Wake Forest Law Review

By: Adam McCoy & Shawn Namet

U.S. v. Palin
In this criminal case, the defendants argued the government did not sufficiently prove the materiality requirement of health care fraud to convict for submitting to the insurance company medically unnecessary and more expensive tests to increase profits.  Materiality requires showing the misrepresentation effected the insurance company’s decision to pay the claim.  The Fourth Circuit affirmed the conviction and found there was sufficient evidence of materiality because insurers would not have paid for the more expensive tests submitted by the defendants if they had known the tests were not medically necessarily.

U.S. v. Ali
In this civil case, Melina Ali appealed the district court’s order holding her in contempt after she failed to produce certain documents in response to an administrative summons issued by the IRS, arguing that the Government failed to establish her possession or control of additional responsive documents.  The Fourth Circuit affirmed the district court’s judgment, finding sufficient evidence in the record to establish that Ali’s production was presumptively incomplete, and that the burden shifted to Ali to demonstrate her good faith efforts to produce responsive documents.

By Kelsey Hyde

On March 14, 2017, the Fourth Circuit amended their March 13, 2017 published opinion in the case of Cantillano Cruz v. Sessions III where the Court granted a petition for review of a final order from the Board of Immigration Appeals (BIA). In its decision, the Court reversed the administrative court’s denial of asylum to Luz Marina Cantillano Cruz (Cantillano Cruz), and remanded the case to BIA for further proceedings. In reversing the agency’s determination, the Court found that the BIA erroneously concluded that Cantillano Cruz failed to meet the statutory nexus requirement for asylum relief.

Factual Background Leading to Asylum Claims

Cantillano Cruz, a citizen of Honduras, began living with the late Johnny Martinez (Martinez) in 2003. Although the couple never married, they were considered married by the surrounding community and also had two children together. In 2007, Martinez obtained employment working for Danny Avila (Avila) as a personal bodyguard. Avila claimed to be a “fisherman” and Martinez regularly accompanied him on “fishing trips” for approximately five years. However, Martinez eventually discovered that Avila worked closely with organized crime groups of Honduras and Colombia, trafficking drugs and firearms. In 2012, Martinez disclosed to Cantillano Cruz his plan to quit based on Avila’s criminal conduct. A week later, Martinez left for a “fishing trip” with Avila and never returned.

Cantillano Cruz and family members searched for Martinez, unsuccessfully, and were threatened by Avila to cease looking and asking questions, or they would “suffer the same fate” as Martinez. Avila then continued these threats by calling Cantillano Cruz, loitering outside her home, firing weapons near her home, threatening the lives of her children, and even killing her dogs.

In 2014, as a result of these threats by Avila, Cantillano Cruz fled Honduras with her young children, entered the United States without authorization, and requested asylum relief. The Department of Homeland Security (DHS) charged her as an alien present in the United States without permission, under 8 U.S.C. § 1182(a)(6)(A)(i). Cantillano Cruz conceded this, but filed for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

Determinations of Immigration Judge & Board of Immigration Appeals

The Immigration Judge (IJ) found that although Cantillano Cruz was a member of a particular social group, the nuclear family of Johnny Martinez, she failed to show past or future persecution on account of membership in this group.  Instead, the IJ concluded the major reason Avila targeted Cantillano Cruz was to deter her from contacting the police, a reasoning which could have occurred regardless of their familial relationship, and consequently denied her application for asylum and withholding of removal. The IJ also rejected her request for protection under CAT, finding that the threats against her had never escalated to violence and that Avila only threatened to commit violence if Cantillano Cruz contacted the police, which she had expressed no intention of doing. In Cantillano Cruz’s appeal to the BIA, the BIA adopted the conclusions made by the IJ, supplemented with its own reasoning, and dismissed her appeal. On appeal to the Fourth Circuit, Cantillano Cruz claimed that the BIA and IJ both erred in their conclusion that she was not persecuted based on her membership in Martinez’s nuclear family.

Issues & Standards of Review On Appeal

An applicant seeking asylum must establish her inability, or unwillingness, to return to her home country based on persecution or well-founded fear of persecution on account of some protected ground, such as nationality or membership in a particular social group. 8 U.S.C. § 1101(a)(42)(A). Persecution occurs “on account of” one’s membership in an immediate family when that relationship is at least one central reason for the feared prosecution. Crespin-Valladares v. Holder, 632 F.3d 117, 127 (4th Cir. 2011). The Fourth Circuit does not limit this “statutory nexus requirement” to situations where one’s membership is the sole reason for their persecution, but instead recognizes that many central reasons can motivate such actions. Oliva v. Lynch, 807 F.3d 53, 59 (4th Cir. 2015).

On appeal, the Fourth Circuit considered both of the lower rulings, on account of the fact that the BIA adopted yet supplemented the IJ’s conclusions. The court reviewed de novo the question of whether the BIA and IJ applied the correct legal standard in determining whether Cantillano Cruz met the statutory nexus requirement. Then, the court reviewed the BIA and IJ’s determinations of factual questions, those regarding Avila’s motivations for the persecution, by considering whether these conclusions were supported by substantial evidence. Finally, the Fourth Circuit reviewed the IJ’s factual findings as conclusive unless another reasonable adjudicator would be compelled to reach a different conclusion.

Fourth Circuit Grants Petition & Reverses Administrative Court’s Findings

The Court held that the IJ and BIA applied an improper, excessively narrow standard when interpreting the statutory nexus requirement. Ultimately, the IJ and BIA improperly focused on one central reason for Avila’s threats, to deter Cantillano Cruz from contacting the police, but failed to recognize the other central and intertwined reason for the threats, her existence in the nuclear family of Martinez. The court noted that the IJ and BIA essentially seemed to require that Cantillano Cruz prove the threats were solely based on her status as Martinez’s wife, which was an improper condition to mandate.

Additionally, the court emphasized that the evidence clearly showed Cantillano Cruz knew about Avila’s criminal conduct as a result of her status as a member of Martinez’s nuclear family. Thus, the court reviewed the record and found that it was sufficient to compel the conclusion that Cantillano Cruz satisfied the statutory nexus requirement, as the evidence clearly demonstrated that she was persecuted as a result of her familial relationship with Martinez and the knowledge she obtained about Avila as a result of this relationship. Accordingly, the BIA and IJ’s conclusions were found to be contrary to law and an abuse of discretion, necessitating their reversal.

Because of this conclusion, the Court did not address whether Cantillano Cruz satisfied the requirements of CAT relief by showing the likelihood of torture if returned to Honduras. However, the Court held that, if asylum relief was still declined, the BIA ought to reconsider the CAT claim consistent with the conclusions of this opinion.

By: Kristina Wilson

On Thursday, January 19, 2017, the Fourth Circuit issued a published opinion in the civil case Patterson v. Commissioner of Social Security Administration. The Fourth Circuit reversed and remanded the Administrative Law Judge’s (“ALJ”) denial of the plaintiff’s disability benefits due to his failure to evaluate the plaintiff’s alleged mental impairment according to the “special technique” required by 20 C.F.R. § 404.1520a. The Fourth Circuit held that although failing to follow the special technique does not always necessitate remand, in this case, it was not a harmless error.

Facts and Procedural History

On July 21, 2010, the plaintiff filed her initial application for Social Security benefits. After the Social Security Administration (“SSA”) denied her application, the plaintiff filed a timely request for a hearing on May 12, 2011. The ALJ at the hearing upheld the denial of the plaintiff’s benefits, holding that she was not disabled during the period for which she sought benefits. The ALJ based this determination primarily on the conclusions of one doctor. The SSA conceded that the ALJ failed to follow the appropriate “special technique” protocol outlined in 20 C.F.R. § 404.1520a and that the ALJ failed to consider contradictory medical evidence. The plaintiff then filed suit in district court, but district court sided with the ALJ, stating that substantial evidence supported the ALJ’s findings and that the failure to use the special technique constituted harmless error. The plaintiff appealed from these findings.

The ALJ Failed to Employ the Special Technique

When evaluating a claimant’s alleged mental impairment, an ALJ must follow the special technique. 20 C.F.R. § 404.1520a(a). Under the special technique, an ALJ must evaluate the alleged mental impairment according to four areas of functional limitation including activities of daily living, social functioning, concentration, persistence, or pace, and episodes of decompensation. 20 C.F.R. § 404.1520a(c)(4). The ALJ must rate his findings in the final area, episodes of decompensation, according to a four-point scale. Id. Next, the ALJ determines if the mental impairment is severe and whether it qualifies as a listed impairment. Id. § 404.1520a(d). The regulation requires the ALJ to specifically document all of the steps of the special technique. Id.

Here, the ALJ relied on the findings of only two doctors and did not document the steps of the special technique. Moreover, the record contained evidence that conflicted with the doctors’ findings, but the ALJ did not address the discrepancies. The SSA conceded that the ALJ did not properly apply the special technique and that the doctors’ opinions were not a sufficient surrogate for the special technique.

The Fourth Circuit Cannot Apply the Special Technique

The SSA argues, as a matter of first impression, that the Fourth Circuit can apply the special technique on appeal. If the Fourth Circuit found that the ALJ’s denial of benefits was proper, it could affirm the district court’s opinion. However, the Fourth Circuit disagreed with this argument, stating that the plain language of the special technique statute requires the SSA to apply the special technique. 20 C.F.R. § 404.1520a(e). Therefore, according to the Fourth Circuit, the special technique could not have been intended as nonbinding guidance to aid reviewing courts. The Fourth Circuit further reasoned that the SSA frequently issues such nonbinding guidance, and if it had intended for the special technique to be nonbinding guidance, it would not have engaged in the burdensome regulation promulgation process. Finally, the Fourth Circuit reasoned that failure to apply and properly document the special technique in administrative hearings actually hampers judicial review by obscuring the manner in which the ALJ handled different types of evidence. Thus, the Fourth Circuit concluded that it could not independently apply the special technique.

The Failure to Apply the Special Technique Was Not Harmless Error

Although the failure to apply the special technique does not automatically require remand in every case, the failure in this case was not harmless. The Fourth Circuit stated that the ALJ’s failure to make and support his findings severely hindered judicial review. The Fourth Circuit had no way of knowing how the ALJ evaluated crucial factors such as the plaintiff’s IQ. Moreover, the Fourth Circuit could not ascertain how the ALJ weighed and treated the conflicting evidence. Thus, the Fourth Circuit was unable to say whether substantial evidence supported the ALJ’s findings because the ALJ failed to document and explain his findings according to mandatory procedure.


The Fourth Circuit did not reach the merits of the plaintiff’s application for disability benefits. Instead, it reversed the district court’s findings and remanded the case to the ALJ, directing him to follow the requirements of all applicable regulations.



By Ali Fenno

On January 24, 2017, the Fourth Circuit issued a published opinion in the criminal case Sotnikau v. Lynch.  In Sotnikau, the Fourth Circuit addressed whether involuntary manslaughter in Virginia constitutes a crime of moral turpitude that justifies a U.S. permanent resident’s removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)(I).  After examining the scope of Virginia’s involuntary manslaughter statute, the court held that the crime did not constitute moral turpitude and thus could not be grounds for the deportation of defendant Ihar Sotnikau (“Sotnikau”).

Involuntary Manslaughter Conviction

On June 18, 2010, Sotnikau, a U.S. permanent resident from Belarus, was drinking with Randy Hines (“Hines”) when Hines fell into the Elizabeth River in Portsmouth, Virginia.  Sotnikau attempted to find Hines in the water, but after no success, returned to a local homeless shelter. He had neither alerted the authorities nor sought assistance to find Hines. At the homeless shelter, someone overheard him speaking about the events that transpired at the river.  They alerted the authorities, and on June 19, 2010, the authorities found Hines’s body in the river. Sotnikau was then charged with involuntary manslaughter. He plead guilty to the offense and was sentenced to five years in prison.

DHS Institutes Removal Proceedings

On October 21, 2011, the Department of Homeland Security (“DHS”) instituted removal proceedings against Sotnikau pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)(I), which allows the removal of any alien who “is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission” into the United States. In response, Sotnikau sought asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”). The Immigration Judge (“IJ”) summarily denied Sotnikau’s requests on August 14, 2012, concluding that involuntary manslaughter was a crime of moral turpitude which accordingly gave grounds for deportation. On Sotnikau’s appeal, the Board of Immigration Appeals (“BIA”) remanded the case for the IJ to “set forth his reasoning as to why Sotnikau was convicted of a crime involving moral turpitude.”

On remand, the IJ concluded that moral turpitude was inherent in Virginia’s involuntary manslaughter statute because in In re Franklin, the BIA had concluded that moral turpitude was inherent in Missouri’s involuntary manslaughter statute. The IJ reasoned that the Franklin holding was applicable in this case because the mental state required to support a conviction for involuntary manslaughter under Missouri law is the same as that for Virginia law: recklessness.  Sotnikau again appealed, but the BIA affirmed the IJ. The BIA agreed that Franklin should control the case at hand because of the similarities between Missouri’s and Virginia’s involuntary manslaughter statutes; the elements of the crime in both states purportedly had the same essential elements. Accordingly, Sotnikau’s appeal was dismissed and the BIA ordered his removal. Sotnikau then appealed.

Issue on Appeal and Standard of Review

The dispositive issue on appeal was whether involuntary manslaughter under Virginia law is categorically a crime involving moral turpitude pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)(I). Because this question was a question of law, the Fourth Circuit reviewed the issue de novo.

Moral Turpitude is Not Inherent in Virginia’s Statute

The Fourth Circuit first noted that a categorical approach must be taken to address this issue; every element of a crime must be analyzed to determine if the statute solely encompasses behavior involving moral turpitude. The court stated that if any element of a crime does not involve moral turpitude, then 8 U.S.C. § 1227(a)(2)(A)(i)(I) is inapplicable.

The court then defined “moral turpitude” as “involv[ing] conduct that not only violates a statute but also independently violates a moral norm.” It further enumerated two essential elements of such a crime: (1) a culpable mental state and (2) reprehensible conduct. It included that criminally reckless, knowing, and intentional conduct as conduct that can constitute moral turpitude, but explicitly exempted criminally negligent conduct. It reasoned that criminally negligent conduct cannot be considered moral turpitude because offenders acting with criminal negligence do not have “a conscious disregard of risks attendant to [their] conduct,” and pursuant to In re Perez-Contreras, moral turpitude cannot be inherent in a statute without “intent required for conviction[ or] any conscious disregard of a substantial and unjustifiable risk.”

In applying this framework to the case at hand, the Fourth Circuit first looked to the elements of Virginia’s involuntary manslaughter offense. The court noted that unlike the Missouri statute underlying the Franklin decision, an offender could be convicted under the Virginia statute for not only criminally reckless conduct, but also criminally negligent conduct. Thus, Sotnikau could have been convicted under Virginia’s statute without showing any conscious disregard of a substantial and unjustifiable risk. Accordingly, the Fourth Circuit concluded that involuntary manslaughter under Virginia law does not constitute a crime involving moral turpitude.


The Fourth Circuit concluded that crimes involving criminal negligence, such as Virginia’s involuntary manslaughter offense, do not constitute crimes involving moral turpitude. As such, it granted Sotnikau’s petition for review, vacated the Final BIA Order, and remanded for further proceedings, holding that Sotnikau was not subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)(I).

Fourth Circuit Denies Review of Administrative Order & Civil Penalties Following a Fatal Coal Mine Accident

By Kelsey Hyde

On November 10, 2016, the Fourth Circuit published an opinion in the case of Consol Buchanan Mining Company v. Secretary of Labor.  The Fourth Circuit denied Consol’s petition for review of an order by the Federal Mine Safety and Health Review Commission, finding the appellant mining company negligent and subject to penalties for violations of mining regulations. The Fourth Circuit found the administrative law judge did not err in finding that Consol had fair notice of the dangerous conditions, which ultimately led to the avoidable death of a miner, and that Consol’s actions constituted “unwarrantable failure” to comply with the applicable mine-safety regulations.

Appellant’s Fatal Mine Accident & Subsequent Proceedings

The fatal accident that ultimately led to this action occurred on January 11, 2012, in a Virginia coal mine operated by appellant, Consol Buchanan Mining Co. (“Consol”). Consol’s mine had a six-inch main line that supplied water for various uses, including firefighting and suppressing coal dust. The line was constructed with several valves to allow water flow for such uses. At one point, the water line was above the floor of the mine, but had since been buried by the accumulation of dust and debris over several years. Because the line runs adjacent to the equipment trackways, valves were regularly struck by machinery traveling on the tracks, and Consol was aware that these valves were being hit and damaged by moving equipment. Consol had also removed certain leverage bars provided by the manufacturer to open and close the valves.

On the day of the accident, Section Foreman Gregory Addington (“Addington”) had been assigned to help oversee two other miners move a shuttle car across the mine. During this process, the crew struck a fire valve extending out from the main waterline which split the valve and sent a fountain of water shooting out into the mine. Ultimately, they were unable to fully close the valve because of the excessive debris that had accumulated, and because the proper leverage bar was unavailable. Moreover, the damage to the fire valve made it unable to bear the necessary level of water pressure. The valve was suddenly ejected, fatally striking one of the miners.

Following the accident, the Mine Safety & Health Administration (“MSHA”) conducted an investigation and eventually concluded the accident had resulted from the failed closure of the inoperable valve. MSHA then petitioned the Federal Mine Safety & Health Review Commission (“Commission”) to assess civil penalties against Consol for violating two mine safety regulations: (1) failing to remove unsafe mining machinery or equipment from service, based on reusing the damaged fire valve, in violation of 30 C.F.R. § 75.1725(a); and (2) failing to ensure all firefighting equipment was maintained in a usable and operative condition, based on making the leverage bars unavailable and unable to ensure valves could be properly closed, in violation of 30 C.F.R. § 75.1100-3. After an evidentiary hearing, an administrative law judge (“ALJ”) from MSHA found Consol in violation based on their “unwarrantable failure” to comply with the respective regulations, and imposed a civil penalty of $70,000 per violation. After an unsuccessful petition for discretionary review by the agency, the ALJ’s decision was made final and Consol petitioned the Fourth Circuit for review.

Challenges & Standards of Review on Appeal

Through this appeal, Consol challenged the MHSA order on the following three grounds: (1) Consol lacked fair notice that their acts were in violation because MSHA had not previously cited them for such infractions; (2) Addington, the foreman in the accident, was not acting as Consol’s agent and therefore negligence could not be imputed ; and (3) the ALJ erred in finding Consol demonstrated heightened negligence through their failure to comply with the mining regulations.

The Fourth Circuit reviewed the ALJ’s factual findings as they relate to these challenges under the “substantial evidence” standard, which involves assessing “relevant evidence such that a reasonable mind might accept as adequate to support the conclusion.” Almy v. Sebelius, 679 F.3d 297, 301 (4th Cir. 2012). For any legal conclusions, the Fourth Circuit operated under the de novo standard, offering deference to the agency’s interpretations of ambiguities, when necessary. After a full review of the record as a whole, the court proceeded with each of Consol’s three separate challenges under these standards of review.

Court of Appeals for the Fourth Circuit Adopts the “Reasonably Prudent Miner” Test

The court disagreed with Consol’s contention that they were not given adequate notice that their conduct would constitute a violation, and were thus deprived of due process of law when penalized for the violations. Although the court recognized parties subject to administrative sanctions are so entitled to adequate notice of what would constitute proscribed conduct, whether a party lacks such adequate notice hinges on a fact-specific analysis. To make this determination in the specific context of mining and MSHA regulations, the Fourth Circuit chose to adopt the “reasonably prudent miner” test, that both the agency and other Circuit courts have employed in related cases. The test considers “whether a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard.” DQ Fire & Explosion Consultants, Inc., 36 FMSHRC 3083, 3087 (Dec. 2014).  The court found this rule more conducive with Congress’s intent to place the responsibility of maintaining safety on the mine operators, as well as the practical limitations of administrative agencies enforcement power if a rule of explicit notice for all potential violations were required. Applying this objective standard to the present case, based on all evidence in the record, the court found that a reasonably prudent miner would indeed recognize that actions and ongoing conditions at Consol’s mine were in violation of MSHA regulations, certainly placing miners at risk, and, thus, Consol had fair notice that their actions could result in sanctions.

Foreman Addington was an agent of the Mine Operator

            The court also disagreed with Consol’s assertion that Addington, the foreman involved in moving the shuttle car that eventually caused the accident, was not an agent of Consol. The court instead found the Addington’s negligence was properly considered in assessing Consol’s negligence. Here, the court looked to the Mine Act, which allows a mine operator to be liable for the negligence of anyone who qualifies as an “agent”, defined as any person “charged with responsibility for the operation of all or part of a coal or other mine or the supervision of the minders in a coal or other mine.” 30 U.S.C. § 802(e). Furthermore, applications of this definition by the agency itself, as well as courts of other Circuits, have yielded a broad definition of agency, not limited to concepts of liability at common law, but instead focused on whether the miner exercised managerial or supervisory responsibilities at the time of his negligent conduct. Here, the court found the ALJ properly determined Addington was serving as a supervisor of the other miners, and therefore Consol’s “agent.” The court did consider the record as a whole, but found the testimony of other miners, referring to Addington as “the boss” and indicating they would have certainly followed his instructions at the time of this valve accident, as most dispositive of his supervisor role at the time of this negligent conduct that led to the accident. As such, the court held that there was indeed substantial evidence to support the ALJ’s conclusion that Addington was Consol’s agent. 

The ALJ Did Not Err in Finding Appellant’s Violations Were “Unwarrantable Failure” to Comply with MSHA Regulations

            Consol’s final challenge, disputing the ALJ’s finding of aggravated negligence based on their “unwarranted failure” to comply with mining regulations, was similarly denied by the Fourth Circuit. An unwarranted failure to comply with such regulations involves conduct otherwise inexcusable or not justifiable, such that the aggravating conduct amounted to more than ordinary negligence. In the initial order, the ALJ considered a variety of “aggravating factors” to determine whether the operator’s conduct was not justifiable, including: the length of time of violative condition, a high degree of danger, the obviousness of the violation, any efforts to abate violative condition, notice of violation, or notice of necessity for further efforts to reach compliance. Again, reviewing the record as a whole under the “substantial evidence” standard, the court found substantial support for the findings regarding Consol’s display of these aggravating factors, including: the extended period of time over which the violations persisted, the obviousness of the open and broken valve, the significant danger these conditions posed to miners, Consol’s knowledge of frequent instances of damage to the valves, and even a prior incident of injury involving the damaged valves. Accordingly, the court found no error in the ALJ’s finding that Consol demonstrated an aggravated lack of due care, more than ordinary negligence, in failing to remedy these dangerous conditions of which they were on notice.

Fourth Circuit Denies Petition for Review

            Upon finding no error in the ALJ’s conclusions that appellant Consol had fair notice of dangerous conditions, and that the fatal accident in question occurred based on Consol’s unwarrantable failure to comply with the applicable regulations, the Fourth Circuit denied Consol’s petition for review of the agency’s order and imposition of civil penalties.

Symbol of law and justice in the empty courtroom, law and justice concept.

By George Kennedy

On March 15, 2016, the Fourth Circuit issued its amended published opinion in the case of Pac Tell Group, Inc. v. National Labor Relations Board.  The Fourth Circuit held that the decision of the National Labor Relations Board [“the NLRB”] over a dispute between an employer and the union representing its employees was supported by substantial evidence and therefore denied the employer’s petition for review.

Union Election at U.S. Fibers

The origin of this dispute centers around the decision of factory workers employed by U.S. Fibers to unionize. U.S. Fibers is a South Carolina-based company which recycles polyester fibers.  The United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied-Industrial and Service Workers International Union, Local 7898 [“the union”] hoped to recruit U.S. Fibers employees to join and filed an election petition with the NLRB. The NLRB granted the union’s request and directed an election at the U.S. Fibers plant. The union won the election, meaning that the union gained the right to be the exclusive collective bargaining representative for U.S. Fibers employees.

Following the unionization of its employees, however, U.S. Fibers refused to recognize the union or engage in collective bargaining with it. The employer asserted that the NLRB’s certification of the union was improper and that the results of the election should be set aside. The employer raised two issues in support of its position: (1) that the NLRB improperly designated four employees who participated in the union election as non-supervisors and (2) that these same employees engaged in objectionable conduct in regards to the election. The NLRB disagreed, and ordered that the employer recognize the union and bargain with the union upon request. In response, the employer sought review of the NLRB order at the Fourth Circuit.

Standards of Review

 As the Fourth Circuit held, the standards of review for judging the actions taken by the NLRB when resolving union election issues are generally quite deferential. The Fourth Circuit maintained that it will presume that the results of union elections are valid, and therefore it will not set aside the results of the election unless the NLRB “has clearly abused its discretion.” For factual findings made by the NLRB, the Fourth Circuit will affirm such findings so long as they “are supported by substantial evidence considering the record as a whole.”

Non-Supervisory Status

U.S. Fibers first argued that the NLRB erred in concluding that four employees were not supervisors as the term is defined under 29 U.S.C. § 152(11). To be considered a supervisor under the statute, an employee must perform one or more listed supervisory functions as well as exercise his or her authority using “independent judgment.” U.S. Fibers sought to establish that these four employees were supervisors because supervisors are generally prohibited from interfering with their employees’ freedom of choice in union elections.

U.S. Fibers made four separate arguments to show that the four employees were supervisors as defined under 29 U.S.C. § 152(11). The NLRB rejected each one of these arguments in turn and the Fourth Circuit upheld the NLRB’s decision to do so. The Fourth Circuit affirmed the NLRB’s findings on the matter under the deferential “substantial evidence” standard. The Fourth Circuit held that the record provided ample support for each of the NLRB’s findings. Therefore the Fourth Circuit was without justification to review the NLRB’s determination that the four employees at issue were not supervisors and thus were not prohibited from interaction with subordinate employees in regards to the union election.

U.S. Fibers then made a subsequent argument to the effect that even if the four employees at issue were not supervisors as defined under 29 U.S.C. § 152(11), they nevertheless engaged in objectionable conduct in the lead-up to the election. U.S. Fibers argued that the conduct of these employees was objectionable enough to constitute grounds for setting aside the results of the union election. The NLRB again disagreed with U.S. Fibers, and the Fourth Circuit affirmed the NLRB’s decision. As the Fourth Circuit explained, misconduct by non-supervisory employees is only grounds to set aside the results of a union election “if such conduct ‘was so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible.’” The Fourth Circuit held that the NLRB did not abuse its discretion in holding that the conduct complained of did not rise to the level required to set aside election results. As the Fourth Circuit reasoned, the conduct complained of was merely general comments about potential future job loss as a result of refusing to vote for unionization. Therefore, the Fourth Circuit held that the NLRB was more than justified in rejecting U.S. Fibers’ arguments on the subject.

Petition for Review Denied

Accordingly, the Fourth Circuit denied U.S. Fibers’ petition for review of the NLRB’s order and granted the NLRB’s cross-application for enforcement of its order.

By Anthony Biraglia

In the civil case of Oxygene v. Lynch, the Fourth Circuit denied in part and dismissed in part a petition for review of orders denying Wilerms Oxygene’s (“Oxygene”) application for deferral of removal under the Convention Against Torture (“CAT’) and a subsequent motion to reopen his removal proceedings. In a published opinion released on February 22, 2016, the Court found that it lacked jurisdiction to review the motion to reopen based on Oxygene’s status as aggravated felon under the Immigration and Nationality Act, and agreed with the Board of Immigration Appeals (“BIA”) decision to deny Oxygene’s application for deferral of removal under the CAT because Oxygene had not proven that Haitian officials had a specific intent to torture him upon his return. The Court thus dismissed Oxygene’s petition for review of the order denying his motion to reopen his removal proceedings, and denied his petition for review of the order denying his deferral of the removal under the CAT.

State Crime Convictions, Removal Proceedings, and Attempted CAT Deferral

Oxygene obtained lawful permanent resident status in the United States in 1996, two years after fleeing political violence in his native Haiti. Five years later, in 2001, Oxygene was convicted of several state crimes in Virginia, including burglary, grand larceny, robbery, and using a firearm to commit a felony. The Department of Homeland Security (“DHS”) commenced removal proceedings against Oxygene under 8 U.S.C. § 1227(a)(2), which provides that, among other things, aliens convicted of aggravated felonies or firearm offense are deportable. Oxygene conceded that his Virginia convictions made him removable under the statute, but applied for deferral of removal under the CAT.

Oxygene had a removal hearing in front of an Immigration Judge (“IJ”) to consider his application for deferral. During this hearing, Oxygene submitted evidence, including State Department reports, nongovernmental organization reports, and news articles, about the deplorable prison conditions in Haiti. Oxygene expressed a fear that he would face indefinite detention if deported, and that that detention would result in the activation of his latent tuberculosis without access to sufficient medical care. Despite finding the conditions of the Haitian prisons horrid and noting that some instances of mistreatment in Haitian prisons could constitute torture, the IJ denied Oxygene’s application for deferral because he had failed to prove that it was more likely than not that he would suffer torture upon his return to Haiti. He also failed to prove that Haitian authorities intentionally and deliberately detain deportees to inflict torture, which is required under the Foreign Affairs Reform and Restructuring Act (“FARRA”) that implemented the directives of the CAT.

Oxygene appealed to the BIA, asking it both to reverse the IJ’s denial and, alternatively, to remand the case to the IJ to consider whether of Oxygene’s recent diagnoses of post-traumatic stress disorder and depression affected the IJ’s ruling. The BIA affirmed the IJ’s decision and denied the motion for remand. Oxygene’s motion for reconsideration, which the BIA treated as a petition to reopen, was subsequently denied. Oxygene filed two appeals to the Fourth Circuit challenging both the BIA’s denial of the application for deferral and its denial of his motion to reopen. The Court consolidated the questions.

Jurisdictional Question

The Fourth Circuit explained that because Oxygene was an aggravated felon for the purposes of removal, its jurisdiction was limited by Congress through 8 U.S.C. § 1252 (a)(2)(C) to legal and constitutional questions. Therefore, the Court had to determine whether Oxygene’s arguments raised legal or constitutional questions, rather than factual questions, before it proceeded with any analysis of those arguments. Oxygene presented two arguments with respect to the BIA’s denial of his application for deferral, only one of which, namely that the precedent on which the BIA relied stated the incorrect legal test for the intent necessary to establish torture, raised legal issues. The Court retained jurisdiction over this question. The Court found that Oxygene’s challenge to the motion to reopen his removal proceedings raised factual issues over which it did not have jurisdiction. As a result, the Court addressed only Oxygene’s argument that In re J-E, the precedent upon which the BIA relied, incorrectly stated the legal test for the intent necessary to establish torture under the CAT.

CAT and FARRA Require that Torture be Specifically Intended

Congress implemented the CAT through the FARRA legislation in 1998. FARRA did not define torture, but rather instructed the Justice Department to promulgate regulations that reflected the Presidential and Senate understanding of the CAT. This understanding, which was reflected in the Justice Department regulations, included a specific intent requirement for torture. More specifically, the acts in question must be perpetrated with an intent to cause severe mental or physical injury. Acts do not constitute torture if mental or physical injury is an unintended consequence. In re J-E, the BIA adopted the specific intent requirement that each entity responsible for interpreting the CAT understood to be inherent in the definition of torture for the purposes of FARRA.

In re J-E also addressed the issue of the poor conditions in Haitian prisons. The BIA found that although Haitian officials were detaining deportees with knowledge of the poor conditions, the officials did not intentionally keep the prisons in poor condition to inflict torture on the deportees. The BIA concluded that the poor conditions were the result of a lack of resources and severe economic difficulties in the country rather than a delicate effort to torture prisoners.

The Court agreed with the BIA’s reasoning in In re J-E, finding that the specific intent requirement as the BIA had interpreted was consistent with the President’s and Congress’s understanding of torture under the CAT. It therefore afforded it deference in applying the same principles in Oxygene’s case.

Denied in Part and Dismissed in Part

For the reasons stated above, the Fourth Circuit denied Oxygen’s petition for review of an order to deny his application for deferral under the CAT, and dismissed his petition for review of the BIA’s denial of his motion to reopen his removal proceedings.


Ornate fountain with statue

By George Kennedy

On February 16, 2016, the Fourth Circuit issued its published opinion in the agency review case Adebowale Oloyde Ojo v. Loretta Lynch. In its order, the Fourth Circuit vacated the order of the Board of Immigration Appeals (“BIA”) denying a motion to reopen the removal proceedings of Adebowale Oloyde Ojo, a native of Nigeria and adopted son of a United States citizen.

Ojo’s Residence in the United States

Ojo was born in Nigeria in 1983 and lawfully entered the United States in 1989. Soon after entering the United States, Ojo’s uncle, a United States citizen, became his legal guardian. Ojo lived with his uncle from the age of six to the age of sixteen, at which point Ojo’s uncle filed a petition to adopt Ojo. In 2001, after Ojo had turned seventeen, the Circuit Court for Montgomery County, Maryland entered a judgment of adoption.

Between 2009 and 2012, Ojo was convicted of two-drug related offenses. In light of Ojo’s convictions, and based in the belief that Ojo had not derived U.S. citizenship as an adoptive child under 8 U.S.C. § 1101(a)(43)(B), the Department of Homeland Security (“DHS”) initiated proceedings to remove him from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii).

Statutory Framework and Removal Proceedings

Under 8 U.S.C. § 1227(a)(2)(A)(iii), the DHS is authorized to order that certain individuals be removed from the United States if the individuals are aliens and commit an “aggravated felony.” Ojo’s drug-related offenses qualify as “aggravated felonies” and therefore, the DHS is authorized to order his removal so long as he qualifies as an alien. A foreign-born child, however, is not deemed an alien, and thus is deemed a naturalized U.S. citizen under 8 U.S.C. § 1431(a) and § 1101(b)(1)(E) as long as the child was adopted by a citizen-parent while under the age of sixteen years.

In a removal proceeding in 2014, the immigration judge determined that Ojo was removable since he had committed an aggravated felony and was not a U.S. citizen. Critically, the court held that since Ojo was not adopted by his uncle until he was seventeen years old, he did not qualify as an adopted child under § 1101(b)(1)(E), and therefore had not become a U.S. citizen under 8 U.S.C. § 1431. The Board of Immigration Appeals affirmed the immigration judge’s ruling, agreeing that Ojo did not qualify as an adopted child under the statute because of Ojo’s adoption taking place after he had turned sixteen.

Ojo’s Motion to Reopen Removal Proceedings

Based upon a nunc pro tunc order, Ojo filed a motion to reopen the removal proceedings against him. The nunc pro tunc order, a court order that gives retroactive legal effect, was entered by a Maryland state court and made Ojo’s adoption effective on the day before he turned sixteen. Therefore, under the nunc pro tunc order, Ojo qualified as a U.S. citizen by being adopted by his U.S. citizen uncle while under the age of sixteen. The Board of Immigration Appeals, however, denied Ojo’s motion to reopen, holding that it does not recognize nunc pro tunc orders after a child reaches the age limit for the filing of the adoption petition. On appeal, Ojo alleges that the BIA improperly denied Ojo’s motion to reopen the removal proceedings.

BIA’s Denial of Ojo’s Motion to Reopen Vacated

The Fourth Circuit agreed with Ojo that the BIA should have allowed the reopening of the removal proceedings. In so holding, the Fourth Circuit argued that the BIA’s interpretation of § 1101(b)(1)(E) impermissibly conflicted with the Maryland state court’s nunc pro tunc order since the law of domestic relations is the domain of states and federal agencies may not interfere with the exercise of state power on the subject absent clear congressional authorization.

As the Fourth Circuit emphasized, “the Federal Government, through our history, has deferred to state-law policy decision with respect to domestic relations.” Therefore, federal agency decisions that override the orders of state courts in regards to domestic relations are inherently suspect. As the Fourth Circuit explained, federal agencies need clear Congressional authorization before encroaching upon traditional state powers. In this case, the Fourth Circuit held that the BIA was lacking such authorization.

The BIA, in refusing to reopen Ojo’s removal proceedings, essentially disregarded the nunc pro tunc order of the Maryland state court which declared that Ojo was adopted by his uncle before he turned sixteen and therefore became a U.S. citizen by virtue of that adoption under 8 U.S.C. § 1101(a)(43)(B). The Fourth Circuit held that the BIA’s disregard of the nunc pro tunc order was impermissible because the BIA is not empowered to review state court adoption orders. Instead, the BIA was obligated to adhere to the order of the Maryland state court which declared that Ojo was adopted before he turned sixteen. Therefore, the BIA should have reopened Ojo’s removal proceedings since the nunc pro tunc order qualified Ojo as a U.S. citizen.

Vacated and Remanded

The Fourth Circuit held that the BIA erred as a matter of law in denying Ojo’s motion to reopen removal proceedings, and consequently vacated the BIA order and remanded the case for further proceedings.

By Amanda Whorton

On December 18, 2015, the Fourth Circuit issued a published opinion in the civil case Montgomery County v. FCC. The court denied Montgomery County, Maryland’s (“County”) petition for review of the Federal Communications Commission’s (“FCC”) October 17, 2014 Order (“Order”).

The Spectrum Act

Congress passed the Spectrum Act as part of the Middle Class Tax Relief and Job Creation Act in 2012 as a way to encourage the growth of a national telecommunications network. Specifically at issue in the case is § 6409(a) (codified at 47 U.S.C. § 1455(a)) of the Act, which addresses wireless providers’ efforts to grow their networks by changing the electronic equipment that exists on top of wireless towers. Section 6409(a)(1) states that, “a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”

Together with § 6409(a)(2), these provisions forbid State and local authorities from using their zoning authority to deny wireless providers’ requests to modify equipment as long as the modification does not constitute a substantial change.

FCC’s Order

Congress gave the FCC the authority to implement the Spectrum Act and in implementing § 6409, the FCC issued their October 17, 2014 Order.

The County brought this administrative appeal against the FCC, arguing that the Order violates the Tenth Amendment and unreasonably defines the terms “base station” and “substantially change.”

This Order established a “deemed granted remedy,” which means that when a locality receives a modification request, they have 60 days to review the application if they so choose. They must approve the application unless they determine that it does not fall under the section. If the locality does not act within that 60-day limit, the request is deemed granted. The FCC desired to promote the “rapid deployment of wireless infrastructure.”

The FCC defined the term “base station” as “structures other than towers that support or house an antenna, transceiver, or other associated equipment.” This means that “base station” could conceivably constitute any structure. It further gave objective and numerical standards to establish when a modification request would “substantially change” the dimensions of the facility.

FCC’s Order Does Not Violate the Tenth Amendment

The County alleges that the Order violates the Tenth Amendment by making States and localities participate in federal efforts to grant permit applications. The Tenth Amendment forbids the federal government to require states to enforce federal laws. The Fourth Circuit held that the “deemed granted remedy” comports with the Tenth Amendment because it practically does not require states to take any action. States do not have to affirmatively approve applications, as an application will be deemed granted within the 60-day time period.

FCC is Subject to Chevron Deference

The Fourth Circuit subjected the FCC Order to deferential treatment under Chevron v. Natural Resources Defense Council. Step one of the analysis involves a court determining whether Congress has directly spoken on the issue or whether the terms are ambiguous. The Fourth Circuit found that the terms of the Spectrum Act are ambiguous and so they proceeded to step two of the analysis, which involves whether the FCC’s interpretation of the terms “base station” and “substantially change” are based on a “permissible construction of the statute.”

The County argued that localities should be able to review each application to determine what constitutes “substantial” modification. The Fourth Circuit found that the FCC came up with objective and concrete standards in order to eliminate the need for review by municipalities. The FCC limited the analysis to whether the proposed modification falls within the statute in order to promote the quick growth of wireless infrastructure. The Fourth Circuit held that under Chevron, the FCC’s interpretation of “substantially change” is reasonable.

The County alleged that the term “base station” should refer only to transmission equipment and not to the structure itself. However, the Fourth Circuit held that, again under Chevron, the FCC’s definition of “base station” is reasonable because it is consistent with Congress’ intent to promote the expansion of networks.

The Fourth Circuit Denied Petition for Review

The Fourth Circuit held that the FCC’s Order was fully compliant with the Tenth Amendment and reasonably interpreted the terms of § 6409(a) of the Spectrum Act. The court therefore denied the County’s petition for review.

By Anthony Biraglia

In the civil case of Etienne v. Lynch, the Fourth Circuit denied a petition to review an Immigration Board of Appeals decision ordering Eddy Etienne (“Etienne”) to be removed from the United States on the ground that he is an alien who has been convicted of an “aggravated felony.” After determining that jurisdiction existed, the Court turned to Etienne’s argument that his conviction was not an “aggravated felony” under the Immigration and Nationality Act (“INA”). In a published opinion released on December 30, 2015, the Fourth Circuit found that there was no reason to rebut the common-law presumption when interpreting the term “conspiracy,” and thus found Etienne’s conviction for conspiracy under Maryland law to fit within the definition of “aggravated felony” despite Maryland’s lack of an overt act requirement.

DHS Notice of Removal

Etienne entered the United States from Haiti as an undocumented immigrant in 1984. In 1996, Etienne was convicted of conspiracy to violate Maryland’s dangerous controlled substances law. After his release from prison, he continued to live in the United States as an undocumented immigrant until 2010, when he received Temporary Protected Status after an earthquake in Haiti. After denying Etienne renewal of his Temporary Protective Status in 2014, the Department of Homeland Security (“DHS”) initiated removal proceedings by serving Etienne with a Notice of Intent to Issue a Final Administrative Removal Order (“Notice of Intent”). The Notice of Intent stated that Etienne would be removed pursuant to expedited procedures as an alien convicted of an “aggravated felony.” Etienne checked a box on the form indicating he wished to challenge his removal, but did not attach any supporting documents or contest his removal on the ground that his conviction was not an “aggravated felony” under the statute. DHS later issued a Final Administrative Removal Order for Etienne’s removal. Etienne appealed to the Fourth Circuit after an asylum officer and Immigration Judge (“IJ”) determined that Etienne did not qualify for withholding of removal.

Jurisdictional Question

The Court first considered whether it had jurisdiction over Etienne’s petition for review. The jurisdictional question turned on whether Etienne exhausted his administrative remedies with DHS, which in turned rested on whether Etienne was required to have raised his claim that his conviction did not constitute an “aggravated felony” in DHS proceedings. Etienne argued, and the Court agreed, that DHS’s expedited removal proceedings did not provide an opportunity to challenge the legal basis for that removal.

The Notice of Intent gives aliens four options when contesting removal on the basis of deportability: 1) I am a citizen or national of the United States, 2) I am a lawful permanent resident of the United States, 3) I was not convicted of the criminal offense described above, 4) I am attaching documents in support of my rebuttal and request for further review. The Court held both that this language indicates that only factual challenges are available and that the Notice of Intent offers no obvious opportunity to raise legal challenges in expedited removal proceedings. Because exhaustion of administrative remedies only requires that an alien use all the steps the agency holds out, and the agency did not make it clear that legal challenges must be raised during removal proceedings, the Fourth Circuit determined that it had jurisdiction to consider Etienne’s petition for review.

Etienne’s Conspiracy Conviction Was an “Aggravated Felony” Under the INA 

After concluding that it had jurisdiction, the Fourth Circuit turned to the question of whether Etienne’s 1996 conviction in Maryland of conspiracy to violate controlled substances laws was an “aggravated felony” under the INA. The INA’s definition of “aggravated felony” includes illicit trafficking in a controlled substance and “conspiracy to commit” another “aggravated felony.” Whether Etienne’s conviction falls within this definition turned on whether, under the categorical approach, the term “conspiracy” is defined as it was at common law or by the contemporary meaning of the term, which includes an additional overt act requirement. The categorical approach involves looking only at the elements of a state crime, rather than the defendant’s underlying conduct, to determine whether a particular conviction constitutes an “aggravated felony.” If the elements are the same, the prior conviction counts as an “aggravated felony.”

The Court recognized a general presumption that Congress intends to adopt the common law meaning of statutory terms. At common law, “conspiracy” required only the act of conspiring rather than any overt act to further the conspiracy. One-third of the states retain the common law definition, while the other states require an overt act by the defendant to prove conspiracy. Congress evinced an intent that the INA apply broad when it defined “aggravated” offenses as applying to violations of state and federal law, and thus the Fourth Circuit determined that overriding the common law presumption would lead to the anomalous result that the term “conspiracy” would be null and void as to a third of the states.

Petition for Review Denied

The Court concluded that because the common law definition of “conspiracy” controlled, Etienne’s conviction under Maryland law, which required no overt act in furtherance of the conspiracy, qualified as an “aggravated felony” under the INA. Accordingly, it denied Etienne’s petition for review.


By Sarah Saint

On November 6, 2015, in the civil case of Eastern Associated Coal Corporation v. Director, Office of Workers’ Compensation Programs, the Fourth Circuit issued a published opinion affirming the Benefits Review Board’s (the “BRB”) decision to award black lung benefits to Arvis R. Toler. In granting Toler’s 2008 claim for benefits, an administrative law judge (“ALJ”) invoked the rebuttable presumption that a coal miner with a fifteen-year work history of underground coal mining and a totally disabling pulmonary impairment is disabled due to pneumoconiosis. Eastern Associated Coal Corporation (“Eastern”) argued that the ALJ contravened the Black Lung Benefits Act, 30 U.S.C. §§ 901–945 (“BLBA”), as well as the principles of finality and separation of powers. The Fourth Circuit found these arguments unpersuasive.

The Rebuttable Fifteen-Year Presumption

In order for a miner to avail itself of black lung benefits, he must prove four conditions: (1) he has pneumoconiosis; (2) his pneumoconiosis arose out of coal mine employment; (3) he is totally disabled; and (4) pneumoconiosis contributes to his total disability. BLBA provides for a rebuttable presumption of total disability due to pneumoconiosis to a cola miner who had worked underground for at least fifteen years and was suffering from totally disabling pulmonary impairment. The presumption can be rebutted if the defendant establishes either that the miner does not or did not have pneumoconiosis or that his respiratory or pulmonary impairment did not arise out of his employment in a coal mine. The fifteen-year presumption is further codified in Section 1556(c) of the Affordable Care Act.

When a coal miner seeks a subsequent black lung benefits claim after being previously denied, he must show a material change in the conditions. BRB decisions do not bar subsequent claims because of res judicata because the health of human being changes over one’s lifetime. Instead, the coal miner must prove a change of at least one of the four conditions of black lung benefits using evidence after the prior denial.

Toler’s Pulmonary Disease

Toler worked in Eastern’s coal mines for twenty-seven years, sixteen of which were underground. Between 1966 and 1997, he smoked a pack of cigarettes a day. He began to experience shortness of breath in the mid-1980s and in 1993, his failing health caused him to quit is job as a coal miner. Just before he quit, he filed his first claim for black lung benefits. The ALJ found that he was totally disabled by pulmonary disease but failed to show it was his work in the coal mines, not his smoking, that caused his pulmonary disease.  Therefore, the ALJ denied his claim for benefits, which the BRB affirmed.

Despite quitting the mines and smoking, Toler’s pulmonary disease worsened, requiring him to use supplemental oxygen. Toler filed a second claim for black lung benefits in 2008. Toler had a complete pulmonary evaluation where a doctor identified smoking and occupational exposure to coal dust as the causes of his condition. The ALJ granted Toler’s second claim for benefits, applying the rebuttable fifteen-year presumption. Eastern failed to rebut the presumption by proving that Toler did not suffer from pneumoconiosis or that his condition did not arise out of Toler’s coal mine employment. Eastern appealed to the BRB, which promptly remanded to allow Eastern to submit new evidence.

The ALJ again granted Toler’s claim for black lung benefits. Eastern again appealed to the BRB, where the BRB affirmed the ALJ’s decision because black lung benefits claims do not follow the same principles of res judicata, but the change in conditions framework. Further, because granting the second claim did not disturb the first claim, there was no separation of powers issue. Eastern then appealed to the Fourth Circuit.

Standard of Review

When reviewing an ALJ decision that has been affirmed by the BRB, the Fourth Circuit reviews de novo the BRB’s conclusions of law but confines the review to the grounds upon which the BRB based its decision. The question is whether the decision is in accordance with the law and supported by substantial evidence.

Fourth Circuit Rejects All of Eastern’s Arguments

Eastern argued that (1) the ALJ reopened a final judgment of an Article III court and thus contravened separation of powers and (2) the ALJ improperly used the fifteen-year presumption to establish that one of the applicable conditions had changed since the denial of Toler’s first claim.

The Fourth Circuit addressed the second contention first. It rejected Eastern’s argument that using the fifteen-year presumption contravenes the BLBA. The BLBA plainly shows that a coal miner can invoke the fifteen-year presumption to establish a change in an applicable condition if he has new evidence. All a coal miner has to do is prove at least one of the elements previously adjudicated against him by using evidence of his condition after the previous denial. Eastern attempted to argue that pneumoconiosis cannot be latent and progressive. The Secretary of Labor previously found that pneumoconiosis can be, and the Fourth Circuit declined to substitute its judgment for the Secretary’s. The Fourth Circuit went on to reject Eastern’s other arguments, including that Toler’s second claim was the same claim as the first, that Toler failed to submit new evidence. The Court thus concluded that Eastern’s statutory argument failed and that the ALJ and BRB correctly applied the law.

Addressing the first contention, that the decision contravened separation of powers, the Fourth Circuit rejected the proposition that deciding the second claim allowed Toler to relitigate a final judgment. The ALJ’s award of benefits did not reopen anything, much less a final judgment of an Article III court. The ALJ assessed Toler’s current pulmonary impairment, which was not the same as the impairment in the first judgment. Therefore, the Fourth Circuit rejected Eastern’s first contention.

Fourth Circuit denied Eastern’s Petition for Review

Because Eastern failed to rebut the fifteen-year presumption, the Fourth Circuit denied its petition for review.


By Malorie Letcavage

On June 1, 2015, the Fourth Circuit released its published opinion in the civil case Huntington Ingalls Industries, Inc. v. Eason. The appellant, Huntington Ingalls Industries, Inc. (HI), appealed the Administrative Law Judge’s decision to grant further compensation for temporary partial disability to appellee, Ricky Eason, under the Longshore and Harbor Worker’s Compensation Act (LHWCA). The Court held that since Eason was already receiving compensation for a scheduled permanent partial disability injury, to allow him to recover additional compensation because of an injury flare up would be impermissible double recovery under the act. Also, the Court held that HI and Eason had misinterpreted Potomac Electric Power Co. v. Director, Office of Workers’ Compensation Programs (PEPCO). The Fourth Circuit remanded the case to the Benefits Review Board to give an order dismissing Eason’s claim for temporary partial disability compensation.

Eason Received Compensation for His Knee Injury

Ricky Eason was injured while working as a pipe fitter at Newport News Shipping and Dry Dock Company, which was later acquired by Huntingdon Ingalls Industries, Inc. Eason was diagnosed with a torn meniscus and had to undergo surgery. Eason was completely out of work from October 2, 2008 through June 18, 2009 and received temporary total disability benefits for this time. After returning to work full-time, Eason was given a 14% lower extremity permanent impairment rating, meaning he had reached maximum medical improvement. This meant that normal healing was no longer likely to occur, and this status determined his permanent partial disability compensation.

For the seven months after the 14% rating diagnosis, Eason received his scheduled injury permanent partial disability compensation in addition to his regular weekly salary. Scheduled compensation covers specified body part injuries and pays compensation for a fixed number of weeks at two-thirds of the employee’s average weekly wage.

Eason then went back to his doctor complaining of pain in both his knees. The doctor put Eason on light duty restrictions, and continued to recommend the restriction on two subsequent visits after Eason complained of knee pain. However, Eason continued to work full-time without any light duty restrictions. Eason then brought a claim for temporary total disability or temporary partial disability under the LHWCA. This act is a federal workers’ compensation system for employees injured, disabled, or killed in the course of covered maritime employment.

Journey Between Administrative Law Judges and Benefits Review Board

The first hearing was held before Administrative Law Judge Richard Malamphy. Judge Malamphy found that the evidence did not support Eason’s claim for temporary total disability, and his disability compensation was restricted to the amount required by the schedule. Judge Malamphy also held that Eason was not entitled to additional compensation for any temporary partial loss of wage-earning capacity for the same knee injury.

On appeal, the Benefits Review Board (BRB) vacated Judge Malamphy’s decision. It instead held that the permanent partial disability benefits did not determine whether a claimant could recover for permanent total, temporary total, or temporary partial disability. The BRB remanded the case to determine if Eason’s light duty work restrictions prevented him from his usual work. If so, it would be temporary total disability and he could recover additional compensation.

On remand, Judge Sarno found that Eason could not complete his usual work during the time his doctor ordered him to light duty restrictions. Judge Sarno found that Eason was temporarily partially disabled and entitled to compensation of $845.82 per week.

HI then appealed Judge Sarno’s decision to the BRB. The BRB affirmed Judge Sarno’s findings that Eason could not do his usual work in the time period in question. It also affirmed the award of compensation. HI filed its petition for review to the Fourth Circuit.

Double Recovery Is Not Allowed

The Court had to decide if Eason, who was already receiving benefits from a scheduled permanent partial disability, could receive additional compensation when his injury flared up and became a temporary partial disability.

In Eason’s case, he was already receiving benefits from a scheduled permanent partial disability. When that changed to a temporary partial disability because his injury flared up, there was no additional loss of wage-earning capacity. Scheduled compensation takes into account all lost wages under LHWCA, so Eason could not recover for the flare up because his injury was already being accounted for and compensated. To allow Eason to recover for the injury flare up would be “impermissible double recovery” because the scheduled compensation was calculated to cover any additional flare ups.

The Fourth Circuit held that the only way to receive additional compensation after a permanent partial disability was if the circumstances warranted a reclassification of that disability to a permanent total or temporary total. However, Eason’s injury did not qualify for reclassification to a permanent total or temporary total disability. His knee injury was permanent and partial and had been classified as such ever since his diagnosis.

The Court held that Eason’s argument for compensation under LHWCA for additional temporary partial disability was unpersuasive. Such a recovery would be double recovery for the same injury. Additionally, the purpose of scheduled compensation is to provide quick compensation for certain injuries and cover employer’s liability. To allow Eason to recover again would defeat the intent of scheduled compensation. The court also rejected HI’s interpretation of LHWCA-that Eason was barred from receiving temporary total disability compensation because he was receiving scheduled disability compensation. The court found this interpretation was inconsistent with prior case law, and it undermined the purpose of the act.

Lastly, the Court found that PEPCO was not determinative for either party. In PEPCO, the court held that LHWCA did not allow employees to choose between compensation of actual loss of wage earning or the compensation associated with permanent partial disability from a scheduled injury. The court in PEPCO noted that some cases of under or overcompensating were an inevitable part of the system.The Fourth Circuit distinguished PEPCO explaining that a scheduled injury does not preclude an award of total disability, nor does it permit double recovery.

Case Remanded to Benefits Review Board

The Court granted the petition for review and remanded the case to the BRB to enter an order dismissing Eason’s claim for temporary partial disability under LHWCA.