[00:00:02] Speaker 00: Case number 17-5074, Archipel Inc. [00:00:06] Speaker 00: Appellant versus R. Alexander Acosta and his official capacity as Secretary of Labor at L. Mr. Solomons for the Appellant, Mr. Aguilar for the Appellees. [00:01:26] Speaker 03: Good morning, and may it please the Court. [00:01:30] Speaker 03: This case, in our view, is a case that involves the plain language of several statutes. [00:01:38] Speaker 03: The Court in National Mining Association read that plain language and I think applied it correctly. [00:01:45] Speaker 03: The Court below did not read that plain language correctly and did not apply it. [00:01:49] Speaker 02: There was a rulemaking in National Mining. [00:01:51] Speaker 02: There was no rulemaking here. [00:01:53] Speaker 03: That's correct, and that is the only distinction. [00:01:55] Speaker 02: What's huge? [00:01:57] Speaker 03: Well, I, I, Your Honor? [00:01:59] Speaker 02: You have a rule-making there. [00:02:00] Speaker 02: I mean, you gotta understand that the starting point, conceptually, at least for someone like me, who's seen a million of these cases, is Standard Oil. [00:02:12] Speaker 02: And the notion there that pervades a ton of administrative law in the circuit is that [00:02:21] Speaker 02: When an agency is merely talking about potential enforcement actions, the courts are not involved. [00:02:29] Speaker 02: And this guidance was nothing but a guidance. [00:02:32] Speaker 02: It wasn't a rule. [00:02:33] Speaker 02: It was not a rule. [00:02:34] Speaker 02: There was no rulemaking. [00:02:37] Speaker 02: And national mining involved a rulemaking. [00:02:40] Speaker 02: And the question was, who gets review over the rulemaking once it's done? [00:02:45] Speaker 02: That is not this case. [00:02:47] Speaker 03: Well, Your Honor. [00:02:47] Speaker 02: The guidance order is not a rule. [00:02:50] Speaker 03: It's not guidance. [00:02:53] Speaker 03: What the Department of Labor's bulletin does, it's like, what it does is it directs its staff to issue what is, in effect, a complaint. [00:03:02] Speaker 02: So let me just tell you where I'm coming from so you can understand at least for one judge. [00:03:06] Speaker 02: This goes on all the time. [00:03:07] Speaker 02: There are millions of these things in these agencies where the commission or the director or the whomever says to enforcement folks, you know, let's do it this way, let's do it that way. [00:03:20] Speaker 02: And the challenge comes if and when [00:03:22] Speaker 02: they take enforcement action against parties like you, then you can claim wrong party. [00:03:29] Speaker 02: And that's your exhaustion. [00:03:31] Speaker 02: There's no rule. [00:03:32] Speaker 02: They're not bound. [00:03:32] Speaker 02: They can change that direction any time they want. [00:03:36] Speaker 02: They are not bound by that. [00:03:37] Speaker 02: That's what a rule is. [00:03:39] Speaker 02: It binds the agency. [00:03:40] Speaker 02: It gives them no discretion. [00:03:42] Speaker 02: There was nothing here that said that's what they meant to do. [00:03:46] Speaker 03: Well, Your Honor, that's not what the Administrative Procedure Act says. [00:03:50] Speaker 03: The Administrative Procedure Act defines a rule. [00:03:54] Speaker 03: And the way it defines a rule fully encompasses this bulletin. [00:03:59] Speaker 03: The bulletin is not something which is a guidance document. [00:04:02] Speaker 03: It is not something, I was, as a matter of fact, looking at it by contrast. [00:04:06] Speaker 03: I was looking at a case, I didn't cite it because it came out after briefing, but it kind of collects authority. [00:04:11] Speaker 03: Sierra Club versus EPA, 873F3rd. [00:04:14] Speaker 03: The thing is, this is not a guidance document. [00:04:18] Speaker 03: This document instructs staff to name these parties, and by naming the parties, that begins the process of adjudication of those claims. [00:04:28] Speaker 02: It is a big, big step, which affects 50... Just like Standard Oil was a big, big step, and the petitioning party there was furious that they were going to be made subject to an enforcement action, and they came charging into court, and Supreme Court said, go away. [00:04:45] Speaker 02: This is merely the beginning of an enforcement action. [00:04:48] Speaker 02: You have no business being in court. [00:04:51] Speaker 02: Nothing's happened. [00:04:52] Speaker 02: And the fact that there are litigation costs that may be incurred is not enough to give you a presence in court at this moment. [00:05:00] Speaker 03: Your Honor, a lot has happened. [00:05:02] Speaker 03: We have been notified. [00:05:04] Speaker 03: We have, in effect, a complaint filed against us. [00:05:07] Speaker 02: As did Standard Oil. [00:05:09] Speaker 03: In 250 cases. [00:05:11] Speaker 02: The thing you're missing is it goes on all the time. [00:05:15] Speaker 02: The fact that there is a complaint issue or a charge or whatever, except in very rare circumstances where there may be a rule, there is no rule here. [00:05:26] Speaker 03: Well, I think what you have is an attempt by the Department of Labor to take something which clearly is a rule in their mind and call it something else, and thereby hope that they're going to be able to get out of having to face up to them. [00:05:40] Speaker 02: They're not going to get out. [00:05:43] Speaker 02: follow the procedures, the exhaustion procedures, the challenge that you're now claiming can be properly raised. [00:05:50] Speaker 02: And in fact, I think there is already one case where you did raise it. [00:05:55] Speaker 03: No, we didn't raise it. [00:05:56] Speaker 03: We haven't been able to raise it. [00:05:58] Speaker 03: We've got no discovery. [00:05:59] Speaker 03: We've never been given any discovery by the department. [00:06:02] Speaker 03: No, wait, wait, wait. [00:06:04] Speaker 02: I'm going to talk about whether you're able to raise it in the form you would prefer to do it. [00:06:09] Speaker 02: You are absolutely allowed to raise this in the event, and I still think there is something in the record to indicate that this has come up. [00:06:16] Speaker 02: in one of the proceedings, where if they file a charge against the company entity you think is the wrong one, you can say, no, you cannot adjudicate this against us. [00:06:28] Speaker 02: That is a totally legitimate defense. [00:06:30] Speaker 02: You exhaust your procedures, and then you come to the Court of Appeals in the event that you lose. [00:06:34] Speaker 02: That's the way this happens. [00:06:36] Speaker 03: But, Your Honor, I don't think this follows the plain language of the statutes that are relevant here. [00:06:42] Speaker 02: And it's not the same statute... I'm talking about the APA. [00:06:44] Speaker 03: I'm talking about the APA and the Longshore Act and the Black Longshore Act. [00:06:48] Speaker 03: And the meaning of rule. [00:06:49] Speaker 03: And the meaning of rule. [00:06:50] Speaker 02: There is so much case law on the meaning of what a rule is. [00:06:53] Speaker 02: I don't know what to tell you. [00:06:56] Speaker 02: I mean, it's just there are tons of law that's totally inconsistent with what you're saying. [00:07:01] Speaker 02: Mining is irrelevant because there was a rulemaking there. [00:07:05] Speaker 02: There was no question there was a rulemaking there. [00:07:07] Speaker 02: The agency meant to bind itself. [00:07:09] Speaker 02: It had no discretion. [00:07:11] Speaker 02: Under Bennett v. Spear, the test was met. [00:07:14] Speaker 02: The rights and legal obligations were all fixed and changed. [00:07:17] Speaker 02: That's not what happened here. [00:07:19] Speaker 03: Yes, it is. [00:07:20] Speaker 03: The agency bound itself. [00:07:22] Speaker 03: The agency can't change its mind. [00:07:23] Speaker 03: It absolutely can't change its mind. [00:07:25] Speaker 03: We can't ignore them. [00:07:27] Speaker 02: They can change their mind, just like in Standard Oil. [00:07:31] Speaker 03: Right, but this is the Longshore Act, not whatever it was that Standard Oil came under. [00:07:36] Speaker 02: Well, you need to read Standard Oil because it is seminally important. [00:07:39] Speaker 02: It is a Supreme Court statement about how we think about whether or not an action is ready to be heard by a court. [00:07:47] Speaker 02: It is seminally important. [00:07:50] Speaker 02: It pervades all of these areas. [00:07:52] Speaker 02: And this is not ready to be heard by a court. [00:07:55] Speaker 03: Well, I think that under the definition of rule, in 5 U.S.C. [00:08:00] Speaker 03: 551.4, it says, the rule means, I don't know if you know better than I do, it encompasses this action by the department. [00:08:12] Speaker 03: The department couldn't do this as a rule, so what they did is they kind of cheated. [00:08:16] Speaker 03: They did it as a bulletin. [00:08:18] Speaker 03: And they couldn't do it as a rule because it is extremely retroactive. [00:08:22] Speaker 03: It has a significant retroactive effect. [00:08:24] Speaker 03: And even in NMA, that was one of the significant reasons why district court review rather than ALJ review was considered to be appropriate. [00:08:34] Speaker 01: Can I ask you a question? [00:08:35] Speaker 01: So if you're in one of these and you get one of these notices as a result of the bulletin from the district director, and you go before the ALJ, and let's say you ask for a discovery and the ALJ says no. [00:08:47] Speaker 01: But you argue, it's not us. [00:08:49] Speaker 01: It's not our liability. [00:08:50] Speaker 01: It's impermissibly retroactive. [00:08:53] Speaker 01: It's contrary to the statute. [00:08:54] Speaker 01: It's contrary to your past practices and precedent. [00:08:58] Speaker 01: You should be looking at patriot. [00:09:00] Speaker 01: You make every argument you have, and you lose. [00:09:04] Speaker 01: And then it goes up before commission. [00:09:05] Speaker 01: You lose again, and you come to court. [00:09:09] Speaker 01: Would you be able to make all those arguments in court? [00:09:11] Speaker 01: We should have been given discovery the imposition of liability was wrong as a matter of fact and a matter of law. [00:09:19] Speaker 03: Well, you know, the thing is that I don't know what arguments we can make since the department is taking the position that we're not going to get any discovery in all this stuff. [00:09:27] Speaker 01: I'm going to ask my question again. [00:09:28] Speaker 01: Could you come to court from here on review and say the agency erred when it didn't give us discovery, it erred [00:09:38] Speaker 01: As a matter of law and imposing liability, it erred as a matter of law in not pursuing patriot and any factual or quasi-factual legal arguments you have. [00:09:47] Speaker 01: Is there any reason you could not present those to a court of appeals? [00:09:52] Speaker 03: I think that we could present those to the Court of Appeals. [00:09:55] Speaker 03: But I don't think that under the statutory scheme that we have that we are required to do that, that there is an other option which is a better one. [00:10:13] Speaker 01: Well, it's not that we prefer. [00:10:15] Speaker 03: ALJs don't disagree with the agencies on matters of policy. [00:10:20] Speaker 03: They never do. [00:10:21] Speaker 03: And so that's kind of a waste of time. [00:10:24] Speaker 03: The Benefits Review Board is basically in the same boat. [00:10:27] Speaker 03: And then, you know, you go up to, we have eight, we have 50 companies, eight courts of appeals. [00:10:33] Speaker 03: These cases that go all the way take seven to eight years or more to do. [00:10:37] Speaker 03: And so what we have here is a statutory scheme, it seems to me, that gives us an opportunity to get relief without having to have this fight with the agency, which is going to go on forever. [00:10:49] Speaker 03: And also, you know, even in NMA, I think it was recognized that whether you're going to get a fair adjudication is not an insignificant factor. [00:10:59] Speaker 03: in the consideration of where the case is appropriately heard in the first instance. [00:11:04] Speaker 03: And the thing is that from everything that everybody's seen, and one of the companies has tried to go through this process and is getting absolutely nowhere, can't get discovery, can't get a witness. [00:11:15] Speaker 03: And the thing is that we're not going to get an adjudication from an ALJ. [00:11:20] Speaker 03: The thing is that what this comes down to, I think, is in all of the cases [00:11:25] Speaker 03: The principle that is emphasized most is the intent of Congress is reflected in the language of the statute and it's reflected in the process. [00:11:36] Speaker 03: And the intent of Congress cannot be this, it seems to me. [00:11:40] Speaker 03: I mean, you can certainly make the argument that we could do it. [00:11:45] Speaker 03: I could do it. [00:11:46] Speaker 03: You can do these things someplace else, maybe not as efficiently, maybe inefficiently. [00:11:52] Speaker 03: But the fact of the matter is that I think under the APA, [00:11:56] Speaker 03: And under the Longshore Act, I mean, 33 USC 921E, which I recommend to you, talks about how you, that the limitation on, well, the exclusive remedy that is in the Longshore Act applies here. [00:12:16] Speaker 03: applies only to compensation orders. [00:12:18] Speaker 03: We don't have a compensation order here. [00:12:20] Speaker 03: What we got is a bulletin, which is a rule, which is producing all of the effects that rules produce. [00:12:26] Speaker 03: We have to hire counsel. [00:12:27] Speaker 03: We have to do all of those things that rules require you to do. [00:12:31] Speaker 03: But it's not [00:12:33] Speaker 03: a compensation order. [00:12:34] Speaker 03: And so that limitation, that strict limitation is very carefully aligned, I think, with the language of the APA, which clearly distinguishes between orders and rules and Dundalka regulations. [00:12:47] Speaker 03: It doesn't say regulations in the APA. [00:12:51] Speaker 01: Thank you. [00:12:51] Speaker 01: I'm sorry, we'll give you a couple of minutes on rebuttal. [00:13:12] Speaker 04: May it please the Court, Daniel Aguilar, for the Secretary of Labor and the Department of Labor? [00:13:16] Speaker 04: The District Court correctly concluded that the Black-Long Act's statutory review scheme vests exclusive judicial review in the regional courts of appeals. [00:13:25] Speaker 04: ArchCole can raise all of its legal claims in the administrative proceedings, and indeed it has. [00:13:32] Speaker 04: And our motion for judicial notice of the documents that have been filed in ongoing agency proceedings [00:13:38] Speaker 04: Starting at page 46 through page 48, ARCH essentially lists all of its claims. [00:13:45] Speaker 04: This is a filing before an administrative law judge arguing for a summary decision of the responsible operator issue. [00:13:52] Speaker 04: This is an appending case. [00:13:53] Speaker 04: This is an appending case. [00:13:54] Speaker 04: That's what I was talking about. [00:13:55] Speaker 04: Yes, exactly, Your Honor. [00:13:56] Speaker 04: That's why I was giving you the exact citations for it. [00:13:59] Speaker 04: Here Arch raises each of the claims that are raised in his complaint that this is impermissibly retroactive, that it conflicts with other courts of the Black Lung Act, that it should not be liable, and that Patriots assets should be liquefied first. [00:14:11] Speaker 04: it is a claim that ARCH should not be held liable. [00:14:14] Speaker 04: That is, at the core of what the Black Foreign Act administrative proceedings are supposed to determine, who should potentially, who should pay for benefits and whether or not the claimant is entitled to benefits. [00:14:24] Speaker 01: So in such a proceeding, they raise other arguments. [00:14:28] Speaker 01: Does the ALJ, the board, or even the court on review have the capacity to say, not just that they shouldn't be liable in that individual case, but that, hypothetically, [00:14:41] Speaker 01: this effort to make them responsible, show up and be responsible in all these cases, imposes a rule retroactive or a position, enforcement position retroactively that is contrary to law for whatever reason. [00:14:57] Speaker 01: Could there be such an across the board ruling in one of these proceedings or would they just have to get that same legal invalidation of their liability in every single case, one at a time? [00:15:06] Speaker 04: Sure, so the benefits review board can and does is to precedential decisions that would be binding across all the ALJ decisions. [00:15:13] Speaker 04: Those can be appealed to the regional courts of appeals, so you could get to just review at that level as well. [00:15:18] Speaker 01: Could the board essentially invalidate the bulletin and say that there was a wrongful, for whatever reason, just hypothetically, a wrongful imposition of retroactive liability? [00:15:27] Speaker 04: Sure, the board could say that, well, the department is relying on, you know, 725.594A4 to explain why ARCH is liable. [00:15:36] Speaker 04: That's an incorrect reading of the regulation for whatever reason. [00:15:39] Speaker 04: But that's, again, an issue for the merits. [00:15:41] Speaker 04: The benefits reward certainly can reach that determination. [00:15:44] Speaker 04: It has stayed in over review over all legal issues, as do the administrative law judges, as do the courts of appeal. [00:15:49] Speaker 04: And that just goes to show that ARCH can have meaningful review [00:15:52] Speaker 04: of its claims on the merits through this exclusive review scheme. [00:15:56] Speaker 04: That's the first of the three factors that the Supreme Court laid out in Thunder Basin and reiterated in Elgin and this court applied in Jarkese versus SEC. [00:16:05] Speaker 04: The other two factors are Arch's claims wholly collateral to these administrative proceedings [00:16:10] Speaker 04: And can the agency bring its expertise to bear on this? [00:16:13] Speaker 04: So as I explained, Arch's claims aren't wholly collateral. [00:16:17] Speaker 04: It's a claim that we should not be liable. [00:16:19] Speaker 04: All the bulletin does is direct district directors to send Arch a notice of claim that says, Arch, you may be potentially liable to pay for benefits in these cases. [00:16:27] Speaker 04: You're now a party to the proceedings. [00:16:29] Speaker 04: Let's begin. [00:16:30] Speaker 04: And that's at the core of these proceedings. [00:16:32] Speaker 04: The third is agency expertise. [00:16:34] Speaker 04: As Judge Millett's question goes to show, the agency can bring its expertise to the ground. [00:16:38] Speaker 04: It has expertise with respect to the Black Belong Act statutes and the Department of Labor's regulations. [00:16:43] Speaker 04: And as a threshold matter, it may be determined in any of these cases that, well, in fact, ARCH isn't liable for a variety of reasons. [00:16:50] Speaker 04: The claimant is, in fact, not entitled to benefits. [00:16:53] Speaker 04: Or the claimant actually didn't work for ARCH for a year or more. [00:16:56] Speaker 04: Or the claimant actually worked for [00:16:58] Speaker 04: another operator after they worked for Archer's subsidiaries, some other factor. [00:17:01] Speaker 02: The interesting question here, which they're not really posing in these terms, is whether the bulletin is something that should have been adopted pursuant to rulemaking. [00:17:14] Speaker 02: That's really the interesting question, because if it is a rule, it seems to me that ends the analysis. [00:17:19] Speaker 02: It's a rule that just gets enforced in the enforcement proceeding. [00:17:24] Speaker 02: That's why I was curious to me that they raised the question the way they did. [00:17:27] Speaker 02: In other words, [00:17:27] Speaker 02: You just said the ALJs and the commission apply the rules that are in play. [00:17:34] Speaker 02: That is, the agency said, here are the rules that govern these proceedings. [00:17:38] Speaker 02: They don't go to the district court. [00:17:39] Speaker 02: They get played out, and then they go to the regional courts of appeals. [00:17:43] Speaker 02: The different question is whether they really meant to argue that. [00:17:48] Speaker 02: They tried to adopt a rule without following rulemaking, and that's impermissible. [00:17:52] Speaker 02: What's your answer to that? [00:17:53] Speaker 02: That's a different question. [00:17:54] Speaker 02: I think their claim that it is a rule, and therefore it should go to the district court, at least for me, makes no sense, because that's not what mining says. [00:18:04] Speaker 02: Because you all enforce rules all the time. [00:18:07] Speaker 02: So that's really, in my view, that's not an interesting claim. [00:18:11] Speaker 02: The interesting claim, which is maybe what they're trying to say, is you can't adopt this without [00:18:18] Speaker 02: going to notice and comment rulemaking. [00:18:21] Speaker 04: I agree, it's a different question. [00:18:22] Speaker 04: I think the case that's closest on point to that and answers it in our favor is CSX Transportation versus the Surface Transportation Board. [00:18:30] Speaker 04: We cite that at pages 29 and 31 of our brief. [00:18:33] Speaker 04: And there it was a challenge to something that the Surface Transportation Board had done in an ongoing proceeding. [00:18:39] Speaker 04: It had issued an interlocutory order. [00:18:41] Speaker 04: and there the petitioners came to this court and said that's a legislative rule that was promulgated without notice and comment that's completely improper we want to challenge it and what this court said is no no that's not a final order you don't get to come to court and challenge that because that's an interlocutory order in the middle of these administrative proceedings yes it may have some substantive effect on how these adjudications play out but it would quote wreak havoc [00:19:05] Speaker 04: on this system for administrative education. [00:19:09] Speaker 04: Yes, your honor. [00:19:10] Speaker 04: I was hoping you might ring the bell, but I didn't want to presume. [00:19:13] Speaker 02: I know you were saying is that could be a claim at the end of the enforcement proceeding. [00:19:17] Speaker 02: If it comes to the Court of Appeals and the Court of Appeals would say, you know, they're right. [00:19:21] Speaker 02: This really was a rule. [00:19:23] Speaker 02: and it wasn't properly promulgated or overturning. [00:19:26] Speaker 04: And they can receive meaningful judicial review of that in the course of appeals. [00:19:29] Speaker 04: And it aligns well with the Supreme Court's decision in FTC versus Standard Oil, which, as I view it, is on all fours with this case. [00:19:35] Speaker 04: It's about an administrative complaint that an agency files that then begins administrative proceedings and the Supreme Court held that is, quote, different in kind from anything else that could be considered a final agency action that's reviewable under the APA. [00:19:47] Speaker 01: What about their argument that they're being denied the discovery they need? [00:19:53] Speaker 01: For example, they want to probe what happened to Patriot Kohl's pool of money and why they're not being held responsible. [00:20:03] Speaker 01: I think they say they want accounting. [00:20:05] Speaker 01: And other discovery has been denied. [00:20:07] Speaker 01: What basis is there for denying that discovery if your position is this should all be litigated in the first instance for the administrative agency? [00:20:16] Speaker 04: So just a couple of things first in answering your question. [00:20:20] Speaker 04: First is that although they allege that there ought to be an equitable accounting, noticeably they don't cite any statutes or regulations for that claim. [00:20:27] Speaker 04: The second thing is, as I understand it, they haven't sought discovery in some cases. [00:20:31] Speaker 04: I don't want to say conclusively across the board, but at least in a lot of cases before the district directors or in front of the administrative law judges. [00:20:38] Speaker 04: As I understand it, in some of the cases that are before the administrative law judges, ARCH hasn't even appeared before those hearings. [00:20:45] Speaker 04: But the third thing is, is if they have been wrongfully denied any discovery about those issues, that's something that the ALJ can say, wait a minute, the district director didn't do discovery on this. [00:20:56] Speaker 04: That's an extraordinary circumstance. [00:20:57] Speaker 04: They should receive discovery. [00:20:59] Speaker 04: If for some reason an administrative law judge or the Beneficiary Review Board doesn't agree with them on that point, a court of appeals could certainly say Arch has a- Well, I want to back up more structurally and go, can they before the district director? [00:21:11] Speaker 01: or if not they're the ALJ, can they get discovery of something like [00:21:17] Speaker 01: Hey, what about Patriot Coal? [00:21:19] Speaker 01: We need to see what happened to their money. [00:21:22] Speaker 01: Or is that not going to be allowed? [00:21:23] Speaker 01: Because the district director is going to say, no, I got a bullet in here. [00:21:26] Speaker 01: It says it's you. [00:21:27] Speaker 01: The LJ is going to say it's you. [00:21:29] Speaker 01: I'm not going to look into the finances of a bankrupt company over there. [00:21:33] Speaker 01: Is that something they can get discovery on? [00:21:35] Speaker 04: As I understand it, they can get discovery on that if it's the sort of claim where the agency can provide documents on those sort of things. [00:21:44] Speaker 04: As I understand it, it is possible for discovery to happen at the district director. [00:21:47] Speaker 01: Or can documents be sought from third parties if they needed to get information from Patriot? [00:21:51] Speaker 01: That I'm not sure about, Your Honor. [00:21:53] Speaker 01: Okay. [00:21:53] Speaker 01: But it would be impermissible that if they sought this discovery before a district director or if it didn't work there before an ALJ to deny them discovery into other potentially liable [00:22:05] Speaker 01: Companies, companies that they say, you're only looking to me because you say you can't, that well has run dry. [00:22:11] Speaker 01: Patriot's well has run dry. [00:22:12] Speaker 01: That's the only reason you're looking at us. [00:22:14] Speaker 01: And you're wrong, that well isn't dry. [00:22:16] Speaker 04: I'm not sure about the impermissible portion of it because I'm not sure about what harmless error rules specifically apply in the proceedings when discovery has been denied before a district director. [00:22:25] Speaker 01: Harmless error applies when there's been a mistake. [00:22:27] Speaker 01: You don't have harmless error means there's been an error. [00:22:29] Speaker 01: So I'm asking you the upfront question of whether it is an error to deny discovery into an argument that says company X. What are you doing bypassing their last employer and coming back to me, the last employer had a pool of money, that's where you need to go. [00:22:46] Speaker 04: I'm sorry, Your Honor, I'm not sure about that. [00:22:48] Speaker 04: I don't know the standards of discovery before the district directors. [00:22:51] Speaker 04: I know that discovery is possible, but I'm not sure under what circumstances or the burden of proof that the person seeking discovery has to show for that. [00:22:57] Speaker 01: That's kind of important, right? [00:22:58] Speaker 01: That seems to be central to their... I mean, they have a legal argument about retroactivity, but they have this other argument going, what are you looking at us for? [00:23:05] Speaker 01: And we want an accounting, and if this system doesn't allow [00:23:10] Speaker 01: structurally doesn't allow that claim to be addressed, wouldn't that be problematic? [00:23:14] Speaker 04: No, I don't think so. [00:23:15] Speaker 04: If I can explain why, even assuming that the district court, sorry, the district directors deny discovery across the board, the OJs did as well, and as did the Benefits Review Board, that's still a claim that can be heard in the course of appeals. [00:23:27] Speaker 04: And under Thunder Basin, the question is, can you receive meaningful judicial review of your claims? [00:23:31] Speaker 01: Again, what you seem to be saying is we could fix that error here. [00:23:35] Speaker 01: And what I'm asking is maybe you would come to us and argue that it's not an error. [00:23:39] Speaker 01: The system doesn't allow that type of probing of third parties. [00:23:44] Speaker 02: And that might be the case. [00:23:46] Speaker 02: Aren't you saying that in the disposition of this case, if we said it does, that's the end of the question? [00:23:51] Speaker 02: In other words, that [00:23:53] Speaker 02: party's claims about the need for discovery, we agree it's there. [00:23:57] Speaker 02: It's something that they can properly raise, and if they're impermissibly denying it, that can come up in a challenge. [00:24:03] Speaker 02: That would end the question. [00:24:04] Speaker 01: That's correct, that it can be channeled to the courts of review, and if the agency... Well, again, I'm trying to make sure we wouldn't be committing some error of our own by saying that that type of discovery is available. [00:24:15] Speaker 01: That's what I'm asking you. [00:24:18] Speaker 01: Right. [00:24:18] Speaker 02: In other words, is there something in the regs anywhere, either in the bulletin, [00:24:24] Speaker 02: or in regs somewhere that says they're not entitled to discovery. [00:24:29] Speaker 02: Now I don't want to, we can't quibble and it's going to be not important, it seems to me that any party who wants discovery always says they don't have enough. [00:24:39] Speaker 02: district court judges face that all the time. [00:24:41] Speaker 02: So I'm not talking about that question. [00:24:43] Speaker 02: Is there anything in the bulletin or in the agency's existing regs that say, you can't have reasonable discovery? [00:24:51] Speaker 04: I am not aware of any such limitation. [00:24:53] Speaker 02: Is there anything that says, you can have reasonable discovery in the regs? [00:24:58] Speaker 04: I am not aware if the regulations basically on that point have been informed that they could receive discovery on these issues before the district director. [00:25:04] Speaker 01: The question is discovery of what? [00:25:06] Speaker 04: I believe a discovery related to their claims generally. [00:25:08] Speaker 04: I'm sorry, I can't be more specific on this just because we haven't briefed this issue. [00:25:13] Speaker 02: Now, the bulletin does not foreclose it by insurance, right? [00:25:16] Speaker 02: No, the bulletin only instructs... It doesn't purport to foreclose it by insurance. [00:25:20] Speaker 02: It simply says in this kind of... Is it a fixed... The bulletin doesn't purport to be a fixed ruling on [00:25:28] Speaker 02: Who's liable, does it? [00:25:30] Speaker 02: No. [00:25:30] Speaker 04: All it does is instruct them to send a notice of claim saying you may potentially be liable. [00:25:34] Speaker 04: That's what the adjudication is to determine. [00:25:37] Speaker 01: All right. [00:25:37] Speaker 01: Thank you. [00:25:38] Speaker 01: Thank you very much. [00:25:41] Speaker 01: Mr. Solomons, we'll give you two minutes. [00:25:44] Speaker 03: First, Judge Edwards, the first count in our complaint is that this should have been published as a rule, that it's in violation of the APA because it wasn't. [00:25:53] Speaker 02: That is there. [00:25:54] Speaker 02: That's fine. [00:25:56] Speaker 02: Thank you for reminding me. [00:25:59] Speaker 02: That is an interesting question. [00:26:00] Speaker 02: I think you've got problems, but that's fine. [00:26:03] Speaker 03: Well, I think that if you look at the definition of rule in U.S. [00:26:06] Speaker 03: 8554, this fits it. [00:26:09] Speaker 03: It's not guidance. [00:26:10] Speaker 03: It requires substantial action by lots of different people. [00:26:16] Speaker 03: And remember, this is not unlike Zocale, unlike Gercasey. [00:26:20] Speaker 03: It's not an SEC case. [00:26:22] Speaker 03: It's not an FTC case. [00:26:24] Speaker 03: It's a black lung case. [00:26:25] Speaker 03: You've got a third party there who has real needs to be taken care of. [00:26:30] Speaker 03: And the Labor Department is very concerned with that. [00:26:32] Speaker 03: So are we concerned with that. [00:26:34] Speaker 03: But to the extent that it's going to impair our ability to have a case on this issue, which we think should have been done in the rulemaking process as it was in NMA. [00:26:44] Speaker 03: And they couldn't do it in the rulemaking process because it's all retroactive. [00:26:49] Speaker 03: This is all about financial stuff. [00:26:52] Speaker 03: And all of the financial transactions that are relevant here took place no later than 2006, and many of them earlier than that. [00:27:01] Speaker 03: So the Labor Department knows, because you've already told them they can't do it, [00:27:04] Speaker 03: In NMA, you can't write a rule that's retroactive. [00:27:08] Speaker 03: So they did distinguish it as a bullet, and they could have called it a puppy. [00:27:12] Speaker 03: It's still a rule. [00:27:13] Speaker 02: Okay. [00:27:16] Speaker 02: There's no doubt debating the point. [00:27:17] Speaker 02: I hear what you're saying. [00:27:18] Speaker 03: Okay. [00:27:19] Speaker 03: Now, a couple of other points if I can make them. [00:27:24] Speaker 03: There's no discovery before the district director. [00:27:27] Speaker 02: That's hardly surprising. [00:27:30] Speaker 02: The question is whether once you're in an adjudication. [00:27:33] Speaker 03: Well, their view, the Labor Department has already argued in its briefs that if we don't supply, the only discovery we get is before the district director. [00:27:43] Speaker 03: And if we don't get the kind of discovery we're allowed, which is basically nothing, then we're not allowed to discovery later about all the issues. [00:27:51] Speaker 02: You have some rule that says you're denied discovery? [00:27:55] Speaker 02: Is there a rule? [00:27:58] Speaker 02: No, no, an agency rule. [00:28:01] Speaker 02: Well, if there's an agency rule, you can send us an agency rule that says you're not allowed discovery, and that would cause us to think about the argument you're making. [00:28:11] Speaker 02: I wasn't aware there was any agency rule that says you're denied discovery. [00:28:16] Speaker 03: Well, I'm saying is if there's an agency rule [00:28:22] Speaker 02: that says a party in your position cannot get discovered because otherwise in writing these kinds of opinions when we would address them we would say, of course a party is entitled to fair process. [00:28:35] Speaker 02: And if that includes discovery and appropriate cases, we assume unless there's a rule to the contrary, they'd get it. [00:28:41] Speaker 02: That's what we would write, unless there's a rule that says no. [00:28:44] Speaker 03: Okay. [00:28:44] Speaker 03: And what they do is they have a rule that says something, and then they have briefs that say it means that we get it. [00:28:51] Speaker 02: We don't care about the briefs. [00:28:52] Speaker 02: In this case, all that matters is whether there's a rule. [00:28:57] Speaker 03: It's six of one half dozen of the other. [00:28:59] Speaker 01: They have a brief interpreting the regulation, I guess. [00:29:01] Speaker 03: That's their brief interpreting their regulation, which they're no doubt going to claim deference for someplace. [00:29:07] Speaker 02: But the only place we are now is here. [00:29:10] Speaker 02: And so if you have a rule, don't tell me what's in somebody's brief. [00:29:15] Speaker 02: If you have a rule, give it to us, because I'd love to see it. [00:29:18] Speaker 03: OK. [00:29:18] Speaker 03: The ALJs do what the Department of Labor's lawyers tell them. [00:29:23] Speaker 03: The Benefits Review Board cannot overturn a rule. [00:29:26] Speaker 03: They have never done it. [00:29:28] Speaker 03: I think the Third Circuit in one case said, well, they could theoretically, but it wouldn't matter because it couldn't be effectuated because the agency would take it up. [00:29:37] Speaker 03: The thing is, what we're dealing with here is kind of a catch-22 situation. [00:29:41] Speaker 02: Well, you know, the rules that we're finding now, 20 CFR 725.455 parties may take depositions or interrogatories in the proceedings. [00:29:54] Speaker 03: Yeah. [00:29:55] Speaker 03: Your Honor, but there's another rule that says that if you want to contest responsibility, you've got to do it within 60 days before you know anything. [00:30:04] Speaker 03: It's, do you have it there? [00:30:08] Speaker 03: I mean, the thing is that people are pretty well-schooled at how they're going to do this, and the thing is it's not fair. [00:30:15] Speaker 03: And which one? [00:30:18] Speaker 03: Okay. [00:30:19] Speaker 03: 725-4, it's 20 CFR 725-408. [00:30:25] Speaker 03: Now, this is what we're allowed to do to respond to the notification that is required by the bulletin. [00:30:33] Speaker 03: This is like a complaint. [00:30:35] Speaker 03: If we don't answer it, we're defaulted. [00:30:38] Speaker 03: So it's not just a guidance document. [00:30:40] Speaker 03: So what is the rule of thumb? [00:30:41] Speaker 03: Well, you're going to have to look through it for a second here. [00:30:50] Speaker 03: Okay, this is before the district director. [00:30:53] Speaker 03: An operator which receives notification under 725-407, which fails to file a response within the time limit provided by that section, shall not be allowed to contest its liability for the payment of benefits on any of the grounds set forth in the notice document. [00:31:11] Speaker 03: Within 90 days of the date on which it receives notification under 725-407, an operator may submit documentary evidence in support of its position. [00:31:22] Speaker 03: No documentary evidence. [00:31:24] Speaker 03: This is before the district director. [00:31:27] Speaker 03: Relevant to the ground set forth in the termination may be admitted in any further proceeding. [00:31:34] Speaker 03: That would be before the ALJ too, by the way. [00:31:37] Speaker 03: unless it is submitted within a time limit set forth in the section, which is back here in the 90 days in a context in which we can't get discovery. [00:31:46] Speaker 01: I'll tell you what, how about the parties can submit to us letters citing whatever regulations they have or if you want to say their position litigation in a brief with citations has been what their position is as to the ability to obtain discovery either before the district director or denied by the district director before the ALJ on the type of liability issues you want to raise. [00:32:10] Speaker 01: That's fine. [00:32:10] Speaker 03: I would like to request that we do it serially, since I have no idea what they're going to say. [00:32:18] Speaker 01: That's not how we do letter briefs, like this after arguments. [00:32:20] Speaker 01: So you have your position on how it works and what documents you've seen, what regulations are important to you. [00:32:27] Speaker 01: They'll have theirs. [00:32:29] Speaker 01: And if we think we need more information, we'll let you know. [00:32:31] Speaker 02: Yeah, and keep in account what we said in Jor-Kazi, which you're entitled to a fair proceeding, and if not the factual basis for the agency's record is not adequate, we send it back. [00:32:40] Speaker 02: That's the way it works. [00:32:42] Speaker 02: Which means if you didn't get the scourge you should have gotten, it'd go back. [00:32:46] Speaker 03: I hope you're sitting by designation when we need to do that. [00:32:50] Speaker 03: All right. [00:32:50] Speaker 01: Thank you very much. [00:32:51] Speaker 01: The case is submitted.