Comment from William Reed, Sturm College of Law

Mainly, I write to applaud this change, particularly the reinstatement of the Fifteen-Year Rule creating a rebuttable presumption in favor of long-time miners who have been disabled by their work. The Byrd amendments seemed to represent no more than special interest legislation at its worst, with the little guy being crushed under the toe of well-heeled coal producers and their lackeys in Congress. These changes are a welcome swing of the pendulum back toward fairness to disabled workers. As much of the cigarette litigation has taught us, it’s a tricky thing to prove cause and effect, and it’s good that disabled miners will not not bear such a heavy evidentiary burden. I am glad to see the regulations following the dictates of such positive legislation. Nevertheless, I have one concern with the changes you propose, and that is the retroactivity of the change. As I understand it, claims filed after January 1, 2005 and still pending as of March 23, 2010 will be subject to the Fifteen-Year Rule. You expressly acknowledge that these changes will be applied retroactively. I wonder if you are inviting litigation on this front, and putting a positive change at risk. I noted your reading of the ACA’s requirement of retroactivity and your conclusion that “the Department is obligated to promulgate implementing regulations that have similar retroactive effect.” I’m not convinced that conclusion is correct. You support that assertion by citing to Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849, 859 (DC Cir. 2002), where the Department defended BLBA against allegations of impermissible retroactivity. The Court stated “An agency may not promulgate retroactive rules absent express congressional authority.” Id. at 859. That is a far cry from saying that an agency must promulgate retroactive rules. You seem to have interpreted a possible privilege as an obligation. The Court further held that “where a rule changes the law in a way that adversely affects a party’s pr