to its own experts and later relied on the conclusions of those experts to controvert Fox‘s 1999 claim that he had pneumoconiosis. While Elk Run‘s conduct over the course of this litigation warrants nothing approaching judicial approbation, we are unable to say that it rose to the level of fraud on the court.
The standard of review in cases under the Black Lung Benefits Act is well settled. We sustain an ALJ‘s factual findings if there is “substantial evidence” on the record to support them. Harman Min. Co. v. Dir., OWCP, 678 F.3d 305, 310 (4th Cir.2012). Fox maintains that, whereas the BRB should have affirmed the ALJ‘s ruling on substantial evidence grounds, it instead improperly held that the ALJ erred “as a matter of law.” J.A. 444. However, the operative facts here are simply not disputed and only the application of the fraud on the court doctrine is at issue. That issue is one of law, which we review de novo. See Westmoreland Coal Co. v. Cox, 602 F.3d 276, 282 (4th Cir.2010).
A.
Fraud on the court is not your “garden-variety fraud.” George P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d 44, 48 (1st Cir.1995). Ordinarily, when a party believes that its opponent has obtained a court ruling by “fraud” or “misrepresentation,” it may move for relief under
But, as often happens with a rule, there is an exception. The savings clause in
We have likewise underscored the constricted scope of the fraud on the court doctrine. In Great Coastal, we held that fraud on the court is a “nebulous concept” that “should be construed very narrowly” lest it entirely swallow up
In succeeding cases we have emphasized this circumscribed understanding of fraud on the court. In Cleveland Demolition Co. v. Azcon Scrap Corp., 827 F.2d 984, 986 (4th Cir.1987), we held that fraud on the court involves “corruption of the judicial process itself” and thus the doctrine cannot support allegations involving a “routine evidentiary conflict.” Id. (internal quotation marks omitted). To hold otherwise, we found, would “seriously undermine[] the principle of finality” by permitting “parties to circumvent the
B.
Proving fraud on the court thus presents, under Supreme Court and circuit
Conduct that is not exemplary need not undermine the “integrity of the court and its ability to function impartially” within the meaning of “fraud on the court.” Great Coastal, 675 F.2d at 1356. The adversary process exists because it permits each side to present its own case as well as to test its opponent‘s in order to expose vulnerabilities of every sort and variety. It is, to some extent, a self-policing mechanism. The relevant provision of the APA contains no requirement that a party present the most probative evidence in its possession; instead, it is permitted to offer any evidence it would like so long as that evidence is relevant.
Thus it falls to each party to shape and refine its case, subject of course to the risk that its adversary will discredit it. One elementary component of the adversary system is cross-examination, which the Supreme Court has recognized is the “greatest legal engine ever invented for the discovery of truth.” California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (internal quotation marks omitted). Cross-examination helps to safeguard against the ALJ‘s concern that, if parties were free to withhold probative medical evidence from their experts, “an expert medical opinion could never be accepted as a reliable diagnosis.” J.A. 430. A party relying on weak evidence to sustain its case runs the risk that its experts will crumble upon cross-examination or otherwise be impeached by the opposing party. The presence of that deterrent means, however, that routine evidentiary disputes as this cannot clear the high bar for an action for fraud on the court. Cleveland Demolition, 827 F.2d at 986.
In fact, this case illustrates the principle. The ALJ recognized that Elk Run‘s case in the 1999 claim was vulnerable when it found that Elk Run “built its case around Dr. Koh‘s pathology report.” J.A. 428. Fox had the right to cross-examine Dr. Koh regarding his qualifications and conclusions.
Fox admits that an attorney experienced in black lung claims would have recognized that “something was fundamentally wrong” with how Elk Run presented its case as to Fox‘s 1999 claim. Appellant‘s Resp. 16. Indeed, once Fox retained an attorney for his 2006 claim, he pursued discovery and was successful in obtaining the pathology reports and 1998 pathology slides. Elk Run‘s alleged misconduct could have been “exposed by the normal adversary process.” Great Coastal, 675 F.2d at 1357. Our legal system therefore expected Fox to uncover Elk Run‘s conduct during the adjudication of Fox‘s 1999 claim or, if it amounted to Rule 60(b)(3) fraud, at most one year after the 2001 judgment became final. George P. Reintjes, 71 F.3d at 49 (holding that even perjury is “a common hazard of the adversary process with which litigants are equipped to deal through discovery and cross-examination and, where warranted,” a Rule 60(b)(3) motion).
Fox contends that the black lung benefits process is somehow different from an ordinary adversarial procedure and, in effect, urges us to alter that process by finding that Elk Run had a duty to share with its experts all of the medical information it had obtained. To that end, the ALJ found that Elk Run had a duty to “provide accurate evidence to its expert witnesses.” J.A. 430. But that duty—and the judicial supervision that would inescapably go with it—would carry ALJs far afield from their role as neutral arbiters. See Underwood v. Elkay Min., Inc., 105 F.3d 946, 949 (4th Cir.1997) (finding that the ALJ in a BLBA proceeding is the “trier of fact” charged with “evaluat[ing]” and “weigh[ing] the evidence“) superseded on other grounds as recognized in Elm Grove, 480 F.3d at 291. Any duty imposed upon a party to furnish its expert witnesses certain documents would improperly impinge on that party‘s right to develop its own evidence, handle its own experts, and present its own case. See, e.g., Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (holding in the context of the work product privilege that the adversary system requires a party‘s attorney be permitted to “assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference“). Fox‘s proposed duty would launch an infinite number of new challenges by parties alleging their opponents’ breach of the duty, thereby thrusting judges deep into the heart of the adversary process and the attorney-client relationship.
What Fox requests is something akin to a civil Brady rule, where parties would be obligated to disclose or at least identify any evidence helpful to their opponent regardless of whether it is privileged. See Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (finding that due process requires the government to disclose to a criminal defendant information favorable to his defense). But courts have only in rare instances found Brady applicable in civil proceedings, mainly in those unusual cases where the potential consequences “equal or exceed
Fox points out that her husband proceeded pro se before the administrative tribunal in his 1999 claim, but that point, while appealing, carries only so far. Fox was instructed of his right to an attorney who would receive compensation if his claim was successful. He had retained counsel for his state benefits claim, demonstrating that he knew the advantages of professional representation. It is true that Fox‘s pro se presentation of his 1999 claim did not match the counselled presentation of his 2006 claim. But the narrow confines of fraud on the court doctrine have never permitted claimants to relitigate old claims they have lost, simply because a better prior case presentation might have resulted in an earlier success. Finally, courts are not at liberty to exceed the parameters of what Congress has provided. Of course, Congress might have provided counsel to miners under the BLBA at public expense, but it did not do so. Instead, Congress left to the practiced judgment of attorneys which claims for benefits they thought were most likely to be successful. And in doing so, Congress adopted within the BLBA the dynamics of the adversary process. See Triplett, 494 U.S. at 733, 110 S.Ct. 1428 (Marshall, J., concurring) (“Because an operator faces the prospect of paying significant awards, it is often willing to pay substantial legal fees to defend against black lung claims.“); Treadway v. Califano, 584 F.2d 48, 48, 49 (4th Cir.1978) (holding that in its 1972 amendments to the BLBA, Congress made the benefits adjudication process “adversarial” because “the burden of the payment might be imposed upon an individual coal operator or upon the industry“). Recognizing Fox‘s claim would alter Congress‘s adversary design beyond our authority to do so.
Elk Run insists it has done nothing wrong and that it has proceeded properly at every turn. It maintains that the medical evidence in general and Dr. Naeye‘s pathology report in particular are more ambiguous than Fox makes them out to be. It further notes that no party is bound by every conclusion of the experts it may hire. See Horn v. Jewell Ridge Coal Corp., 6 Black Lung Rep. (Juris) 1-933, 1-937 (Ben.Rev.Bd.1984). Finally, it contends that it did not have any intent to defraud the court by declining to disclose the reports of Dr. Naeye and Dr. Caffrey because, as non-testifying consulting experts, their reports were protected by the work product privilege—a protection that would have been lost if the reports had been provided to Elk Run‘s testifying experts. See Elm Grove, 480 F.3d at 303 n. 25. We see no reason to address these matters when a plain, narrow disposition is available. We bestow no blessing and place no imprimatur on the company‘s conduct, other than to hold that it did not, under a clear chain of precedent, amount to a fraud upon the court.
For the foregoing reasons, the judgment of the Benefits Review Board is affirmed.
AFFIRMED.
SNIDER INTERNATIONAL CORPORATION, trading as Eastover Auto Supply; Mark Cranford; Stan Derwin Brown; Al Goyburu, Plaintiffs-Appellants, v. TOWN OF FOREST HEIGHTS, MARYLAND; Town of Riverdale Park, Maryland, Defendants-Appellees, and Mayor and Council of the Town of Riverdale Park, Maryland, Defendant.
No. 12-2490
United States Court of Appeals, Fourth Circuit
Jan. 7, 2014
739 F.3d 140
Argued: Oct. 29, 2013.