Sebben, In re

Decision Date25 June 1987
Docket NumberNos. 86-1295,86-1315,s. 86-1295
Citation815 F.2d 475
PartiesIn re James SEBBEN, John Cossolotto, Bruno Lenzini, Charles Tonelli, on behalf of themselves and all others similarly situated, Petitioners. James SEBBEN; John Cossolotto; Bruno Lenzini; and Charles Tonelli, on behalf of themselves and all others similarly situated, Appellants, v. William E. BROCK, III; United States Secretary of Labor; United States Department of Labor; and Steven Breeskin, Acting Deputy Commissioner, U.S. Department of Labor, Division of Coal Mine Workers' Compensation, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

I. John Rossi, Des Moines, Iowa, for appellants.

John E. Beamer, Des Moines, Iowa, for appellees.

Before HEANEY and ROSS, Circuit Judges, and LARSON, * Senior District Judge.

HEANEY, Circuit Judge.

The appellants, James Sebben, John Cossolotto, and Charles Tonelli, are claimants and representatives of a group of claimants seeking benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901-42 (1982 & Supp. III 1985) (codified as amended in 1972, 1978, 1981 and 1984) (the BLBA). In the district court, they sought certification of a class and a writ of mandamus under 28 U.S.C. Sec. 1361 to compel the Department of Labor to consider or reconsider the claims of the proposed class under 30 U.S.C. Sec. 902(f)(2) (1982) as interpreted by Coughlan v. Director, Office of Workers' Compensation Programs, 757 F.2d 966 (8th Cir.1985). The district court denied the application for the writ and dismissed the claim without certifying the class. 1 It held that Coughlan was not applicable to claims previously denied by the Department of Labor and not timely pursued on appeal. It further held that it was without jurisdiction because the BLBA conferred exclusive jurisdiction upon the circuit courts of appeals to review administrative decisions under the BLBA.

On appeal, the Secretary of Labor (Secretary) concedes that the proper standard for review of the appellants' BLBA claims is articulated in Coughlan. The Secretary has also agreed to apply Coughlan in all pending cases in the Eighth Circuit.

In Coughlan, this Court considered claims of miners and their survivors who argued that the miners had become totally disabled due to black lung disease (pneumoconiosis) under the BLBA. The presence of pneumoconiosis in Coughlan was proved by a positive chest x-ray of the miner. We held that a positive x-ray was sufficient to create a rebuttable presumption of pneumoconiosis under 20 C.F.R. Sec. 410.490 (1986) (known as the "interim" regulation). We reasoned that even though the presumption of pneumoconiosis in section 410.490 originally only applied to claims made prior to July 1, 1973, a 1977 amendment to the BLBA, 30 U.S.C. Sec. 902(f)(2) (1982), revived the presumption and made it applicable to the claims presented. Coughlan, 757 F.2d at 967-68.

The appellants allege that they and the "class" all filed claims on or before March 31, 1980, thus entitling them to the section 410.490 presumption accorded to the claimants in Coughlan. 2 They further allege that they all submitted positive x-rays as evidence of total disability but were not afforded the section 410.490 presumption of disability mandated by Coughlan.

The Secretary contends that, even assuming the substantive validity of the "class" members' claims, the district court properly dismissed the action because: (1) the district court lacked jurisdiction; (2) the appellants and the class members failed to exhaust their administrative remedies; and (3) many of the potential class members failed to file timely administrative and judicial appeals and thus are jurisdictionally barred from seeking review at this time.

I. JURISDICTION OF THE DISTRICT COURT.

At the outset, we accept the proposition that where Congress establishes a special statutory review procedure for administrative actions, that procedure is generally the exclusive means of review for those actions. Louisville and Nashville R. Co. v. Donovan, 713 F.2d 1243, 1246 (6th Cir.1983); see also Heckler v. Ringer, 466 U.S. 602, 616-17, 104 S.Ct. 2013, 2022, 80 L.Ed.2d 622 (1984) (refusing to consider whether mandamus jurisdiction is barred by 42 U.S.C. Sec. 405(h) of the Social Security Act). Furthermore, the unavailability of simultaneous review of administrative actions in both the district court and the circuit court of appeals is strongly presumed. Louisville & Nashville R. Co., 713 F.2d at 1246. In "narrow circumstances," however, "some residuum of federal question subject matter jurisdiction may exist in the district court, although apparently otherwise precluded by a comprehensive statutory review scheme." Id. at 1246. That residuum may permit district courts in the proper circumstances to exercise mandamus jurisdiction over the agency under the BLBA. Id.

Before a district court can issue a writ of mandamus under section 1361 and exercise jurisdiction outside of that provided in the BLBA, the claimant must show either "patent violation of agency authority or manifest infringement of substantial rights irremediable by the statutorily prescribed method of review." Id. (citing Nader v. Volpe, 466 F.2d 261, 265-66 (D.C.Cir.1972)). In addition, the claimant must show that the agency, over which jurisdiction is exercised, has a clear nondiscretionary duty to act. Heckler v. Ringer, 466 U.S. at 616-17, 104 S.Ct. at 2022.

The circumstances of this case reveal that review of claims under the BLBA cannot remedy the infringement on the substantial rights of the "class" members. The Department of Labor has agreed to follow Coughlan in all cases pending in the Eighth Circuit after the date of that decision. The agency, however, refuses to reopen the claims of the "class" members here which were adjudicated prior to Coughlan and in which the claimant failed either to appeal to the Benefits Review Board (BRB) within thirty days after an initial determination, see 30 U.S.C. Sec. 932(a) (1982) (incorporating 33 U.S.C. Sec. 921(a) (1982) of the Longshore and Harbor Workers' Act), or within sixty days to the court of appeals after a final agency decision. See id. (incorporating 33 U.S.C. Sec. 921(c) (1982) of the Longshore and Harbor Workers Act). Therefore, according to the Secretary, these claimants should not be afforded the benefit of the Coughlan decision because the BLBA provides the exclusive means of review of the class members' claims, and the periods of limitation in sections 921(a) and (c) bar their claims.

These claimants, however, deserve to have their claims heard. In the past, claimants under the BLBA have encountered enormous frustration in the processing of their claims due to administrative delays and determinations under improper standards. Congress has repeatedly attempted to ease the burden of proof of disability and to expedite black lung claims. More specifically, the BLBA's legislative history reveals Congress twice, in 1972 and 1977, instructed that then-pending or denied claims be reopened in order that claims could be readjudicated under what Congress believed to be more fair standards of disability.

The BLBA as established in 1969 (originally titled the Federal Coal Mine Health and Safety Act of 1969) provided benefits to coal miners who were totally disabled due to pneumoconiosis. Pub.L. No. 91-173, 83 Stat. 742 (codified as amended at 30 U.S.C. Secs. 901-41 (1982 & Supp. III 1985)). The 1969 Act was divided into three sections: Part A (sections 901-02) provided general findings and definitions; Part B (sections 921-25) applied to claims filed before December 31, 1972, administered by the Secretary of Health, Education and Welfare; Part C (sections 931-41) applied to claims made after December 31, 1972. 3

To qualify for benefits, the 1969 Act required a claimant to establish that the miner (1) had pneumoconiosis, (2) that arose out of coal mine employment, (3) causing total disability or death. 30 U.S.C. Sec. 902 (1976) (codified as amended in 1972). To assist claimants in meeting these requirements, the 1969 Act provided an irrebuttable presumption, see 30 U.S.C. Sec. 921(c)(3), and a rebuttable presumption. The rebuttable presumption presumed either that a disabled, 30 U.S.C. Sec. 921(c)(1), or a deceased, 30 U.S.C. Sec. 921(c)(2), miner's pneumoconiosis arose out of coal mine employment if the miner had worked ten years or more in an underground mine.

Claimants under the 1969 Act, however, encountered difficulties in proving total disability under the rebuttable presumption. X-rays initially read as positive were reread as negative by government-retained radiologists ("B-readers"); the standard of disability in the 1969 Act--requiring a miner to be unable to do any substantial work, 30 U.S.C. Sec. 902(f)--proved difficult to meet; and deceased miners' spouses lacked sufficient evidence to prove the miners died from pneumoconiosis. See J.S. Lapatto, The Federal Black Lung Program: A 1983 Primer, 85 W.Va.L.Rev. 677, 683-84 (1983). Because of the difficulties encountered by black lung claimants in gaining benefits under the 1969 Act, Congress found that the 1969 Act had not benefited "countless miners and their survivors who were the intended beneficiaries of the Black Lung program." Senate Rep. No. 92-743, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code and Cong. & Admin.News 2305, 2307. Thus, in 1972, before the effective date of Part C, Congress amended the 1969 Act. Pub.L. No. 92-303, 86 Stat. 153 (1972) (codified at 30 U.S.C. Secs. 901-41 (1976)). The 1972 amendments extended the filing deadline under Part B to June 30, 1973, and delayed the effective date of Part C until January 1, 1974. 30 U.S.C. Sec. 925 (1982). 4 The amendment also created an additional rebuttable presumption of pneumoconiosis for a miner without a positive x-ray. The presumption applied if the miner had fifteen years...

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