Professional Documents
Culture Documents
No. 13-1406
(WEVA 2013-368-D)
O R D E R
page
8,
footnote
7,
line
--
815(a)(1)
is
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1406
Argued:
Decided:
Cobra
Natural
Resources,
LLC
(Cobra),
seeks
Review
reinstating
Commission
coal
(the
miner.
In
Commission),
October
2012,
temporarily
Russell
Ratliff
him
on
the
basis
of
safety
concerns
he
had
After an
the
Commission
Asserting
appellate
doctrine,
Cobra
interlocutory
affirmed
jurisdiction
seeks
judicial
decision.
As
the
reinstatement
under
the
review
of
explained
below,
collateral
the
we
order.
order
Commissions
dismiss
the
I.
A.
In response to what was characterized as the notorious
history of serious accidents and unhealthful working conditions
in the coal mining industry, the Mine Act was enacted in 1977 to
establish
comprehensive
regulatory
2
scheme
concerning
mine
U.S.
contains
594,
provision
603
that
(1981).
The
prohibits
Act
mine
operators
from
whistleblower
discriminating
complaining
coal
miner
may
not
be
in
the
reduced
income
pending
resolution
of
the
discrimination
30
Secretary
U.S.C.
815(c)(2).
receives
Pursuant
miners
to
the
discrimination
Mine
Act,
complaint
the
and
complaint
was
not
frivolously
brought,
the
Secretary
employed
under
any
circumstance,
but
is
subject
to
events,
such
as
subsequent
reinstatement
reinstatement
should
be
reduction-in-force
See id.
issue,
tolled,
An ALJs ruling on a
including
is
that
subject
whether
to
the
discretionary
of
whether
reinstated,
the
the
terminated
Secretary
coal
must
miner
complete
is
the
complaint.
If
it
is
decided
that
violation
of
the
with
the
Commission,
which
conducts
hearing
and
See N. Fork Coal Co. v. FMSHRC, 691 F.3d 735, 744 (6th Cir.
2012).
B.
Russell Ratliff, a southern West Virginia coal miner, was
an
equipment
operator
at
Cobras
Mountaineer
Mine
in
Mingo
Promptly
thereafter,
Ratliff
filed
discrimination
Ratliffs
claim
was
not
frivolous
and
applied
to
the
Cobra requested a
the
ALJ
agreed
with
the
Secretary
that
Ratliffs
The ALJ
See Reinstatement
The ALJ
specifically
tolling
issue.
Commission
By
challenging
its
Decision),
the
February
the
filed
the
underlying
28,
Commission
ALJs
analysis
2013
of
Decision
granted
review
the
(the
but
petition
for
review,
summarily
that
the
Commission
erroneously
denied
Cobras
tolling defense.
II.
Although Rule 28(a)(4) of the Federal Rules of Appellate
Procedure requires that an opening appellate brief contain a
detailed
jurisdictional
statement,
both
parties
gave
short
matter. 5
As
result,
prior
to
oral
argument,
we
parties
once
again
summarily
urged
us
are
obliged
to
satisfy
ourselves
of
obtained
Therein,
to
accept
Nevertheless,
subject-matter
United States
v. Urutyan, 564 F.3d 679, 684 (4th Cir. 2009) (citing Bender v.
Williamsport
Area
Sch.
Dist.,
475
U.S.
534,
541
(1986)).
See
30
U.S.C.
816(a)(1).
Although
the
Act
uses
the
term
strong
presumption
is
that
judicial
review
will
be
too
appellate
independent
of
consideration
adjudicated.
the
be
cause
deferred
itself
until
to
the
require
whole
that
case
is
limiting
collateral
order
review
only
to
certain
exceptional
[1]
conclusively
determine
the
disputed
question,
[2]
(alterations
in
(internal
quotation
marks
omitted); see also Al Shimari v. CACI Intl, Inc., 679 F.3d 205
(4th
Cir.
2012)
(en
banc)
(rejecting
collateral
order
three
requirements
for
collateral
order
jurisdiction
judgment
has
been
entered.
See
Digital
Equip.
On
As
U.S.
omitted).
at
350
(emphasis
added)
(internal
quotation
marks
Mohawk Indus.,
Our distinguished
10
Light Co. v. U.S. Dept of Labor, 43 F.3d 912, 918 (4th Cir.
1995). 9
In
delineating
the
boundaries
of
the
collateral
order
As the Supreme
11
three-part test.
significantly,
the
third
prong
whether
And more
right
is
See
id.
In
assessing
collateral
order
whether
we
doctrine,
possess
we
jurisdiction
do
not
under
engage
in
the
an
Id.
jurisdictional
issue:
whether
Commission
decision
by
the
coal
operator
12
under
the
collateral
order
doctrine.
and
appropriate.
persuasive
concluded
Those
effect.
that
appellate
decisions,
The
Eleventh
jurisdiction
however,
are
of
Circuits
decision
is
limited
in
Jim
Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990),
was rendered more than two decades ago, prior to the Supreme
Courts more recent, emphatic warnings made in its Digital
Equipment, Will, and Mohawk decisions concerning the narrow
and limited scope of the collateral order doctrine.
Circuit
addressed
the
issue
more
in
somewhat
jurisdictional
inquiry
Vulcan
Constr.
Materials,
(2012)
(concluding
in
L.P.
single
convince
us
of
the
proper
v.
recently,
cursory
FMSHRC,
paragraph
but
700
that
The Seventh
resolved
the
fashion.
See
F.3d
300
297,
collateral
order
course,
or
even
11
1.
The
collateral
putatively
order
appealable
question.
This
doctrine
order
most
first
conclusively
basic
element
requires
determine
is
that
disputed
sometimes
presumed
Nonetheless,
authorizing
an
there
immediate
is
appeal
little
under
justification
the
collateral
for
order
Corp., 830 F.2d 404, 407 (1st Cir. 1987) (internal quotation
marks omitted).
open
the
possibility
of
reconsideration,
collateral
order
Commn,
(declining
514
jurisdiction
U.S.
35,
where
42
(1995)
district
court
collateral
expressly
order
planned
to
14
opinion,
maintain
that
Commission
order
awarding
(internal
quotation
marks
omitted).
such
an
assertion might have been correct more than twenty years ago
when Jim Walter Resources was rendered, it is inaccurate today,
thanks to the tolling defense at the heart of Cobras petition.
Pursuant to the Commissions 2009 ruling in its Gatlin case, a
coal operator is entitled, prior to an ALJs decision on the
merits, to seek modification of a temporary reinstatement award
on
the
basis
of
change
of
circumstances,
such
as
15
merits,
may
appropriately
order
as
an
order
of
an
intermediate
hearing
temporary
reinstatement
remains
complaint,
such
an
order
can
hardly
be
In the volatile
agency
decisions.
demonstrates,
expressly
held
Accordingly,
ruling
open
an
for
And,
on
the
as
the
temporary
Decision
reinstatement
possibility
interlocutory
Commission
of
Commission
can
be
reconsideration.
ruling
awarding
the
initial
requirement
of
the
collateral
order
doctrine. 12
12
16
2.
Second, an appealable collateral order must also resolve
an important issue completely separate from the merits of the
action.
separability
aspect.
Because
importance
is
more
distinct
discrimination claim.
from
the
merits
of
the
miners
appeal
need
not
be
identical
to
those
to
be
17
maintaining
analysis
factual
that,
although
necessarily
allegations
the
entail[s]
in
the
temporary
some
reinstatement
consideration
miner[s]
of
complaint[],
it
the
is
distinction
seems
to
be
[t]he
temporary
by
the
is]
[miner]
to
nonfrivolous,
date
not
establishe[s]
whether
there
that
is
[his
sufficient
temporary
discrimination
and
permanent
proceeding.
There
relief
is,
no
in
doubt,
coal
a
miners
different
but
must
only
produce
some
evidence
of
standard differs, to some extent, from that which the ALJ must
18
undertake
following
practical
full
standpoint,
hearing
however,
on
the
merits.
temporary
From
reinstatement
claim.
reviewing
an
Consider
application
the
for
Commissions
temporary
own
guidance:
reinstatement,
it
in
is
is
conceptual
temporary
factual
simply
no
difference,
reinstatement
and
legal
reinstatement
the
plainly
that,
regardless
considerations
process
issues
discrimination claim.
doubt
are
deeply
comprising
the
any
in
the
with
the
involved
of
enmeshed
miners
underlying
this
aspect
of
the
second
See Johnson v.
Rubber
Co.
v.
Risjord,
449
19
U.S.
368,
376
(1981)
(irreparable).
An
affect[s]
that
rights
order
may
would
also
be
Koller,
472
U.S.
424,
unreviewable
irretrievably
be
lost
if
in
it
the
430-31
(1985).
But
even
such
jurisdiction.
See
Digital
Equip.,
511
U.S.
at
872.
would
judgment
be
lost
through
requirement
sufficiently
important
rigorous
i.e.,
interest
an
application
assessment
would
be
of
of
final
whether
imperiled
by
a
our
See Mohawk,
for
judicial
hearing
of
its
challenge
13
to
the
In our view,
his
salary
and
benefits
during
the
pendency
of
interest
economic one.
economic
implicated,
therefore,
is
primarily
the
The
an
interest
is
sufficiently
important
to
demand
the
Supreme
Court
has
conducted
its
importance
analysis
21
350-54.
Nixon
v.
Fitzgerald,
Court recognized
involving
collateral
order
Presidential
jurisdiction
See id.
immunity,
and
the
identified
to
collateral
of
order
appeal,
threatened
disruption
inhibiting
able
service.
people
governmental
from
and
spoke
functions,
exercising
of
and
discretion
the
fear
in
of
public
The importance of a
immunity
question
in
Puerto
Rico
Aqueduct
&
Sewer
Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993), where
the
Court
determined
properly invoked.
that
collateral
order
jurisdiction
was
in
Abney
v.
United
States.
See
431
U.S.
651
22
Court,
was
particular
value
the
other
hand,
collateral
order
the
of
high
order,
or
Will, at 352-53. 15
Supreme
Court
jurisdiction
in
has
declined
putative
to
appeals
In each of
108.
15
23
jurisdiction.
Frankly,
coal
operators
economic
that
economic
harm
suffered
We readily recognize, of
by
coal
operator
may
The
III.
Pursuant to the foregoing, the collateral order doctrine
does not permit an interlocutory review of the proceedings
24
below.
25
respectfully
dissent
because
we
have
jurisdiction
to
this case on its merits and remand to the Commission for further
proceedings.
I.
The majority first addresses the collateral order doctrine
to find a lack of jurisdiction for appellate review.
under
settled
principles
regarding
However,
administrative
agency
2012)
(examining
the
statutes
plain
text
to
determine
the
statute
affords
us
30 U.S.C. 816.
jurisdiction
only
We have held
over
final
26
First, we consider
examine
whether
the
obligations
have
been
consequences
will
flow.
action
[is]
determined
Id.
one
by
or
from
(emphasis
which
Second,
rights
which
omitted).
or
legal
In
some
the
agency
action
definitive
statement
of
the
agencys
position; (2) does the action have direct and immediate legal
force requiring parties immediate compliance with the agencys
pronouncement; (3) do the challenges to the agencys actions
involve legal issues fit for judicial resolution; and (4) would
immediate judicial review speed enforcement and promote judicial
27
efficiency?
these
questions
are
asked
and
answered,
our
A.
The Commissions order marks the end of the decisionmaking
process
for
purposes
of
the
temporary
reinstatement
issue.
28
291,
293
(4th
Cir.
1980)
(relying
in
part
on
partys
prospect
Commissions
order
of
reconsideration
non-final
because
does
it
is
not
so
render
the
inherently
29
speculative.
record.
Further,
the
prospect
finds
no
support
in
the
And importantly,
Power, Inc. v. FERC, 493 F.3d 239, 266 (D.C. Cir. 2007); City of
Tacoma,
Wash.
v.
FERC,
331
F.3d
106,
113
(D.C.
Cir.
2003);
Sierra Club v. U.S. Nuclear Regulatory Commn, 862 F.2d 222, 225
(9th
Cir.
1988).
reconsideration
Were
would
it
defeat
otherwise,
our
the
jurisdiction
possibility
in
most
of
every
B.
The
Commissions
order
also
has
direct
and
immediate
force
Indeed,
at
and
effect
least
one
of
the
temporary
court
30
has
reinstatement
compared
the
order.
temporary
F.2d
102,
105
(D.C.
Cir.
1991);
Massachusetts
v.
U.S.
Nuclear Regulatory Commn, 924 F.2d 311, 322 (D.C. Cir. 1991);
Nev. Airlines, Inc. v. Bond, 622 F.2d 1017, 1020 & n.5 (9th Cir.
1980).
C.
Third, this appeal presents legal issues that courts can
resolve.
about
burden
the
of
proof.
The
349
F.2d
substantial
question).
170,
171
evidence
other
constitutes
common
(4th
Cir.
challenge
1965)
(stating
presented
that
familiar
See 16 Charles
there
is
little
need
for
31
concern
that
review
is
judicial
intrusion
into
the
agencys
capacity
to
manage
the
enforcement
and
D.
Finally,
immediate
review
would
speed
hasten
process.
the
review
alleged
errors
in
the
administrative
Commission
cases.
of
now
employs
in
other
temporary
reinstatement
Cobras
claims
will
be
unreviewable
absent
immediate
result,
we
will
never
review
the
Commissions
use
of
As
the
F.3d 310, 316 (4th Cir. 2008) (quoting Bowen v. Mich. Acad. of
Family Physicians, 476 U.S. 667, 670 (1986)).
32
to
seek
review
should
the
Commission
order
the
will
never
obtain
reimbursement
of
those
The
wages,
no
that
temporarily
merits
allows
an
operator
reinstated
decision.
to
miner
for
Although
the
recoup
all
wages
periods
majority
paid
before
labels
to
final
this
harm
Inc. v. Ruckelshaus, 439 F.2d 584, 592 (D.C. Cir. 1971); see
also Park Lake Res. Ltd. Liab. Co. v. U.S. Dept of Agric., 197
F.3d 448, 452 (10th Cir. 1999) (Our inquiry into harm takes
into
account
financial
consequences
flowing
from
the
agency action.).
An
operators
harm
stems
not
just
from
the
wages
paid.
to
cope
workplace.
In
with
the
erroneous
present
decisions
case,
for
that
could
instance,
disrupt
the
ALJ
the
and
engaged
in
disruptive
33
acts
such
as
fighting
and
yelling profanity.
206
F.2d
274,
275-76
(4th
Cir.
1953)
(describing
the
an
language).
employee
Despite
who
this
has
use[d]
harm,
profane
mine
and
operator
indecent
now
has
no
See,
A future
miner could very well suffer irreparable harm from not receiving
needed
wages
decision.
in
the
Moreover,
interim
as
the
period
Secretary
before
has
final
warned,
merits
that
harm
See S.
This disruption stems not just from the potential that the
employee will repeat his conduct in the future, but also from
the actual act of reinstating him in the first instance.
See
Longview Furniture, 206 F.2d at 276 (The employment of persons
who have been guilty of such conduct toward their fellow
employees has a disruptive effect on the employers business as
a result of the feelings and antagonisms thereby engendered.).
34
financial
unemployment
position
or
to
reduced
suffer
income
even
pending
short
period
resolution
of
of
the
discrimination complaint.).
E.
The
Seventh
Circuits
decision
in
Finer
Foods,
Inc.
v.
the
jurisdictional
completed.
issue
using
the
same
inquiry
just
(c)
against
investigation
violation.
and
private
proceedings,
party,
(e)
for
(d)
an
pending
alleged
an
agency
statutory
review the order because the agency had not completed all its
proceedings related to the violation underlying the immediate
relief.
Id. at 1139.
argument
frivolous
said
it
was
surprised
and
Id. at 1138-39.
doctrine.
Because
the
Commissions
order
is
reviewable
on
II.
The collateral order doctrine describes that small class
[of decisions] which finally determine claims of right separable
from,
and
collateral
to,
rights
asserted
in
the
action,
too
under
conclusively
important
1291,
determine
issue
district
To qualify as a collateral
court
the
disputed
completely
separate
decision
question,
from
the
[2]
must
[1]
resolve
merits
of
an
the
233 (4th Cir. 2012) (quoting Will v. Hallock, 546 U.S. 345, 349
36
(2006)).
circuit
courts
of
appeal
to
have
considered
the
issue
v. FMSHRC, 700 F.3d 297, 300 (7th Cir. 2012); Jim Walter Res.,
Inc., 920 F.2d at 744-45.
A.
First,
the issue.
the
Commissions
order
here
conclusively
resolved
complete
before it.
agency
disposition
of
the
discrete
controversy
37
Cir.
1979);
see
also
15A
Charles
Alan
Wright,
et
al.,
Federal Practice and Procedure 3911 (2d ed. 2013 supp.) (The
bare
fact
that
the
court
has
power
to
change
its
ruling,
consideration is contemplated.).
A
possibility
of
reconsideration
presents
different
In
revisit
the
matter
later,
regardless
of
whether
See,
In
to
this
unequivocal
issue
terms
in
and
Ratliffs
ordered
case.
Cobra
The
to
ALJ
provide
spoke
in
immediate
reinstatement to Ratliff.
B.
The
merits.
Commissions
order
also
stands
separate
from
the
Beneficial
Industrial
Loan
Corp.,
337
U.S.
541,
546
(1949),
Commissions
Id.
temporary
reinstatement
decision
has
no
pendency
adjudicating
decision.
of
this
temporary
appeal
because
reinstatement
will
nothing
affect
decided
the
in
merits
39
1319 (7th Cir. 1986) (noting that irreparable harm would result
if party did not receive immediate review of fee award, as fees
could disappear into insolvent hands).
vulnerability
reinstatement
Director,
order
Office
on
of
occurring
the
Workers
before
an
merits.
See,
Comp.
Programs,
eventual
e.g.,
932
final
Edwards
F.2d
v.
1325,
relief
for
financial
vulnerable
worker
called
for
majority
believes
the
Commissions
order
is
not
is
separate
from
the
merits
of
the
underlying
action
for
issue.).
Double
jeopardy
and
qualified
immunity
Likewise,
Court
explained
that
he
should
have
invoked
the
acts
for
which
liability.
If
consideration
of
the
the
any
Congressman
Supreme
of
the
Court
facts
faced
potential
wished
going
to
criminal
to
avoid
any
the
underlying
C.
Finally,
interests.
this
case
involves
unreviewable
and
important
recognized as important.
A
mine
operator
appeals
temporary
reinstatement
order
reinstating
problematic
to
vindicate
his
right
to
order
his
immediate
or
facing
legally
worker,
much-needed
contemporary
reinstatement
after
an
employer
Mine
Act
temporary
reinstatement
appeal
raises
the
employer
to
define
its
workforce,
which
may
counterbalance reinstatement.
that
[w]here
irretrievable
statutory
loss
can
hardly
be
rights
trivial.
are
concerned,
Digital
Equip.
42
In
contrast,
the
interests
that
by
resolution
of
the
normally
counsel
for
temporary
reinstatement
order
In so much
comparing
doctrine
them
cases.
to
catalog
Cataloguing
of
cases
previous
collateral
presents
an
order
inadequate
Indeed, several
156, 172 (1974) (order that 90% of class action notice costs be
9
43
imposed on one party); Brown Shoe Co. v. United States, 370 U.S.
294,
309
(1962)
(order
contemplating
future
divestiture
in
privilege-related
were unimportant.
orders
because
those
orders
10
does
not
unimportance[.]).
rest
Mohawk
on
the
privilege
Industries
and
orders
the
relative
attorney-client
45
D.
In view of the foregoing, all the factors in a collateral
order doctrine analysis support jurisdiction in the case at bar.
I
see
no
basis
that
merits
circuit
split
on
this
issue,
See Natl
Treasury Emps. Union v. FLRB, 737 F.3d 273, 280 (4th Cir. 2013)
([T]here would be costs in this area to holding differently and
creating a circuit split.).
The majority panel has previously recognized the dissonance
caused
by
creating
such
circuit
splits.
See,
e.g.,
United
States v. Hashime, 722 F.3d 572, 573 (4th Cir. 2013) (Gregory,
J., concurring in denial of hearing en banc) (criticizing prior
precedent for creating an oft-dreaded circuit split); Wachovia
Bank v. Schmidt, 388 F.3d 414, 439 (4th Cir. 2004) (King, J.,
dissenting) (stating that the creation of a circuit split on a
jurisdictional
issue
was
unwarranted),
revd,
546
U.S.
303
(2006).
III.
Having found jurisdiction, I would remand this matter to
the
Commission,
whose
decision
below
deviated
from
earlier
burden
of
proof,
in
the
midst
of
adjudicatory
proceedings,
A.
The Commission appears to have applied a new standard of
proof
to
Cobras
economic
tolling
defense.
In
earlier
of
certain
may
obligation.
toll
events,
an
such
as
operators
layoff
for
[temporary]
economic
reinstatement
ALJ
continued
Id. at 1055.
relied
to
on
the
rely
Nevertheless,
the
on
preponderance
that
standard
Commissions
it
is
frivolous
to
Commission
may
140
F.2d
51,
55
say
change
(4th
The
the
announced
parties
Commission.
a
new
and
Cir.
the
subsequent
economic
(J.A. 238-39.)
its
before
decision
standard.
benchmark
and
apply
new
([A]n
administrative
An
agency
last
decided
the
issue
and
bona
fide
reasoned
judgment,
the
agency
must
explain
change
in
from
prior
policy
sub
silentio
or
simply
disregard
must show that there are good reasons for the new policy.
See
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)
(internal
provide
citation
omitted).
fuller
explanation
An
if
agency
its
new
also
might
policy
need
rests
to
upon
Id. at 515-16.
710 n.6 (9th Cir. 2012); see also Mfrs. Ry. Co. v. Surface
Transp. Bd., 676 F.3d 1094, 1096 (D.C. Cir. 2012) (explaining an
agency must persuasively distinguish precedents).
The
Commission
responsibilities
Commissions
did
while
decision
not
acknowledge
shifting
course
references
its
or
in
this
previous
uphold
these
case.
The
preponderance
should
explain
why
that
(J.A. 240.)
objectivity
The Commission at
warrants
higher
See,
e.g., Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 50 (1983) ([C]ourts may not accept appellate
counsels post hoc rationalizations for agency action).
defense
of
the
Commissions
decision,
for
instance,
In
the
basis for the Commissions new test, then the Commission should
49
The
stages,
so
we
cannot
uphold
it
on
that
rationale.
Natl
Elec.
Mfrs.
Assn
v.
U.S.
Dept
of
exercised
reasoned
judgment
in
changing
course,
would
B.
Remand
for
further
explanation
does
not
cure
the
Once
This remand
50
agency
is
not
precluded
from
announcing
new
231, 236 (4th Cir. 1993) (internal marks omitted) (quoting NLRB
v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 294
(1974)).
Thus,
an
agency
can
retroactively
apply
rule
SEC v.
Chenery Corp., 332 U.S. 194, 203 (1937) (That such action might
have
retroactive
effect
was
not
necessarily
fatal
to
its
validity.).
Notwithstanding
tread
carefully
adjudicatory
its
when
process
adjudicatory
changing
in
the
power,
the
midst
an
agency
standards
of
that
should
defining
very
an
process.
Energy
Regulatory
Commn,
12
315
F.3d
316,
323
(D.C.
Cir.
If,
after
further
considering
its
approach,
the
Commission decides to retain its previous Gatlin standard, then
no remand to the ALJ would be necessary. In that circumstance,
the Commission would decide the issue as it was originally
submitted.
51
2003); P.R. Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 607 (1st
Cir.
1994);
Commerce
Aero
Commn,
Mayflower
699
F.2d
Transit
938,
Co.,
942
Inc.
(7th
v.
Cir.
Interstate
1983);
Port
Terminal R.R. Assn v. United States, 551 F.2d 1336, 1345 (5th
Cir. 1977); Hill v. Fed. Power Commn, 335 F.2d 355, 356 (5th
Cir. 1964).
Two cases provide clear illustrations of the problems that
may occur -- and the denial of due process that may result -when the agency changes the burden of proof in the middle of the
proceeding.
First, in Woodward v. DOJ, 598 F.3d 1311 (Fed. Cir. 2010),
the Board of Justice Assistance adopted a new burden of proof in
the midst of the petitioners appeal seeking death benefits.
The shift changed the burden of proof from a lenient standard
resolving any reasonable doubt in favor of the claimant to the
more
stringent
standard
requiring
that
claimant
prove
all
Id. at
Hatch
v.
FERC,
petitioner
contended
Commission
improperly
654
that
F.2d
825
the
Federal
adopted,
52
(D.C.
after
Cir.
1981),
Energy
the
Id.
close
the
Regulatory
of
the
Id. at 826.
Just as in
notice
of
change
in
the
burden
of
proof
and
an
Id. at
hearing;
significance
Id.
of
or
(2)
evidence
the
burden
only
changed
the
that
the
legal
parties
already
submitted.
Finding
that
Hatchs
situation
involved
this
kind
of
Id. at 837.
changed
the
quantum
of
proof
--
from
preponderance
to
focus
more
upon
the
of
the
introduced
evidence
concerning
53
(1)
the
economic
Cobra, for
companys
actual layoffs and (2) why those layoffs would have included
Ratliff.
will need to introduce additional evidence concerning the nondiscriminatory intent of a layoff, even apart from the economic
reasons behind it.
(2012)
(explaining
that
party
should
receive
fair
an
agency
to
ignore
serious
reliance
interests
that
the
Commission
developed
its
new
standard
without
IV.
For the aforementioned reasons, I respectfully dissent.
55