HOLIDAY WEEK IN THE APPELLATE COURTS

[Posted November 26, 2006] Last week was a short work week for the three appellate courts that sit in Virginia, but it was anything but uneventful. Read on:

Fourth Circuit

The federal appellate court released no fewer than 61 decisions in the three business days of the week. But for those looking for cite-worthy guidance, you went hungry; only one opinion was designated for publication. That one, though, was an absolute whopper; be sure to read this for a real surprise.

It starts out modestly enough; Perry v. Mynu Coals Inc. is a petition for review of an administrative decision of the Benefits Review Board in a pneumoconiosis claim. During the Great Depression, with Franklin Roosevelt newly installed in his first term in the White House, George Perry took a job in the coal fields of West Virginia. As if that weren’t dangerous enough, he smoked — a pack and a half (up to two packs) a day. Predictably, he got lung disease, and had to retire in 1975, after 42 years on the job. He lived another 25 years before his health ultimately failed him; he died in January 2001, most likely in his 80’s.

His widow filed a claim under the Black Lung Benefits Act. The federal Workers’ Comp programs director found benefits appropriate, but the mine sought a hearing before an administrative law judge. That judge listened to no fewer than six physicians, including one who performed an autopsy on Mr. Perry and found a couple of significant and suggestive masses in his lung tissue. But the ALJ found the mine’s four experts more persuasive than the widow’s two; he accordingly denied benefits after making that specific credibility finding. The Review Board agreed on appeal.

In this ruling, issued on Monday, November 20, the Fourth Circuit reverses, finding that the ALJ and the Board misapplied the conclusive presumption provisions in the BLBA. The dispositive factual issue is whether the pneumoconiosis caused Mr. Perry’s death; all parties agreed that he suffered from the disease, but he also had lung cancer. But miners get a special benefit conferred by this statute. Essentially, if a claimant proves that her spouse had Black Lung, that he got it from working the mines, and that he died from it, benefits are due. The first two factors weren’t in dispute here. (Keep reading; the juicy part is coming.)

The real fight is over the third factor. You can prove causation of death in one of three ways, but the one that matters here is the third, an irrebutable presumption that airses when a significant mass is found by X-ray, biopsy, or autopsy. The court here finds the autopsy doctor’s testimony, although occasionally equivocal, to be the more credible. It therefore reverses and directs an award of benefits to the widow. Judge Williams dissents in part, agreeing that the evidence was sufficient to trigger the case-dispositive presumption, but finding it more appropriate to remand for an administrative determination of causation, given the proper standard for evaluation of the evidence.

The promised whopper is buried in the preceding paragraph, but I’ll cover it in some detail here.

The first clue I had that this would be something beyond the usual appellate opinion was when I read this sentence on page 9 of the slip opinion: “Of course, the decision of the ALJ, as repeated by the Board, is simply wrong.” Well, you might think, that’s not all that scandalous; the job of appellate jurists is to correct rulings that they perceive as erroneous. What’s so unusual about a finding that a lower tribunal got something wrong?

It’s the language by which the court makes this ruling. In a break from the subtle, diplomatic language we’re accustomed to seeing in appellate prose, it’s a pretty blunt statement. But even this pales in comparison with the surprise that awaits the reader on the next page:

“The ALJ’s basis for rejecting Dr. Mellen’s testimony as equivocal was Dr. Mellen’s statement that he was not ‘one-hundred percent sure’ of his conclusion. We disagree. Read in context, Dr. Mellen’s qualification was at most an acknowledgement that uncertainty is part of medicine. A refusal to express a diagnosis in categorical terms is candor, not equivocation, and we are of opinion that it enhances rather than undermines Dr. Mellen’s credibility. In contrast, the other doctors’ adamancy that their opponents were incorrect in all or nearly all respects detracts from credibility.”

This language stopped me cold when I read it; I have simply never seen anything like this before. In a closing argument to a jury, yes; of course. But here is an appellate court telling a finder of fact which witness is the more credible. I won’t say that this is unprecedented in the annals of jurisprudence; I have read nowhere near enough to make a pronouncement like that. And it may be that the nature of this case (based on an administrative ruling instead of, say, a jury trial) might make the court a bit more likely to step in on a credibility issue like this. But all told, this language sticks out like a bright orange flag in a black-and-white movie. Appellate courts, by and large, avoid credibilty questions as though they’re radioactive. It is thus all the more remarkable to see the court embrace this particular question in this way.

By the way, this opinion is not merely the only one of the 61 handed down this week that is published; it’s also the only one to enjoy oral argument. For the week, the court dispensed with oral argument in more than 98% of the cases decided.

Court of Appeals

Property settlement agreements in divorce cases must be in writing and signed by the parties. That’s statutory (Code §20-149), but there are two exceptions ( §20-155). One is if they’re incorporated into a court order; the other is if they’re “recorded and transcribed by a court reporter and affirmed by the parties on the record personally.” The second of these exceptions gets a little judicial explication in Bryant v. McDougal, handed down on Tuesday, November 21.

When the bloom was off the — well, you know the story. Husband filed for a no-fault divorce; wife answered with a claim of her own. The parties scheduled depositions in the offices of wife’s attorney. Husband showed up, sans lawyer (the opinon doesn’t say whether he was pro se, or if his lawyer simply dropped the ball). Instead of depositions, the parties sat down to hammer out a settlement agreement.

It worked; the parties made a deal, and wife’s lawyer dictated it to the court reporter who had showed up for the planned depositions. At that point, he asked husband to confirm on the record that these were the terms to which he had agreed. Husband answered: “I acknowledge that this outlines the substance, the essential substance of an agreement that is subject to being put into a Property Settlement Agreement, a fully completed Property Settlement Agreement.” Asked if there were any other terms, and if this was a complete recitation, he replied, “No. Subject to inclusion into a Property Settlement Agreement.”

Well, you’ve probably already figured out by now that the husband later decided (presumably after securing the advice of counsel) that the deal he made wasn’t such a hot bargain after all; he refused to sign the PSA. (If he had signed, we wouldn’t have an appellate decision, now, would we?)

Go back and take a look at the statutory language mentioned above. Looks like it’s covered pretty well, right? After all, husband has just confirmed the terms of the deal he made with wife, on the record. Well, it’s not. The Court of Appeals rules that the specific language the (uncounseled!) husband used was sufficient to make the deal conditioned upon one more act, and that was the execution of a PSA. He twice specifically said that the deal was “subject to” inclusion in a PSA, and that makes the deal inchoate until that event occurs. Since that event never did occur, the PSA is not binding on the husband; the case is therefore remanded to the trial court for equitable distribution of the former spouses’ estate.

Supreme Court

The court announced the award of one writ this week, in Young v. Commonwealth. According to the assignment of error, the tantalizing question presented relates to Code §19.2-295.1, the bifurcated sentencing statute. That section provides in part, “If the sentence imposed pursuant to this section is subsequently set aside or found invalid solely due to an error in the sentencing proceeding, the court shall impanel a different jury to ascertain punishment, unless the defendant, the attorney for the Commonwealth and the court agree, in the manner provided in §19.2-257, that the court shall fix punishment.” The assignment of error, though, hints that this provision has been applied in a manner that was, shall we say, not specifically contemplated by the General Assembly: “The Court of Appeals erred in concluding the statutory language of Sec. 19.2-295.1 allows for re-sentencing where the error occurred in the guilt phase of the trial.” [Emphasis supplied.]

This promises to be an interesting criminal appeal, of which the Supreme Court has accepted an increased number in recent months. The case will probably be calendared for oral argument in the March or April sessions (more likely the latter), with a decision coming seven weeks later.