Mary Fox v. Elk Run Coal Company, Inc.
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 11-0793-BLA. [999270243]. [12-2387, 12-2402]
Appeal: 12-2387
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2387
MARY L. FOX, on behalf of Gary N. Fox, deceased,
Petitioner,
v.
ELK RUN COAL COMPANY, INCORPORATED; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF
LABOR,
Respondents.
No. 12-2402
ELK RUN COAL COMPANY, INCORPORATED,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; MARY L. FOX, on behalf of Gary
N. Fox, deceased,
Respondents.
On Petitions for Review of Orders of the Benefits Review Board.
(11-0793-BLA; 09-0438-BLA)
Argued:
October 29, 2013
Decided:
January 3, 2014
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Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit
Judges.
Affirmed by published opinion.
Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Judge Floyd joined.
ARGUED: Allan Norman Karlin, Morgantown, West Virginia, for
Petitioner/Cross-Respondent.
Alvin Lee Emch, JACKSON KELLY,
PLLC, Charleston, West Virginia, for Respondent/Cross-Petitioner
Elk Run Coal Company, Incorporated. ON BRIEF: John Cline, Piney
View, West Virginia; Sarah W. Montoro, ALLAN N. KARLIN &
ASSOCIATES, Morgantown, West Virginia, for Petitioner/CrossRespondent. Kathy Lynn Snyder, JACKSON KELLY, PLLC, Morgantown,
West Virginia, for Respondent/Cross-Petitioner Elk Run Coal
Company, Incorporated.
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WILKINSON, Circuit Judge:
Appellant
Mary
Fox
contends
that
Elk
Run
Coal
Company
committed fraud on the court and thereby deprived her husband,
coal miner Gary Fox, of nearly a decade of benefits under the
Black Lung Benefits Act (“BLBA”).
(“BRB”)
found
that
Elk
Run’s
The Benefits Review Board
conduct
was
not
sufficiently
egregious to meet the high bar for a claim of fraud on the court
because it did not amount to an intentional design aimed at
undermining the integrity of the adjudicative process under the
BLBA.
We now affirm and find that Elk Run’s conduct, while
hardly admirable, did not, under clear Supreme Court and circuit
precedent, demonstrate the commission of a fraud upon the court.
See, e.g., Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322
U.S. 238 (1944); Great Coastal Express, Inc. v. Int’l Bhd. of
Teamsters, 675 F.2d 1349 (4th Cir. 1982).
I.
A.
Pneumoconiosis,
progressive
and
commonly
irreversible
known
as
pulmonary
“black
condition
afflict those regularly exposed to coal dust.
v. Dir., OWCP, 484 U.S. 135, 138 (1987).
lung,”
that
is
a
can
Mullins Coal Co.
In recognition of the
effects of this disease, Congress adopted the BLBA to require
private coal companies to compensate miners and their families.
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Id. at 138-39.
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The BLBA permits coal workers or their surviving
dependents to apply for benefits by filing a claim with the
District Director of the U.S. Department of Labor’s Office of
Workers’
Compensation
§§ 725.301-725.423.
Programs
(“Director”).
20
C.F.R.
In order to award benefits, the Director
must find that the coal worker has pneumoconiosis arising out of
his or her coal mine employment, is totally disabled, and the
pneumoconiosis
disability.
substantially
contributed
to
the
worker’s
Id. § 725.202(d).
Once the Director makes an initial finding on whether the
claimant is entitled to benefits, either party may request an
evidentiary
Such
a
hearing
request
Administrative
before
initiates
Procedure
an
an
Act
ALJ.
Id.
§§ 725.401-725.480.
adversarial
(“APA”).
process
the
§ 725.452(a);
Id.
under
Elm
Grove Coal Co. v. Dir., OWCP, 480 F.3d 278, 283 (4th Cir. 2007)
(finding
that
adjudication
the
BLBA
incorporates
procedures);
see
also
the
APA’s
U.S.
Dep’t
administrative
of
Labor
v.
Triplett, 494 U.S. 715, 733 (1990) (Marshall, J., concurring)
(noting that “the black lung process is highly adversarial”).
To encourage coal workers to pursue their claims with the aid of
counsel, the BLBA includes a provision for reasonable attorney’s
fees
if
the
claimant
is
successful.
30
U.S.C.
§ 932(a)
(incorporating 33 U.S.C. § 928(a)).
This adversarial posture
between
event
the
parties
remains
in
4
the
that
either
party
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appeals the ALJ’s ruling to the BRB, 20 C.F.R. § 725.481, as
well as in any subsequent appeals to the circuit covering the
state in which the claimant allegedly contracted pneumoconiosis,
33 U.S.C. § 921(c).
B.
Gary Fox worked in West Virginia as a coal miner for over
30 years before his death from coal worker’s pneumoconiosis in
2009. 1
X-rays
taken
of
his
chest
unidentified mass in his right lung.
West
Virginia
named
Dr.
Gerald
in
1997
revealed
an
In 1998, a pathologist in
Koh
concluded
from
surgical
samples that, among other things, the mass was an “inflammatory
pseudotumor,” but did not diagnose pneumoconiosis.
Nonetheless,
Fox filed a claim in 1999 for benefits under the BLBA which the
Director granted in early 2000.
Because Fox was employed by Elk
Run at the time of his claim, Elk Run exercised its right under
the BLBA to request a hearing before an ALJ.
Prior to the hearing, Elk Run obtained the pathology slides
from
Fox’s
1998
surgical
procedure
and
provided
them
to
two
additional pathologists: Dr. Richard Naeye and Dr. P. Raphael
Caffrey.
Both
conclusions.
pathologists
Elk
Run
also
wrote
reports
requested
1
summarizing
opinions
from
their
several
Gary Fox’s surviving spouse and successor-in-interest,
Mary Fox, took over his claim after his death and all references
to the appellant as “Fox” after his passing are to her.
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radiologists and submitted them, along with Dr. Koh’s report but
not Dr. Naeye’s or Dr. Caffrey’s, to four pulmonary specialists.
The four pulmonologists concluded that, based on the evidence
available
to
them,
Fox
likely
did
not
have
coal
worker’s
pneumoconiosis at that time.
The evidentiary hearing occurred on September 19, 2000, at
which
Fox
appeared
counsel.
The
ALJ
pro
se
and
informed
Elk
Fox
Run
that
was
he
represented
had
a
right
by
to
representation and, when Fox responded that he had not been able
to
find
an
willingness
attorney,
to
proceed
the
ALJ
without
confirmed
his
counsel.
(Fox
competency
had,
and
however,
procured an attorney to represent him in his concurrent West
Virginia worker’s compensation claim related to pneumoconiosis).
During the hearing, the ALJ admitted into the record the reports
of Dr. Koh, the radiologists, and the pulmonologists, along with
additional exhibits offered by Elk Run.
own testimony.
Fox offered only his
Elk Run did not submit the reports of Dr. Naeye
or Dr. Caffrey, nor did it disclose their existence to Fox or
the ALJ.
The ALJ denied Fox’s claim on January 5, 2001, finding
that Fox failed to show he had pneumoconiosis or that he was
totally disabled due to pneumoconiosis.
Fox did not appeal.
Fox retained counsel and filed a new claim on November 8,
2006.
The Director again found him eligible for benefits and
Elk Run once more requested an evidentiary hearing.
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But this
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time Fox, through his attorney, conducted vigorous discovery and
requested that Elk Run hand over the 1998 pathology slides and
disclose additional documents and reports pertaining to Fox’s
medical condition.
liability
for
After some foot dragging, Elk Run admitted
Fox’s
2006
claim
and
disclosed
the
slides
and
several documents to Fox, including the pathology reports of Dr.
Naeye
and
Dr.
Caffrey.
Recognizing
that
the
BLBA
bars
any
entitlement to benefits before the ALJ’s 2001 judgment became
final, 20 C.F.R. § 725.309(c)(6), Fox moved to set aside that
judgment, contending that Elk Run had committed fraud on the
court because it had not disclosed the Naeye and Caffrey reports
to its expert pulmonologists.
On July 20, 2011, the ALJ found that the Naeye and Caffrey
reports
diagnosed
“complicated
pneumoconiosis,”
J.A.
416,
and
thus “clearly contradicted Dr. Koh’s finding of an inflammatory
pseudotumor,” J.A. 427.
The ALJ then determined that Elk Run’s
failure to disclose the Naeye and Caffrey reports to its other
expert
witnesses
tainted
their
conclusions
and
that,
while
“perhaps initially not concocted as such,” J.A. 427, Elk Run’s
“actions, taken as a whole, constitute a scheme to defraud,”
J.A. 429.
Dismissing Elk Run’s arguments that its attorneys
were not defrauding the court but rather zealously representing
their client, the ALJ ruled that Elk Run had committed fraud on
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the court, set aside the 2001 judgment, and awarded Fox benefits
dating back to January 1997.
On appeal, the BRB accepted the ALJ’s factual findings, but
held that Elk Run’s “conduct did not rise to the level of fraud
on the court” because Elk Run “did not engage in a deliberate
scheme to directly subvert the judicial process.”
J.A. 444.
Because Elk Run had admitted liability for Fox’s 2006 claim, the
BRB held that Fox was entitled to benefits beginning in June
2006.
One member of the BRB panel dissented, writing that Elk
Run’s conduct
constituted
fraud
on
the
court
because
it
had
failed to disclose all the relevant medical evidence to its own
experts.
II.
Fox asks this court to set aside the ALJ’s 2001 judgment,
which
would
have
the
effect
of
moving
the
onset
of
her
entitlement to benefits under the BLBA from June 2006 to January
1997.
She claims that the judgment was fraudulently procured
because,
although
reports
diagnosed
intentionally
Elk
failed
Run
knew
that
the
her
husband
with
to
disclose
those
Naeye
and
Caffrey
pneumoconiosis,
reports
to
its
it
own
experts and later relied on the conclusions of those experts to
controvert Fox’s 1999 claim that he had pneumoconiosis.
While
Elk Run’s conduct over the course of this litigation warrants
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nothing approaching judicial approbation, we are unable to say
that it rose to the level of fraud on the court.
The
Benefits
standard
Act
is
of
well
review
in
settled.
cases
We
under
sustain
the
an
Black
ALJ’s
Lung
factual
findings if there is “substantial evidence” on the record to
support them.
Harman Min. Co. v. Dir., OWCP, 678 F.3d 305, 310
(4th Cir. 2012).
Fox maintains that, whereas the BRB should
have affirmed the ALJ’s ruling on substantial evidence grounds,
it instead improperly held that the ALJ erred “as a matter of
law.”
J.A. 444.
However, the operative facts here are simply
not disputed and only the application of the fraud on the court
doctrine is at issue.
de novo.
That issue is one of law, which we review
See Westmoreland Coal Co. v. Cox, 602 F.3d 276, 282
(4th Cir. 2010).
A.
Fraud
on
the
court
is
not
your
“garden-variety
fraud.”
George P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d 44, 48
(1st Cir. 1995).
opponent
has
Ordinarily, when a party believes that its
obtained
a
court
ruling
by
“fraud”
or
“misrepresentation,” it may move for relief under Federal Rule
of Civil Procedure 60(b)(3).
Litigants have one year following
the final judgment in which to make a Rule 60(b)(3) motion.
Fed. R. Civ. P. 60(c)(1).
As we recognized in Great Coastal
Express, Inc. v. International Brotherhood of Teamsters, this
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one year limit balances the competing interests of relieving an
aggrieved
party
from
decision
against
the
the
hardships
deep
of
“[r]espect
an
for
unjustly
the
judgments . . . engrained in our legal system.”
1354-55 (4th Cir. 1982).
powerful
interest
in
procured
finality
of
675 F.2d 1349,
Therefore, after a year, the public’s
leaving
final
judgments
undisturbed
generally triumphs and “ordinary” fraud will not suffice to set
aside a ruling.
Id. at 1355.
But, as often happens with a rule, there is an exception.
The savings clause in Rule 60(d)(3) permits a court to exercise
its inherent equitable powers to obviate a final judgment after
one year for “fraud on the court.”
The Supreme Court addressed
this doctrine in Hazel-Atlas Glass Co. v. Hartford-Empire Co.,
when it set aside a fraudulently obtained ruling by finding that
it
was
the
product
carefully
executed
“integrity
of
of
(1944).
the
one
party’s
scheme”
judicial
that
“deliberately
severely
process.”
322
planned
undermined
U.S.
238,
and
the
245-46
The Court held that ordinary cases of fraud would not
suffice to violate the “deep rooted policy in favor” of finality
but that, on the facts before it, the aggrieved party could not
“have
been
fraud.”
expected
to
do
Id. at 244, 246.
more
than
it
did
to
uncover
the
Moreover, the harm of the fraud in
Hazel-Atlas was so broad that it “involve[d] far more than an
injury to a single litigant,” but was rather a “wrong against
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the institutions set up to protect and safeguard the public,
institutions
in
which
consistently
with
the
fraud
good
cannot
order
complacently
of
be
society.”
tolerated
Id.
at
246.
Thus, not only must fraud on the court involve an intentional
plot to deceive the judiciary, but it must also touch on the
public interest in a way that fraud between individual parties
generally does not.
We have likewise underscored the constricted scope of the
fraud on the court doctrine.
fraud
on
construed
60(b)(3).
the
court
very
is
a
narrowly”
In Great Coastal, we held that
“nebulous
lest
675 F.2d at 1356.
it
concept”
entirely
that
“should
swallow
up
be
Rule
We stressed that this doctrine
should be invoked only when parties attempt “the more egregious
forms of subversion of the legal process . . . , those that we
cannot necessarily expect to be exposed by the normal adversary
process.”
Id.
at
1357.
Even
the
“perjury
and
fabricated
evidence” present in Great Coastal, which were “reprehensible”
and unquestionable “evils,” were not adequate to permit relief
as fraud on the court because “the legal system encourages and
expects litigants to root them out as early as possible.”
Id.
Instead, the doctrine is limited to situations such as “bribery
of a judge or juror, or improper influence exerted on the court
by an attorney, in which the integrity of the court and its
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ability to function impartially is directly impinged.”
Id. at
1356.
In succeeding cases we have emphasized this circumscribed
understanding of fraud on the court.
Co.
v.
Azcon
Scrap
Corp.,
we
held
In Cleveland Demolition
that
fraud
on
the
court
involves “corruption of the judicial process itself” and thus
the
doctrine
evidentiary
(internal
cannot
support
conflict.”
quotation
allegations
827
marks
F.2d
984,
omitted).
involving
a
986
Cir.
To
(4th
hold
“routine
1987)
otherwise,
we
found, would “seriously undermine[] the principle of finality”
by permitting “parties to circumvent the Rule 60(b)(3) one-year
time limitation.”
Id. at 987.
Later, in In re Genesys Data
Technologies, Inc., we recognized that “[c]ourts and authorities
agree that fraud on the court must be narrowly construed” or it
would “subvert the balance of equities” contained within Rule
60(b)(3).
204 F.3d 124, 130 (4th Cir. 2000) (internal quotation
marks omitted).
“Because the power to vacate a judgment for
fraud upon the court is so free from procedural limitations, it
is limited to fraud that seriously affects the integrity of the
normal process of adjudication.”
omitted).
We
therefore
held
Id. (internal quotation marks
that
“[f]raud
between
parties”
would not be fraud on the court, “even if it involves [p]erjury
by a party or witness.”
Id. (internal quotation marks omitted).
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B.
Proving fraud on the court thus presents, under Supreme
Court and circuit precedent, a very high bar for any litigant.
Fox has not met that high standard in this case.
alleged
fraud
does
not
directly
impact
the
Elk Run’s
integrity
and
workings of the black lung benefits process in the way that
Hazel-Atlas and Great Coastal require.
Fox does not allege that
Elk Run bribed or otherwise improperly influenced any officials
involved in the benefits process, nor does she claim that Elk
Run
encouraged
perjury.
certain
or
conspired
with
its
witnesses
to
suborn
Rather, she argues that Elk Run’s nondisclosure of
pathology
reports
to
its
own
experts
“instills
uncertainty and cynicism” into the black lung benefits system.
But
that
is
not
harmful
institutions
set
up
enough
to
to
protect
Hazel-Atlas, 322 U.S. at 246.
be
and
a
“wrong
safeguard
against
the
the
public.”
Indeed, if alleged “uncertainty
and cynicism” were the standard for fraud on the court, we find
it
difficult
adjudicatory
canopy.
personal
to
imagine
proceeding
Every
loss
an
any
would
litigant
into
how
not
could
alleged
claim
fall
be
of
under
expected
systemic
fraud
its
to
harm.
in
an
extensive
inflate
Elk
its
Run’s
nondisclosure simply does not “amount[] to anything more than
fraud
involving
injury
to
a
single
litigant.”
Jandrucko, 860 F.2d 556, 560 (2d Cir. 1988).
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that
is
not
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exemplary
need
not
undermine
the
“integrity of the court and its ability to function impartially”
within the meaning of “fraud on the court.”
F.2d at 1356.
each
side
Great Coastal, 675
The adversary process exists because it permits
to
present
its
own
case
as
well
as
to
test
its
opponent’s in order to expose vulnerabilities of every sort and
variety.
It is, to some extent, a self-policing mechanism.
The
relevant provision of the APA contains no requirement that a
party present the most probative evidence in its possession;
instead, it is permitted to offer any evidence it would like so
long as that evidence is relevant.
5 U.S.C. § 556(d) (“Any oral
or documentary evidence may be received, but the agency as a
matter of policy shall provide for the exclusion of irrelevant,
immaterial, or unduly repetitious evidence.”).
the
ALJ
found
probative”
than
the
Naeye
Dr.
and
Koh’s,
J.A.
Caffrey
428,
Therefore, while
opinions
Elk
Run
were
was
“more
under
no
obligation to advance those reports as evidence because someone
else may believe them superior.
Thus it falls to each party to shape and refine its case,
subject of course to the risk that its adversary will discredit
it.
One elementary component of the adversary system is cross-
examination,
“greatest
truth.”
which
legal
the
engine
Supreme
ever
Court
invented
has
for
recognized
the
is
discovery
the
of
California v. Green, 399 U.S. 149, 158 (1970) (internal
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quotation marks omitted).
Pg: 15 of 20
Cross-examination helps to safeguard
against the ALJ’s concern that, if parties were free to withhold
probative
medical
medical
evidence
opinion
diagnosis.”
could
J.A. 430.
from
never
their
be
experts,
accepted
as
“an
a
expert
reliable
A party relying on weak evidence to
sustain its case runs the risk that its experts will crumble
upon cross-examination or otherwise be impeached by the opposing
party.
The
presence
of
that
deterrent
means,
however,
that
routine evidentiary disputes as this cannot clear the high bar
for an action for fraud on the court.
Cleveland Demolition, 827
F.2d at 986.
In
fact,
this
case
illustrates
the
principle.
The
ALJ
recognized that Elk Run’s case in the 1999 claim was vulnerable
when it found that Elk Run “built its case around Dr. Koh’s
pathology report.”
J.A. 428.
Fox had the right to cross-
examine Dr. Koh regarding his qualifications and conclusions.
5 U.S.C. § 556(d) (“A party is entitled to . . . conduct such
cross-examination
as
may
be
required
for
a
full
and
true
disclosure of the facts.”).
He had the right to cross-examine
Elk
test
Run’s
other
experts
to
reliance on Dr. Koh’s report.
their
understanding
of
and
He had the right to question the
apparent lack of additional pathology reports.
He had the right
to present a contradictory medical opinion from a pathologist of
his own choosing.
That he did none of those things is not so
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much an indictment of the adversary system as it is a statement
that he did not fully avail himself of it.
Fox
admits
that
an
attorney
experienced
in
black
lung
claims would have recognized that “something was fundamentally
wrong” with how Elk Run presented its case as to Fox’s 1999
claim.
Appellant’s Resp. 16.
attorney
for
his
2006
Indeed, once Fox retained an
claim,
he
pursued
discovery
and
was
successful in obtaining the pathology reports and 1998 pathology
slides.
Elk Run’s alleged misconduct could have been “exposed
by the normal adversary process.”
1357.
Great Coastal, 675 F.2d at
Our legal system therefore expected Fox to uncover Elk
Run’s conduct during the adjudication of Fox’s 1999 claim or, if
it amounted to Rule 60(b)(3) fraud, at most one year after the
2001 judgment became final.
George P. Reintjes, 71 F.3d at 49
(holding that even perjury is “a common hazard of the adversary
process
with
which
litigants
are
equipped
to
deal
through
discovery and cross-examination and, where warranted,” a Rule
60(b)(3) motion).
Fox
contends
that
the
black
lung
benefits
process
is
somehow different from an ordinary adversarial procedure and, in
effect, urges us to alter that process by finding that Elk Run
had
a
duty
to
share
with
information it had obtained.
its
experts
all
of
the
medical
To that end, the ALJ found that
Elk Run had a duty to “provide accurate evidence to its expert
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witnesses.”
J.A.
430.
But
Pg: 17 of 20
that
duty--and
the
judicial
supervision that would inescapably go with it--would carry ALJs
far afield from their role as neutral arbiters.
See Underwood
v. Elkay Min., Inc., 105 F.3d 946, 949 (4th Cir. 1997) (finding
that the ALJ in a BLBA proceeding is the “trier of fact” charged
with “evaluat[ing]” and “weigh[ing] the evidence”) superseded on
other grounds as recognized in Elm Grove, 480 F.3d at 291.
duty
imposed
upon
a
party
to
furnish
its
expert
Any
witnesses
certain documents would improperly impinge on that party’s right
to develop its own evidence, handle its own experts, and present
its own case.
See, e.g., Hickman v. Taylor, 329 U.S. 495, 511
(1947) (holding in the context of the work product privilege
that
the
adversary
system
requires
a
party’s
attorney
be
permitted to “assemble information, sift what he considers to be
the
relevant
theories
and
interference”).
from
the
irrelevant
plan
his
strategy
facts,
without
prepare
undue
his
and
legal
needless
Fox’s proposed duty would launch an infinite
number of new challenges by parties alleging their opponents’
breach of the duty, thereby thrusting judges deep into the heart
of the adversary process and the attorney-client relationship.
What Fox requests is something akin to a civil Brady rule,
where
parties
would
be
obligated
to
disclose
or
at
least
identify any evidence helpful to their opponent regardless of
whether it is privileged.
See Brady v. Maryland, 373 U.S. 83,
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86 (1963) (finding that due process requires the government to
disclose to a criminal defendant information favorable to his
defense).
But courts have only in rare instances found Brady
applicable in civil proceedings, mainly in those unusual cases
where the potential consequences “equal or exceed those of most
criminal convictions.”
Demjanjuk v. Petrovsky, 10 F.3d 338, 354
(6th Cir. 1993); see also Brodie v. Dep’t of Health and Human
Servs., No. 12-1136 (RMC), slip op. at 9-10 (D.D.C. June 27,
2013)
(examining
cases
and
administrative hearing).
this
administrative
government’s
duty
declining
apply
Brady
in
an
We see no reason to expand Brady to
adjudication.
to
to
disclose
In
under
a
criminal
Brady
case,
the
from
the
arises
obligation of the prosecutor not simply to convict, but to see
that justice is done.
11 (1976).
United States v. Agurs, 427 U.S. 97, 110-
The civil context is not analogous.
There, the
basic duty of an attorney to his or her client is not offset by
the countervailing duty a government prosecutor has to exercise
in the interest of justice his or her awesome and extraordinary
powers.
Fox points out that her husband proceeded pro se before the
administrative tribunal in his 1999 claim, but that point, while
appealing, carries only so far.
Fox was instructed of his right
to an attorney who would receive compensation if his claim was
successful.
He
had
retained
counsel
18
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his
state
benefits
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claim, demonstrating that he knew the advantages of professional
representation.
It is true that Fox’s pro se presentation of
his 1999 claim did not match the counselled presentation of his
2006 claim.
But the narrow confines of fraud on the court
doctrine have never permitted claimants to relitigate old claims
they have lost, simply because a better prior case presentation
might have resulted in an earlier success.
Finally, courts are
not at liberty to exceed the parameters of what Congress has
provided.
Of course, Congress might have provided counsel to
miners under the BLBA at public expense, but it did not do so.
Instead, Congress left to the practiced judgment of attorneys
which claims for benefits they thought were most likely to be
successful.
And in doing so, Congress adopted within the BLBA
the dynamics of the adversary process.
See Triplett, 494 U.S.
at 733 (Marshall, J., concurring) (“Because an operator faces
the prospect of paying significant awards, it is often willing
to
pay
substantial
legal
fees
to
defend
against
black
lung
claims.”); Treadway v. Califano, 584 F.2d 48, 49 (4th Cir. 1978)
(holding that in its 1972 amendments to the BLBA, Congress made
the
benefits
adjudication
process
“adversarial”
because
“the
burden of the payment might be imposed upon an individual coal
operator or upon the industry”).
Recognizing Fox’s claim would
alter Congress’s adversary design beyond our authority to do so.
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Elk Run insists it has done nothing wrong and that it has
proceeded properly at every turn.
evidence
in
general
and
Dr.
It maintains that the medical
Naeye’s
pathology
report
in
particular are more ambiguous than Fox makes them out to be.
It
further notes that no party is bound by every conclusion of the
experts it may hire.
Black
Lung
Rep.
See Horn v. Jewell Ridge Coal Corp., 6
(Juris)
1-933,
1-937
(Ben.
Rev.
Bd.
1984).
Finally, it contends that it did not have any intent to defraud
the court by declining to disclose the reports of Dr. Naeye and
Dr. Caffrey because, as non-testifying consulting experts, their
reports
were
protected
by
the
work
product
privilege--a
protection that would have been lost if the reports had been
provided to Elk Run’s testifying experts.
F.3d at 303 n.25.
See Elm Grove, 480
We see no reason to address these matters
when a plain, narrow disposition is available.
We bestow no
blessing and place no imprimatur on the company’s conduct, other
than to hold that it did not, under a clear chain of precedent,
amount to a fraud upon the court.
III.
For the foregoing reasons, the judgment of the Benefits
Review Board is affirmed.
AFFIRMED
20
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