McCOY v. LEWIS COAL CO.
unknown
United States Court of Appeals, Fourth Circuit
2004
361 F.3d 580
Finаlly, we find little merit to Lewis Coal’s contention that the ALJ’s decision was not supported by substantial evidence because the ALJ failed to consider all relevant evidence. As indicated above, the ALJ considered all of Lewis Coal’s evidence, but rejected any evidence suggesting that McCoy was no longer disabled, as it was required to under Doris Coal. See 938 F.2d at 497. Lewis Coal’s experts opined that McCoy’s clinical pneumoconiosis was “asymptomatic,” and that his current chronic bronchitis could not be attributable to the inhalation of coal dust. However, little weight can be given to medical findings that conflict with the BLBA’s implementing regulations, see Warth v. S. Ohio Coal Co., 60 F.3d 173, 175 n.* (4th Cir.1995), such as a finding that a miner’s previously disabling cliniсal pneumoconiosis, which is a “progressive disease,”
Contrary to Lewis Coal’s assertions, it is clear that the ALJ did not arbitrarily disregard or discount all of Lewis Coal’s medical evidence. For example, in resolving a conflict regarding whether a particular medication, Vanceril, reflected treatment for a compensable condition, the ALJ noted that “[t]he 1988 [Physician’s Desk Reference] substantiates Dr. Castle’s statement. Thus the rebuttal is sufficient on the use of Vanceril.” J.A. 32. Because we find the ALJ gave proper weight to all of the medical evidence present in the record, we find the determination that McCoy was eligible to receive reimbursement for mediсal expenses related to clinical pneumoconiosis and chronic bronchitis to be supported by substantial evidence.
VI.
Because we conclude that Lewis Coal’s objections to the BRB’s Decision and Order lack merit, Lewis Coal’s petition for review is
DENIED.
PLANNED PARENTHOOD OF SOUTH CAROLINA INCORPORATED; Renee Carter, Plaintiffs-Appellees, v. B. Boykin ROSE, in his official capacity as the Director of the Department of Public Safety of the State of South Carolina; Jon E. Ozmint, in his official capacity as the Director of the Department of Corrections of South Carolina; Kim S. Aydlette, in her official capacity as the Director of the Department of Social Services of South Carolina, Defendants-Appellants.
No. 03-1118
United States Court of Appeals, Fourth Circuit
Filed: June 28, 2004
ORDER
Appellants filed a petition for rehearing and rehearing en banc.
Judge Luttig, Judge Michael, and Judge Gregory voted to deny the petition for rehearing.
On the poll requested by a member of the court on the petition for rehearing en banc, Judge Widener, Judge Niemeyer, Judge Williams, Judge Traxler, and Judge Shedd voted to grant rehearing en banc. Chief Judge Wilkins, Judge Wilkinson, Judge Luttig, Judge Michael, Judge Motz, Judge King, Judge Gregory, and Judge Duncan voted to deny rehearing en banc.
The petition for rehearing is denied, and because the poll of judges in active service failed to produce a majority in favor of rehearing en banc, the petition for rehearing en banc is also denied. Judgе Wilkinson wrote an opinion concurring in the denial of rehearing en banc. Judge Shedd wrote an opinion, joined by Judge Williams, dissenting from the denial of rehearing en banc.
WILKINSON, Circuit Judge, concurring in the denial of rehearing en banc:
At issue here is a South Carolina statute allowing citizens to opt for specialty license plates bearing the message “Choose Life.” See
I vote to deny rehearing en banc. I simply do not believe the state should use license plates to practice viewpoint discrimination. See Sons of Confederate Veterans, Inc. v. Comm’r of Va. Dep’t of Motor Vehicles, 305 F.3d 241, 242 (Wilkinson, C.J., concurring in the denial of rehearing en banc). That is plainly what is happening here. The state is saying that its citizens may express one view on a profound controversy but not the other. Citizens are permitted to express their agreement with the officially sanctioned policy, but they have no similar outlet to express their disagreement with it. This is a presidential election year. May a state issue plates touting one candidate, but not another? It is one thing for states to use license plates to celebrate birds and butterflies, military service, historical events and scenic vistas. It is quite another for the state to privilege private speech on one side—and one side only—of a fundamental moral, religious, or political controversy.
The state would argue that its viewpoint discrimination is permissible, because its license plates constitute pure government speech. But the speech here only becomes speech by virtue of a citizen’s choice. When speakers mount a soapbox or hoist a placard, one presumes thеy are free to create their own messages. I am not convinced that the mere presence of a license plate allows the state unlimited authority to channel would-be speakers into privileged categories of expression of the state’s own choosing.
Just as I considered Sons of Confederate Veterans “a free speech case, not . . . a Confederate flag case,” id. at 242, this to me is a First Amendment case, not a case about abortion. “It will not do to decide the same question one way between one set of litigants and the opposite way between another.” Benjamin N. Cardozo, The Nature of the Judicial Process 33 (1921). The fact that Americans have deep differences of opinion on subjects such as these is all the more reason to recognize the unifying force of the First Amendment principle—namely, that none of us has the right to compel assent to our views, but that all of us have the right to
SHEDD, Circuit Judge, dissenting from the denial of rehearing en banc:
According to the panel, the South Carolina General Assembly may enact a statute declaring “Choose Life” the official motto of the state, and that message may be printed on every standard license plate issued to vehicle owners in the state, but the General Assembly may not take the less intrusive step of enacting a statute authorizing a specialty license plate bearing precisely the same message for interested vehicle owners willing to pay a higher fee. Not only is this result bizarre on its face, but it also reflects a misapplication of our recent decision in Sons of Confederate Veterans, Inc. v. Commissioner of the Virginia Department of Motor Vehicles, 288 F.3d 610 (4th Cir.2002) (”SCV“). Because the panel’s decision unduly restricts the ability of elected officials to express the views of their constituents on any issue, however controversial, I dissent from the denial of rehearing en banc.1
I.
South Carolina issues a license plate to the owner of every vehicle registered in and licensed by the State.
There are two basic methods by which South Carolina permits issuance of specialty license plates. One method for obtaining a specialty plate is by application to the Department of Public Safety (“DPS“) pursuant to the administrative approval process described in
A second method fоr obtaining a specialty plate is by direct action in the General Assembly. The General Assembly has enacted separate statutes authorizing issuance of specialty plates to members of certain organizations. See, e.g.,
The General Assembly does not authorize specialty plates merely to recognize certain individuals, organizations, and the official dance. Some authorizing statutes earmark revenues generated from sales of specialty plates to support identified programs. See, e.g.,
On rare occasions, the General Assembly takes the unusual step of prescribing the message that appears on a specialty plate. For instance, the Nongame Wildlife and Natural Areas Fund plate must bear the message “South Carolina Protects Endangered Species,”
In 2001, the General Assembly enacted a separate statute authorizing the issuance of a specialty plate bearing the message “Choose Life.”
II.
The outcome of this case depends upon the proper characterization of the statutorily prescribed “Choose Life” message as private speech or government speech.3 If the “Choose Life” message is properly labeled private speech, then the government has preferred one private message over other messages based upon the viewpoints of those messages. The First Amendment ordinarily does not permit such viewpoint discrimination. SCV, 288 F.3d at 622 (citing Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677 (1998), and Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995)). If, on the other hand, the “Choose Life” message is properly labeled government speech, then the ordinary prohibition against viewpoint discrimination is inapplicable and the statute survives First Amendment scrutiny. The government can speak for itself, and it can take measures designed to ensure that its message is not distorted. SCV, 288 F.3d at 616-17 (citing Board of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000), and Griffin v. Department of Veterans Affairs, 274 F.3d 818, 822 (4th Cir.2001)). As we noted in SCV, “[t]he rationale behind the government’s authority to draw otherwise impermissible viewpoint distinctions in the government speech context is the accountability inherent in the political process.” 288 F.3d at 618 (citing Southworth, 529 U.S. at 235).4
In determining whether a particular message constitutes private speech or government speech, we consider four separate, but closely related, factors: (1) the purpose of the program in which the speech occurs, (2) the degree of editorial control over the speech by the government, (3) the identity of the literal speaker, and (4) which party—the government or a private party—bears ultimate responsibility for the speech. SCV, 288 F.3d at 618-19.
The speech at issue in SCV was the background logo of the Sons of Confederate Veterans, which included a representation of the Confederate flag. Although the Virginia legislature approved a specialty plate for the group, the authorizing statute included a unique restriction that prohibited the use of any symbol or emblem on the plate. We invalidated this logo restriction on the ground that it impermissibly discriminated against private speech based upon the viewpoint expressed by inclusion of the Confederate flag in the Sons of Confederate Veterans’ logo. Id. at 626, 629.
In reaching this conclusion, we noted that the purpose of the program in which the speech occurred was to “produce revenue while allowing, on special plates authorized for private organizations, for the private expression of various views.” Id. at 619. Moreover, the state exercised “little, if any” editorial control over the content of speсialty license plates. Id. at 621. Citing Wooley v. Maynard, 430 U.S. 705 (1977), for the proposition that “license plates . . . implicate private speech interests because of the connection of any message on the plate to the driver or owner of the vehicle,” we concluded that the literal speaker was the vehicle owner rather than the government and that the vehicle owner bore ultimate responsibility for the message conveyed by the Sons of Confederate Veterans logo. SCV, 288 F.3d at 621. As a result, we held that the background logo on the Sons of Confederate Veterans specialty plate was private speech rather than government speech.
Nevertheless, while the “private speech” and “government speech” categories are imprecise when applied to messages printed on license plates, they remain useful in describing the degree of government involvement in creating and speaking particular messages. The statutory scheme at issue here differs in material respects from the scheme at issue in SCV, and I believe that the four-factor analysis yields a different result. With respect to the first factor, there can be no doubt that the primary purpose of the “Choose Life” statute is to express the General Assembly’s current position on the abortion issue. A secondary purpose of the statute is to generate revenues for crisis pregnancy programs, specifically programs that do not provide or promote abortions. As the panel correctly recognized, this statute was intended to make a statement about the General Assembly’s preference for the pro-life position. Planned Parenthood, 361 F.3d at 793.
It is equally clear that the General Assembly exercised complete editorial control over the “Choose Life” plate. The General Assembly created and codified the particular message that appears on the plate. Unlike the statute at issue in SCV—and unlike most other specialty-plate statutes in South Carolina—the “Choose Life” statute actually mandates the message that appears on the plate.
The bottom-line question, then, is whether the government speech component to the “Choose Life” message is so substantially greater than the private speech component that the message may fairly be characterized as “government speech.”
The panel begins with the modest proposition that messages on license plates “are associated at least partly with the vehicle owners.” Planned Parenthood, 361 F.3d at 794 (citing Wooley, 430 U.S. at 717). Indeed, Wooley goes no further than that. At issue in Wooley was a New Hampshire statute making it a misdemeanor knowingly to obscure the figures or letters on a license plate, including the state’s motto, “Live Free or Die.” The Supreme Court held that New Hampshire could not punish vehicle owners who registered their objections to the state motto by obscuring that message on their license plates. Id. at 717. More broadly, a state cannot “require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public.” Id. at 713. Because there is nothing in this case remotely akin to compelled speech, Wooley is of little use here. For present purposes, Wooley suggests that (1) the government can speak its messages through the medium of license plates but (2) vehicle owners may choose to reject the government’s messages. Thus, Wooley recognizes that both the government and the vehicle owner are literal speakers, to varying degrees, with respect to messages printed on license plates. To decide this case (and any specialty license plate case), we must ask whether any peculiar circumstance surrounding the specialty plate so diminishes the government’s role as a literal speaker or highlights the vehicle owner’s role as a literal speaker that one or the other party must be deemed the sole speaker.
The panel concludes that the vehicle owner should be treated as the literal speaker of the message on a specialty license plate because “the specialty plate gives private individuals the option to identify with, purchase, and display one of the [State’s] authorized messages.” Planned Parenthood, 361 F.3d at 794. I disagree. By giving interested citizens the option to endorse its message, the State has not lost its place as the literal speaker of that message. The proper question is whether the private citizen “engages the government to publish his message” or the government “engages the private citizen to publish its message.” SCV II, 305 F.3d at 246 (Luttig, J.). The Virginia statute at issue in SCV called for a specialty plate to be issued only upon application by an organization, with the design of that plate proposed by the organization. Thus, the message was created by private citizens, and it was left to the government to approve or disapprove that message. By contrast, under South Carolina’s “Choose Life” statute, the government expresses its message on its own initiative, and private citizens are invited to take that message or leave it. Private citizens do not suggest the message, nor do they compose it. On their own, they cannot change the message. The vehicle owner’s purchasing the specialty plate signifies his endorsement of the State’s message, not his engaging the State to speak his own message.
Just as the State should be deemed the literal speaker of the “Choose Life” message, so the State will bear ultimate responsibility for that message. The General Assembly alone created the message, and it wrote that message into stаte law for the watching electorate to see. Assuming that the panel correctly perceives the divisiveness of the abortion issue in South Carolina, that fact would suggest a heightened awareness by voters of the General Assembly’s role in authorizing the “Choose Life” plate. I can think of no more transparent act of government than the enactment of a statute that says in plain terms what it purports to do. I can think of no clearer demonstration of political accountability than for citizens opposed to this “Choose Life” license plate to turn out the current government and replace it with a government that will amend or repeal the stаtute and perhaps even replace it with a statute calling for pro-choice specialty plates. See Southworth, 529 U.S. at 235 (“When the government speaks . . . it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position.“). According to the factors set out in SCV, South Carolina’s “Choose Life” license plate is properly characterized as government speech, not private speech, and is therefore permissible under the First Amendment.
III.
The “Choose Life” statute does not creаte a forum for private expression so much as it supports an established government program. The Supreme Court in Rust v. Sullivan, 500 U.S. 173 (1991), approved the federal government’s policy of offering federal funds to private health clinics on the condition that those clinics not counsel or provide abortions. Id. at 193. Answering the argument that the federal government was restricting private physicians’ speech based upon viewpoint, the Court stated that “[t]he Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with thе problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.” Id. In other words, when the government establishes a program, it is permitted to define the contours of that program as it sees fit. Rust, 500 U.S. at 194. The government may refuse to fund speech that is inconsistent with the program thus defined. Id. at 194-95.
The “Choose Life” statute is analogous to the federal regulations at issue in Rust. The “Choose Life” statute earmarks revenues generated from sales of this specialty plate for a government grant program established to fund crisis pregnancy services that specifically do not counsel аbortion. In furtherance of this identified program, the statute offers the plates for sale to private persons who wish to support the “Choose Life” message and the crisis pregnancy grant program. Just as in Rust, the government has created a program and enlisted willing participants to support that program. As in Rust, “we have not here the case of a general law singling out a disfavored group on the basis of speech content, but a case of the Government refusing to fund activities, including speech, which are specifically excluded from the scope of the project funded.” Id. If the government can actually restrict private entities’ speeсh in furtherance of an established government pro
Perhaps even more troubling are the panel’s contentions that “the State’s role in promoting the Choose Life message is obscured from the public” and that the “Choose Life” statute represents “cloaked advocacy” that insulates the General Assembly from criticism and еlectoral retribution. Planned Parenthood, 361 F.3d at 795-96, 798. Nothing but the panel’s conjecture supports such conclusions.
According to the panel, ordinary South Carolinians will likely be misled into believing that the presence of the “Choose Life” plate and the absence of an opposing plate “are the result of popular choice.” Id. at 798. Likewise, the panel worries that ordinary citizens might be misled into thinking that the State “has already won support for the position it is promoting.” Id. The panel offers no justification for its suspicion that the government of South Carolina—the General Assembly and the governor—misrepresented popular sentiments when it enacted the “Choose Life” statute. In any event, whether or not a majority of South Carolina voters approve the “Choose Life” message, a majority of their elected representatives did approve that message in open session and on a public record. If those duly elected representatives misjudged their constituents’ opinions, then they will be held accountable for their error; if the abortion issue is as controversial in South Carolina as the panel asserts, then a legislator’s vote on the “Choose Life” statute will surely be noticed. We ought not short-circuit regular political processes based upon speculation that the citizens of South Carolina cannot discern what rоle their elected representatives played in enacting the “Choose Life” statute.
The mere fact that the General Assembly has authorized a myriad of specialty license plates does not diminish its accountability for the “Choose Life” message. First, it is the rare specialty plate for which the General Assembly actually writes the message—an act more conspicuous when it happens than the simple approval of an organization’s suggested design. Second, if the panel is correct that abortion is an especially divisive issue in South Carolina, then the General Assembly’s taking the extraordinary step of authoring the “Choose Life” message would be expected to draw extraordinary public attention. Under the panel’s view, merely allowing issuance of plates other than the standard plate so confuses ordinary citizens that they cannot be expected to know when their legislature takes sides in an important debate.5
IV.
“It is inevitable that government will adopt and pursue programs and policies
It is important to note that the panel’s holding affеcts much more than the “Choose Life” plate alone. The General Assembly has taken similar action with respect to environmental conservation,
We have come a long way from Wooley’s instruction that a State may not conscript private vehicles to serve as “mobile billboards” for its messages. The objectors in Wooley expressed their rejection of the State’s message by covering that message with tape. Now it seems that the State, bеfore it speaks, must anticipate the objection of a citizen and place the tape over its own message. In the end, the panel’s decision muzzles everyday political action based on the mistaken belief that reasonable citizens cannot tell that their government is speaking when it enacts a specific statute calling for production of a specialty license plate bearing a particular message. If a government cannot be deemed to speak through such a statute, then I wonder how it can speak at all.
Judge WILLIAMS joins in this opinion.