After remand to determine a modification motion, the administrative law judge ruled that the original ruling of complex pneumoconiosis was erroneous and Westmoreland had not committed misconduct in bringing the motion and thus denied Sharpe’s petition for survivor’s black lung benefits. The review board reversed ruling the judge applied the wrong legal standard. The panel, 2-1, affirmed. The majority agreed that Westmoreland bad motive of bringing the modification motion to defeat the survivor’s claim was improper. Thus, while the original finding may have been erroneous, it was not in the interests of justice to overturn it. Further, the majority held that the original finding was final for estoppels purposes and Westmoreland had a fair opportunity to litigate the issue. Thus, Sharpe was allowed to estop Westmoreland from contesting the cause of death. The dissent argued that the majority exceeded its authority by essentially undertaking de novo factual review of the case rather than asking if the administrative law judge’s findings were supported by more than a scintilla of evidence. It also argued that accurate distribution of benefits was the purpose of the modification process. It finally argued that even under the majority’s test, the judge correctly determined the factors supported modification and thus denial of survivor benefits as medical evidence supported the conclusion that Sharpe’s husband did not suffer from pneumoconiosis, avoiding a survivor’s award is the type of relief that makes a claim not futile, that only Westmoreland was prejudiced by its failure to bring the modification claim sooner and that Westmoreland’s use of a statutorily permitted procedural mechanism is proper.
Powell brought a habeas petition seeking a new sentencing based on a Supreme Court case holding that actual convictions must be used to determine if recidivist statutes are triggered. The district court denied the petition and the panel, with one judge dissenting in part, affirmed. It noted that the petition was untimely unless the Supreme Court rule applied in collateral review. As the rule only implicated the manner of determining sentence and did not change the class of people subject to criminal or the course of conduct which is prescribed. The dissent argued the Supreme Court rule was substantive as it narrowed the class of persons who can be prosecuted for felon in possession of a firearm and limits the applicability of enhanced drug sentences. He therefore concluded the majority was patently wrong in adopting its per se nonretroactive rule. However, on the facts of this case, the judge concurred in judgment arguing Powell’s sentence was within the unenhanced statutory maximum and thus lawful.
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