Amicus Curiae Brief — Arch Resources, Inc., fka Arch Coal, et al., Petitioners v. Douglas Pennington, Acting Director, Office of Workers' Compensation Programs, Department of Labor, et al.

No. 24-784

IN THE

Supreme Court of the United States

_____________

ARCH RESOURCES, INC., AND

APOGEE COAL COMPANY LLC,

Petitioners,

V.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, U.S. DEPARTMENT OF LABOR AND

DAVID M. HOWARD,

Respondents.

_____________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

_____________

BRIEF OF AMICUS CURIAE NATIONAL MINING

ASSOCIATION IN SUPPORT OF PETITIONERS

_____________

Daniel W. Wolff

Counsel of Record

Monty Cooper

Emily Werkmann

CROWELL & MORING LLP

1001 Pennsylvania Avenue,

NW

Washington, DC 20004

(202) 624-2621

dwolff@crowell.com

Counsel for Amicus Curiae

National Mining Association

i

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE .................. 1

SUMMARY OF ARGUMENT.................................... 2

ARGUMENT .............................................................. 7

I.

DOL Mismanaged the Trust Fund. .................... 7

A.

The Trust Fund finances assistance

to miners.................................................... 7

B.

DOL mismanaged the Trust Fund for

decades. ..................................................... 9

II. The Sixth Circuit Ignored the Distinction

Between Commercial and Self-Insurance. ..... 12

A.

Commercial insurance is distinct

from self-insurance. ................................ 12

B.

The Sixth Circuit’s decision removes

incentives of self-insurance and

eliminates self-insurance as a viable

option. ...................................................... 14

III. The Sixth Circuit Placed DOL’s Interests

Over the Reliance Interests of SelfInsurers. ........................................................... 18

IV. The Sixth Circuit Split Creates

Inconsistencies for National Operators. ......... 21

CONCLUSION ......................................................... 23

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Adkins v. Apogee Coal,

Case ID: B7MHB-2015029 (Feb. 16,

2016) ................................................................ 3, 8

Alabama Association of Realtors v.

Department of Health & Human

Services,

594 U.S. 758 (2021) ........................................... 20

Apogee Coal Co. v. Dir., OWCP,

112 F.4th 343 (6th Cir. 2024) ................. 2, 3, 4, 5

Apogee Coal Co. v. OWCP,

113 F.4th 751 (7th Cir. 2024)

............................................................. 5, 6, 12, 21

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142 (2012) ..........................18, 19, 20, 21

Glen Coal Co. v. Seals,

147 F.3d 502 (6th Cir. 1998)............................. 22

Island Creek Coal Co. v. Henline,

456 F.3d 421 (4th Cir. 2006)............................... 6

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ........................................... 20

Louisiana Pub. Serv. Comm'n v. FCC,

476 U.S. 355 (1986) ........................................... 12

iii

Nat’l Mining Ass’n v. Dep’t of Lab.,

292 F.3d 849 (D.C. Cir. 2002) ........................... 22

NLRB v. Bell Aerospace Co. Div. of Textron,

Inc.,

416 U.S. 267 (1974) ........................................... 18

President & Fellows of Harvard Coll. v.

Zurich Am. Ins. Co.,

77 F.4th 33 (1st Cir. 2023).................... 13, 14, 15

SEC v. Chenery Corp.,

318 U.S. 80 (1943) ................................. 5, 6, 7, 21

Statutes

26 U.S.C. § 9501(d)(1)(B) ..................................... 3, 8

30 U.S.C. §§ 901, et seq. ........................................... 3

30 U.S.C. § 933(a)................................................... 12

Regulations

20 C.F.R. § 725.408(a)(2)(v) ................................. 3, 8

20 C.F.R. § 725.490(a) .............................................. 3

20 C.F.R. § 725.494 .................................................. 4

20 C.F.R. § 725.495 .................................................. 4

20 C.F.R. § 726.1 ...................................................... 8

20 C.F.R. § 726.4 .................................................. 4, 5

20 C.F.R. § 726.4(b) .................................................. 6

20 C.F.R. § 726.102 ................................................ 14

iv

20 C.F.R. § 726.105 ................................................ 14

20 C.F.R. § 726.110(a)(1 ................................... 4, 5, 6

20 C.F.R. § 726.114(a) ...................................... 11, 14

20 C.F.R. § 726.203(a) ............................................ 13

20 C.F.R. § 726.205 ................................................ 13

Other Authorities

Deborah Beim & Kelly Raider, Legal

Uniformity in American Courts, J. of

Empirical Legal Stud. (Sept. 2019) .................. 22

William N. Eskridge Jr., Reliance Interests

in Statutory and Constitutional

Interpretation, 76 Vand. L. Rev. 681, 683

(Apr. 2023) ........................................................ 18

INTEREST OF THE AMICUS CURIAE1

The National Mining Association (“NMA”) is a

national trade association that serves as the voice of

the mining industry, including nearly every major

coal company operating in the United States. The

NMA has over 250 members, including companies

and organizations involved in every aspect of U.S.

mining. America’s mining industry supplies the

essential materials necessary for practically every

sector of our economy, all delivered under worldleading environmental, safety, and labor standards.

The NMA works to ensure America has secure and

reliable supply chains, abundant and affordable

energy, and the American sourced materials

necessary for U.S. manufacturing and national and

economic security. A core mission of the NMA is

working with Congress and regulators to advocate for

public policies that will help America fully and

responsibly utilize its vast natural resources. The

NMA also has a long history of representing the

mining industry in the courts.

Petitioner Arch Resources, Inc. (“Arch”) is an

NMA member. If the Sixth Circuit’s decision is

allowed to stand, NMA and its members will face

confusion and uncertainty as to their liability under

1 Pursuant to this Court’s Rule 37.2, NMA provided timely notice

to all parties of their intent to file this amicus brief. Further,

pursuant to this Court’s Rule 37.6, NMA states that no counsel

for any party authored this brief in whole or in part, and that no

entity or person, aside from NMA, their members, or their

counsel, made any monetary contribution intended to fund the

preparation or submission of this brief.

2

the Black Lung Benefits Act and could face increased

liability and exposure as self-insurers.

SUMMARY OF ARGUMENT

This case arose in response to the Department of

Labor’s (“DOL”) search for a deep pocket: a solvent

company to pay black-lung-insurance benefits to a

miner’s family rather than lawfully allocating

liability for those benefits to the Black Lung Benefits

Trust Fund (“Trust Fund”), which was teetering on

insolvency due to DOL’s own mismanagement.

After 17 years of mining, David Howard retired as

a miner from his last employer, Apogee Coal

Company (“Apogee”), in 1997. At that time, Apogee

was self-insured through its corporate parent, Arch.

See Apogee Coal Co. v. Dir., OWCP, 112 F.4th 343, 349

(6th Cir. 2024) (“Howard”).

In 2005, Arch sold Apogee and all its past,

present, and future black-lung liabilities. See id.

Patriot Coal (“Patriot”) ultimately purchased Apogee

and its liabilities in 2008. See id. DOL then approved

Patriot as a self-insurer of Apogee’s liabilities. See id.

As a result, Arch became a former self-insured parent

of Apogee.

When Howard filed for benefits in 2014, the

District Director investigating his claim identified

Apogee, self-insured through Patriot, as the

potentially liable operator and issued a notice naming

it as such. See id. DOL then named Patriot as the

presumptive insurer of Howard’s claim. See id.

In October 2015, Patriot, along with its

subsidiaries including Apogee, declared bankruptcy.

3

See id. Because Patriot, as a bankrupt self-insurer,

could not assume liability for Apogee’s payments, the

Black Lung Benefits Act, 30 U.S.C. §§ 901, et seq.

(“BLBA”), required that DOL find that Apogee was

not “capable of assuming liability for the payment[s],”

20 C.F.R. § 725.408(a)(2)(v), and thus declare the

Trust Fund as liable. See 26 U.S.C. § 9501(d)(1)(B)

(stating that the cost of benefits falls to the Trust

Fund when there is no operator liable to pay benefits);

20 C.F.R. § 725.490(a) (“Where no such operator

exists or the operator determined to be liable is in

default in any case, the fund shall pay the benefits

due and seek reimbursement as is appropriate.”); see

also Preliminary Decision & Order, Adkins v. Apogee

Coal, Case ID: B7MHB-2015029 (Feb. 16, 2016)

(Charleston DOL), at Pet. App. 213a-214a (in a

separate case, finding the Trust Fund liable because

Patriot, the self-insurer, declared bankruptcy).

But DOL did not find the Trust Fund liable.

Instead, citing concerns over the solvency of the Trust

Fund, DOL ignored the statutory framework and

decades of departmental practice and adopted a new

policy—Bulletin 16-01—through which it declared

that, as of November 2015, claims against nearly 50

bankrupt Patriot subsidiaries would be chargeable to

those subsidiaries’ former self-insured parents based

on an occurrence trigger, to wit, the last day of the

miner’s employment with the later-sold subsidiary.

See Bulletin 16-01 at 1. In so doing, DOL imported

two rules governing commercial insurance (in which

the policy in effect on the date of a miner’s last coaldust exposure covers the liability, i.e., an occurrence

4

trigger), see 20 C.F.R. §§ 725.4942 and 725.4953, into

the self-insurer context (in which the self-insurer’s

policy in effect when a claim is filed is liable, i.e., a

claims-made trigger). What is more, it did so without

subjecting this new policy to notice-and-comment

rulemaking. See Pet. at 13.

On the basis of Bulletin 16-01, DOL declared

Arch, rather than the bankrupt Patriot, liable as the

insurer of Apogee’s (the operator) liability for

Howard’s claim. Howard, 112 F.4th at 349.

DOL’s decision was then reviewed by an

Administrative Law Judge (the “ALJ”) and the Board,

both of which embraced DOL’s new policy to affirm

finding Arch responsible as an insurer. Pet. at 13.

Importantly, the ALJ affirmatively disclaimed

another set of DOL’s BLBA regulations (20 C.F.R. §§

726.110(a)(1) and 726.4) as forming any basis of

Arch’s liability, because those provisions4 were not

themselves a source of liability for self-insurers. See

Decision & Order of U.S. Dep’t of Lab., Howard v.

2 20 C.F.R. § 725.494 (stating that “[a]n operator may be

considered a ‘potentially liable operator’ with respect to a claim

for benefits” so long as certain conditions are met, including that

the miner’s disability or death arose from the miner’s

employment and the operator can assume liability).

3 20 C.F.R. § 725.495 (stating that “[t]he operator responsible for

the payment of benefits in a claim adjudicated under this part

(the ‘responsible operator’) shall be the potentially liable

operator … that most recently employed the miner”).

4 The Part 726 regulations govern insurance requirements of

operators. Specifically, 20 C.F.R. § 726.110(a)(1) mandates that

all self-insurers must agree to pay BLBA benefits when due, and

20 C.F.R. § 726.4 addresses operators and their responsibilities

for insurance coverage.

5

Apogee Coal Co. (Feb. 25, 2020) (“ALJ Feb. 2020

Decision & Order”), at Pet. App. 122a-123a; Pet. at 14.

Arch appealed the Board’s decision to the Sixth

Circuit, which affirmed. Howard, 112 F.4th at 347.

The court declined to follow this Court’s instruction in

SEC v. Chenery Corp., 318 U.S. 80 (1943), that

requires courts to evaluate agency action with

reference to the grounds stated by the agency at the

time it acts. Instead, the court affirmed the DOL

policy by relying on the very regulations, 20 C.F.R. §§

726.110(a)(1) and 726.4, that the ALJ had rejected as

providing a basis to uphold the DOL policy.5 Howard,

112 F.4th at 354; see Pet. at 14.

As the Sixth Circuit considered Howard, Arch

was litigating a similar case in the Seventh Circuit.

See Apogee Coal Co. v. OWCP, 113 F.4th 751 (7th Cir.

2024) (“Grimes”). Although Grimes involved a

different miner, it concerned the same operator

(Apogee), former self-insurer (Arch), self-insurer

(Patriot), and decision by the ALJ and Board to follow

Bulletin 6-10. Id. at 756-57. As in Howard, the

Bulletin resulted in the ALJ and Board declaring

Arch—rather than Patriot—liable as the responsible

insurer. Id. Also as in Howard, the Board relied on

5 See ALJ Feb. 2020 Decision & Order at Pet. App. 122a-123a

(“[T]he self-insurance regulations simply do not govern the

imposition of liability. Section 726 of the regulations governs

only how an operator must secure its existing liability; it does

not create liability. Whether an operator complies with the

insurance requirements of section 726 (or whether the

Department properly administers these requirements) does not

initiate or terminate liability. Rather, it is the Act itself and the

substantive requirements of section 725 (particularly subpart G)

that impose liability.”).

6

Part 725 regulations to find Arch liable as a selfinsurer. Id.

However, unlike as in Howard, the Seventh

Circuit followed Chenery and evaluated the agency

action “on the reasoning given by the agency at the

time of its decision.” Id. at 759. This was in accord

with an earlier BLBA benefits case in which the

Fourth Circuit held that the Chenery doctrine applied

with full force and effect. See Island Creek Coal Co. v.

Henline, 456 F.3d 421, 426 (4th Cir. 2006). Following

Chenery, the Seventh Circuit examined the Board’s

reliance on Part 725, found it incorrect, and held that

Arch was not liable as a self-insurer. Grimes, 113

F.4th at 761-62.

First, the Seventh Circuit found that the Part 725

regulations, which govern responsible operators, does

not make Arch legally liable as a responsible selfinsurer. Id. at 760. In fact, the court concluded that it

was “unable to identify a statutory or regulatory

provision—identified by the ALJ or Board—that

supports holding Arch liable for the benefits

obligation owed by Apogee to [Grimes].” Id. at 761.

Second, the Seventh Circuit explicitly disagreed

with the Sixth Circuit’s application of the Part 726

regulations (20 C.F.R. §§ 726.110(a)(1), 726.4(b)) to

find Arch liable. The Seventh Circuit read these

regulations as governing operators’ insurance

requirements, not as a separate source of liability that

allowed DOL to assign liability to an insurer. Id.

As a result, the Seventh Circuit concluded Arch

could not be held liable for payment, and instead held

that liability ran to the Trust Fund. Id. at 762.

7

In its petition, Arch persuasively explains that

the Sixth Circuit erred in not applying the Chenery

doctrine and misapplied the Part 726 regulations to

find Arch liable.

NMA submits this brief as amicus curiae to

provide additional context for how the Sixth Circuit’s

decision will negatively impact the coal mining

industry if allowed to stand. This case stems from

DOL’s decades-long failure to manage the Trust

Fund, which led to DOL’s desperate search to find any

company able to pay the agency’s debt. The court of

appeal’s decision ignores the distinction between

commercial and self-insurance, altering the nature of

self-insurance in the coal mining industry and

disincentivizing utilization of self-insurance in the

future in contravention of congressional intent. The

Sixth Circuit also placed DOL’s interests over the

reliance interests of self-insurers that depend on the

certainty of BLBA’s insurance regulations to

structure black-lung benefit payments to mining

families.

ARGUMENT

I.

DOL Mismanaged the Trust Fund.

A.

The Trust Fund finances assistance to

miners.

The Trust Fund finances medical and cash

assistance to certain coal miners who have been

totally disabled due to pneumoconiosis (black lung

disease). See U.S. Gov’t Accountability Off., GAO-2021, Black Lung Benefits Program: Improved Oversight

of Coal Mine Operator Insurance Is Needed, at 1 (Feb.

2020) (“2020 GAO Report”). The primary source of

8

revenue for the Trust Fund is an excise tax on coal

produced and sold domestically. Congressional

Research Service (“CRS”), The Black Lung Program,

the Black Lung Disability Trust Fund, and the Excise

Tax on Coal, at 1 (Feb. 7, 2023) (“2023 CRS Report”).

If excise tax revenue is not sufficient to finance black

lung benefits, the Trust Fund may borrow from the

U.S. Treasury’s general fund. Id.

Black lung benefits are generally to be paid by

responsible coal-mine operators. Id. at 4. The BLBA

states that an operator may secure the payment of

benefits by obtaining independent liability insurance

(commercial insurance), or by becoming a self-insurer,

qualified under the BLBA. 20 C.F.R. § 726.1. If no

entity can pay, either through its commercial policy

or self-insurance, the Trust Fund must take

responsibility for doing so. 20 C.F.R. §

725.408(a)(2)(v) (a liable operator must be “capable of

assuming liability for the payment of benefits”); see

Preliminary Decision & Order, Adkins v. Apogee Coal,

Case ID: B7MHB-2015029 (Feb. 16, 2016)

(Charleston DOL), at Pet. App. 213a-214a (where a

company is self-insured but declares bankruptcy, it

“no longer possesses sufficient assets to secure the

payment of benefits” and, therefore, “is deemed not

viable and [] is considered to be the responsibility of

the Black Lung Disability Trust Fund”).

Thus, when Patriot and Apogee went bankrupt,

the Trust Fund was legally responsible for the

liability to pay Apogee’s miners’ BLBA benefits. See

26 U.S.C. § 9501(d)(1)(B) (assigning the Trust Fund

as responsible for payment of benefits when DOL

cannot identify a responsible party).

9

The Trust Fund, however, is inadequately funded.

It has been in debt, with its expenditures exceeding

its revenues, almost every year since the Trust Fund’s

first complete fiscal year in 1979. See 2020 GAO

Report at 1. Beginning in fiscal year 1990, however,

Trust Fund revenue generally began to exceed

combined benefit payments and administrative costs,

and, in fact, total Trust Fund cumulative revenue

collected from fiscal years 1979 through 2017

exceeded total cumulative benefit payments and

administrative costs incurred during these years. Yet,

interest owed from earlier years of borrowing led to

more borrowing and debt. See U.S. Gov’t

Accountability Off., GAO-18-351, Black Lung Benefits

Program: Options for Improving Trust Fund

Finances, at 8-9 (May 2018) (“2018 GAO Report”). In

January 2023 alone, the Trust Fund ran a $6 billion

deficit and had to borrow from the U.S. Treasury to

pay benefits and debt service. United Mine Workers

of America (“UMWA”), Comments on Proposed Rule

Regarding Black Lung Benefits Act: Authorization of

Self-Insurers,

at

1

(Apr.

19,

2023),

https://www.regulations.gov/comment/WCPO-20230001-0011 (“UMWA Comments”).

B.

DOL mismanaged the Trust Fund for

decades.

DOL’s mismanagement of the Trust Fund

threatens its solvency. For example, the DOL Deputy

Inspector General found in 1998 that the department

failed to guard against overpayments and payments

to beneficiaries that were the legal liability of a mine

operator. Patricia A. Dalton, DOL Deputy Inspector

General, The American Worker at a Crossroads,

Testimony, U.S. H.R., Comm. on Ed. & the Workforce,

10

at 6 (Sept. 28, 1998). DOL’s inability to rein in

excessive administrative costs has also impaired the

fund. In 2022, administrative costs totaled $75.2

million with a total of 23,642 beneficiaries receiving

benefits through the Trust Fund or their employing

coal company. “This suggests a 1,490 percent increase

in administrative costs per claim since 1982, even

though there was an 85 percent decrease in

beneficiaries over the same period.” Letter from Rep.

Virginia Foxx, U.S. H.R., Comm. on Ed. & the

Workforce, to Sec. Julie A. Su, U.S. Dep’t of Lab., at

2-3 (Nov. 13, 2024).

Another key problem according to the 2020 GAO

Report is DOL has not sufficiently overseen the coalmine-operator insurance program, which has exposed

the Trust Fund to financial risk. 2020 GAO Report at

1, 18. Among its major failures, DOL did not regularly

review operators’ finances to assess whether the

required amount of collateral should change for them

as self-insurers.

Agency regulations state that DOL may adjust

the amount of collateral required from self-insured

operators when experience or changed conditions so

warrant. Id. at 20. Additionally, DOL’s regulations

specify that reauthorization of the ability to selfinsure is not automatic but instead hinges on DOL’s

annual determination that existing security is

sufficient:

If the Office determines that such selfinsurer's experience indicates a need for

the deposit of additional security, no

reauthorization shall be issued for the

ensuing fiscal year until the Office

receives satisfactory proof that the

11

requisite amount of additional securities

has been deposited. A self-insurer who

currently has on file an indemnity bond

will receive from the Office each year a

bond form for execution in contemplation

of reauthorization, and the submission of

such bond duly executed in the amount

indicated by the Office will be deemed

and treated as such self-insurer's

application for reauthorization for the

ensuing fiscal year.

20 C.F.R. § 726.114(a) (emphasis added).

DOL, however, failed to regularly monitor these

operators to reauthorize their ability to self-insure. In

fact, in 2020, out of DOL’s 22 self-insured coal

operators, the agency had not reassessed black lung

liabilities or collateral levels of almost half the

operators in the previous 10 years. 2020 GAO Report

at 19-20. And DOL had not reauthorized one operator

in over 30 years. Id. at 20.

DOL’s failure to regularly assess the ability of

operators to self-insure led directly to the problems in

Howard: When Patriot filed for bankruptcy in 2015,

it transferred $230 million in black-lung liabilities to

the Trust Fund but had only $15 million (or 6 percent)

in collateral to cover those costs. UMWA Comments

at 5. Patriot’s bankruptcy exposed DOL’s failure to

ensure that certain self-insurers were adequately

capitalized to avoid draining the Trust Fund. Pet. at

12.

Ultimately, the strains on the Trust Fund and

mismanagement led DOL to take the desperate step

of changing its policy (via the Bulletin) to transfer

12

responsibility from the Trust Fund to any solvent

party it could find to pay these liabilities, regardless

of that party’s insurance-contract terms. DOL fails to

identify any authority that supports this new policy.

See Grimes, 113 F.4th at 761 (concluding that it was

unable to identify a statutory or regulatory provision

that supports holding Arch liable for the benefits

owed by Apogee to the miner); see also Louisiana Pub.

Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986)

(recognizing agencies have no power to act beyond the

powers conferred on them by statute).

II. The Sixth Circuit Ignored the Distinction

Between Commercial and Self-Insurance.

A.

Commercial insurance is distinct from

self-insurance.

The Sixth Circuit’s decision to apply the Part 726

regulations—finding that they were a source of

liability that could allow the DOL to assign liability

to self-insurers—flat out ignored the distinction

between commercial policies and self-insurance.

In the BLBA, Congress provides two methods for

coal mine operators to secure their black-lung-benefit

liability, 30 U.S.C. § 933(a), either through

commercial insurance or self-insurance backed with

financial security approved by DOL on an annual

basis. Significant differences exist between

commercial insurance and self-insurance that are

important to the mining industry’s insurance market.

Compare Part 726, Subpart B (“Self-Insurers,”

§§ 726.101-726.115) with Subpart C (“Insurance

Contracts” or “commercial insurance,” §§ 726.201726.213). Those differences include (1) timing for a

13

claim and (2) the financial requirements of selfinsurers versus commercial insurers.

First, for commercial insurance, the policy in

effect on the date of a miner’s last coal-dust exposure

covers the liability, i.e., an occurrence trigger. See 20

C.F.R. § 726.203(a). As a result, for commercial

insurance, coverage depends on when the injury

occurred—specifically, during the policy period—

regardless of when the claimant files a claim. See id.

Thus, commercial insurance, in effect, results in

perpetual liability for claims by miners whose last day

of work occurred during the policy period. Pet. at 9.

By contrast, for self-insurance, whoever selfinsures an operator when a claim is filed is liable, i.e.,

claims-made trigger. See President & Fellows of

Harvard Coll. v. Zurich Am. Ins. Co., 77 F.4th 33, 37

n.1 (1st Cir. 2023) (“[A] claims-made policy . . . covers

claims made against the insured during the policy

period, regardless of when the event or act that

instigated the claim occurred.”). As a result, for selfinsurance, coverage depends on when the claim is

filed—specifically, during a period of self-insurance—

regardless of when the event or act occurred. Id. Thus,

self-insurance does not allow for perpetual liability;

claims must be made during a set period. See id. at 39

(noting that broadly within the insurance industry,

“the critical distinction . . . between occurrence-based

and claims-made policies” includes when a claim can

be made).

Second, commercial and self-insurance policies

have

different

financial

requirements.

For

commercial insurance, the BLBA does not require

that companies have a certain amount of assets to

obtain a commercial insurance policy. See 20 C.F.R. §

14

726.205 (stating that “the failure of an operator to

obtain an adequate policy or contract of insurance

shall not affect such operator's liability for the

payment of any benefits for which he is determined

liable”).

By contrast, to self-insure, the BLBA requires an

extensive application process and provision of

financial instruments, typically bonds, to secure the

self-insurer’s potential liability. See 20 C.F.R. §§

726.102 (application), 726.105 (calculating security).

Further, following an initial approval, DOL may

renew the self-insurance authorization at annual

intervals, possibly with adjustments to the amount of

financial security required. See Pet. at 9-10; 20 C.F.R.

§ 726.114(a).

B.

The Sixth Circuit’s decision removes

incentives of self-insurance and

eliminates self-insurance as a viable

option.

A key incentive for companies to obtain selfinsurance is the ability to limit liability and control

costs. See Harvard Coll., 77 F.4th at 38 (finding that

the notice provisions of self-insurance policies are

intended to promote fairness in companies’ abilities to

set rates). In the insurance industry, self-insurance

agreements provide such cost certainty and stability

for self-insurers. As the court in Harvard College

recognized when it prevented Harvard from obtaining

insurance proceeds because it filed a claim outside of

the self-insurance policy’s set period:

The purpose of a claims-made policy is to

minimize the time between the insured

event and the payment. For that reason,

15

the insured event is the claim being

made against the insured during the

policy period and the claim being

reported to the insurer within that same

period or a slightly extended, and

specified, period. If a claim is made

against an insured, but the insurer does

not know about it until years later, the

primary purpose of insuring claims

rather than occurrences is frustrated.

Accordingly, the requirement that notice

of the claim be given in the policy period

or shortly thereafter in the claims-made

policy is of the essence in determining

whether coverage exists. Prejudice for

an untimely report in this instance is not

an appropriate inquiry.

Id. at 38 (internal quotation marks and citation

omitted).

The Sixth Circuit’s decision strips away these

incentives (limiting liability and controlling costs)

because it gives DOL the power, via executive fiat (in

this case, the Bulletin), to convert a self-insurance

policy into a commercial policy without the selfinsurer’s consent and to find a former self-insurer

liable even if the self-insurance coverage period ended

years earlier. DOL implemented this policy change

without allowing any of the companies impacted to

comment on or challenge it during notice-andcomment rulemaking.

In addition, the Sixth Circuit’s embrace of DOL’s

ultra vires policy creates negative consequences, like

additional financial obligations for self-insurers that

could potentially result in a system where an

16

operator’s liability could, in effect, be covered twice—

by a current self-insurer and former self-insuring

parent.

Operators are required to pay an excise tax, which

is the primary source of revenue for the Trust Fund.

See 2023 CRS Report at 1. Since 1990, excise tax

revenue has generally exceeded combined benefit

payments and administrative costs. See 2018 GAO

Report at 8. Interest payments on the Trust Fund’s

outstanding debt from earlier years of borrowing,

however, have meant the Trust Fund’s total

expenditures continue to exceed its total revenues. Id.

at 9. “As a result, the principal amount of the Trust

Fund’s total outstanding debt to Treasury’s general

fund increased and exceeded $10 billion by fiscal year

2008.” Id.

But if existing self-insurers, who sold their

properties and liabilities before DOL’s Bulletin, had

known that DOL might still hold them responsible for

such liabilities in the future, they likely would have

sold these properties for more money to cover future

potential claims. Without those additional resources,

existing self-insurers are in a weaker financial

position to meet future potential obligations to former

subsidiaries.

In 2005, Arch sold Apogee and its liabilities. The

sale price contemplated the elimination of federal

black lung liabilities, but Arch was then held liable—

due to DOL’s Bulletin issued ten years after the sale—

for Howard’s benefits when Patriot went bankrupt in

2015. Had Arch known when it sold Apogee that it

might still be liable a decade later, it likely would

have sold Apogee and the liabilities for more money

to cover this potential liability.

17

Ultimately, for future self-insurers, the Sixth

Circuit’s decision means uncertainty because DOL

can now turn their self-insurance contracts into

commercial-insurance agreements whenever the

agency wants. As a result, self-insurers will need even

more collateral—both for their existing properties’

liabilities and their former subsidiaries’ liabilities—to

protect their interests. DOL’s new policy will make

securing additional collateral even more difficult

given the tight insurance and bonding market for

these types of obligations. See generally The Surety &

Fidelity Association of America, Comments on

Proposed Rule Regarding Black Lung Benefits Act:

Authorization of Self-Insurers, at 1-2 (Apr. 19, 2023),

https://www.regulations.gov/comment/WCPO-20230001-0019. The idea that an operator’s liabilities

would be covered twice—first, by its current selfinsurer, and second, by its former self-insurer—flies

in the face of what Congress intended in creating the

Trust Fund.6

Allowing the Sixth Circuit’s decision to stand will

create negative consequences for the mining industry

and its insurance market, leading to fewer selfinsurers and potentially added burdens on the Trust

Fund.

6 Congress’s “original intent of establishing trust fund financing

for black lung benefits” was “‘to reduce reliance on the Treasury

and to recover costs from the mining industry.’” 2023 CRS

Report at 15 (quoting U.S. Cong., Joint Comm. on Taxation,

General Explanation of Tax Legislation Enacted in the 110th

Congress, 110th Cong., JCS-1-09, at 302 (Mar. 2009)). Therefore,

Congress’s intent was not to overburden the mining industry by

creating unending financial burdens for operators.

18

III. The Sixth Circuit Placed DOL’s Interests

Over the Reliance Interests of SelfInsurers.

The Sixth Circuit unreasonably deferred to and

sided with DOL’s interests over the reliance interests

of self-insurers. These stakeholders’ reliance interests

include following the BLBA and current selfinsurance rules to understand who must pay benefits.

Moreover, the BLBA will no longer be able to provide

assurances to self-insurers of what the law is if DOL

can change BLBA’s practical requirements upon mere

issuance of a Bulletin, much less one that is not even

subject to notice-and-comment rulemaking.

“[R]eliance interests in the Supreme Court’s law

of interpretation are intertwined with the legitimacy

of judicial review and statutory implementation.”

William N. Eskridge Jr., Reliance Interests in

Statutory and Constitutional Interpretation, 76 Vand.

L. Rev. 681, 683 (Apr. 2023). Reliance interests

provide justifications for doctrine and influence the

way such doctrine is applied.

Where an agency’s interpretation would impose

liability for conduct that occurred well before that

interpretation was announced, accepting an agency’s

interpretation “would seriously undermine the

principle that agencies should provide regulated

parties fair warning of the conduct a regulation

prohibits or requires.” Christopher v. SmithKline

Beecham Corp., 567 U.S. 142, 156 (2012) (internal

quotation marks and citations omitted); NLRB v. Bell

Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 295

(1974) (suggesting that an agency should not change

an interpretation in an adjudicative proceeding where

doing so would impose “new liability . . . on

19

individuals for past actions which were taken in goodfaith reliance on [agency] pronouncements” or in a

case involving “fines or damages”).

Courts have consistently held against agencies

that change their interpretation of long-standing

rules because of the unfair surprise it causes

regulated parties. Christopher, which concerned a

provision of the Fair Labor Standards Act (“FLSA”)

that required employers to pay employees overtime

wages unless the employee was employed as an

exempt employee or “outside salesman,” is a prime

example. For decades, the pharmaceutical industry

treated pharmaceutical sales representatives as

outside salesmen. See 567 U.S. at 158-59. But in 2009,

DOL decided—without providing opportunity for

public

comment—that

under

the

FLSA,

pharmaceutical sales representatives did not qualify

as outside salesman, and therefore they were not

exempt

from

FLSA’s

overtime-compensation

requirement. Id. at 159. As a result, pharmaceutical

sales representatives would be entitled to overtime

pay per this new interpretation. This Court disagreed,

finding that these sales representatives were exempt,

thus the employers should not be required to pay

overtime wages. As the Court explained, “[t]here are

now approximately 90,000 pharmaceutical sales

representatives; the nature of their work has not

materially changed for decades and is well known;

these employees are well paid; and like quintessential

outside salesmen, they do not punch a clock and often

work more than 40 hours per week.” Id. at 158. And

“[o]ther than acquiescence, no explanation for the

DOL's inaction is plausible.” Id. “[W]here . . . an

agency’s announcement of its interpretation is

preceded by a very lengthy period of conspicuous

20

inaction, the potential for unfair surprise is acute.” Id.

(emphasis added).

The same principle was at play in Alabama

Association of Realtors v. Department of Health &

Human Services, 594 U.S. 758 (2021). There, the CDC

issued a 120-day eviction moratorium for property

owners, which the CDC extended several times

during the COVID-19 pandemic, that put associations

of real-estate agents, rental-property managers, and

millions of landlords across the country “at risk of

irreparable harm by depriving them of rent payments

with no guarantee of eventual recovery” for months.

Id. at 765. The Court held that the CDC did not have

the authority to impose the eviction moratorium

because Congress had not given the agency the

authority to do so. Id. at 764. Notably, the Court

emphasized that landlords’ reliance on rent payments

essentially outweighed the government’s attempt to

alleviate burdens caused by COVID-19. See id. at 76566 (finding that as harm to the landlords increased

because of the moratorium, the government’s

interests decreased); see also Loper Bright Enters. v.

Raimondo, 603 U.S. 369, 410 (2024) (finding that

“[r]ather than safeguarding reliance interests,

Chevron[, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.]

affirmatively destroys them” by allowing agencies to

change course even when Congress has given them no

power to do so).

DOL’s Bulletin changed the agency’s insurance

practices in 2015, but Arch sold Apogee and its blacklung liabilities in 2005. Thus, for ten years, Arch and

Apogee relied on traditional insurance law and DOL

policy here, which did not require self-insurers to be

liable for their former subsidiaries. The fact that the

21

DOL changed its policy a decade later, and in effect,

turned Arch’s self-insurance contract into a

commercial-insurance contract, is the kind of unfair

surprise that Christopher warned against. See 567

U.S. at 158 (“[W]here . . . an agency’s announcement

of its interpretation is preceded by a very lengthy

period of conspicuous inaction, the potential for unfair

surprise is acute.”).

DOL’s Bulletin creates grave uncertainty for

operators and insurers alike. Like the landlords in

Alabama, where the uncertainty of receiving rent

payments continued for months, if the Sixth Circuit’s

decision stands, operators will face uncertainty

concerning what it means to obtain self-insurance

versus commercial insurance and whether they can

be perpetually liable for their former subsidiaries’

insurance obligations.

IV. The Sixth Circuit Split Creates

Inconsistencies for National Operators.

In addition to the circuit split identified by

Petitioners concerning the Chenery doctrine and its

impact on the Bulletin—with the Seventh Circuit

(Grimes) and Fourth Circuit (American Energy)

applying Chenery and the Sixth Circuit (Howard) not

doing so—the Sixth and Seventh Circuits at least are

now squarely split on the legality of DOL’s Bulletin.

This substantive split of authority creates even more

uncertainty for self-insurers and inconsistencies for

operators with national operations.

Companies like Arch have operations and

employees across the country, and they will now be

subject to the DOL’s new policy in states like

Kentucky (Sixth Circuit), but not in Illinois (Seventh

22

Circuit). In the long term, such a difference will

destroy the uniformity that Congress intended when

it enacted the BLBA and that federal courts seek to

have concerning national policy. Glen Coal Co. v.

Seals, 147 F.3d 502, 513 (6th Cir. 1998) (cautioning

against adopting different rules from one circuit to

another because it “destroy[s] the desired uniformity

of application of the Black Lung Benefits Act”); Nat’l

Mining Ass’n v. Dep’t of Lab., 292 F.3d 849, 865 (D.C.

Cir. 2002) (reiterating that inconsistencies across

circuit courts would run “afoul of the BLBA’s

statutory goal of uniformity”); see also Deborah Beim

& Kelly Raider, Legal Uniformity in American Courts,

J. of Empirical Legal Stud., vol. 16(3), 448-478, at 45051 (Sept. 2019) (“[C]ircuit splits . . . can make it

difficult for businesses to operate in multiple

jurisdictions, or to make contracts that are

enforceable nationwide” and, thus, “[p]art of the

reason the Supreme Court resolves intercircuit splits

is a preference for legal uniformity and a commitment

to unifying doctrine across the country. Uniformity in

the application of U.S. federal law by federal courts is

a value as old as Federalist 80.”).

23

CONCLUSION

The Court should grant the petition.

February 24, 2025

Respectfully submitted,

Daniel W. Wolff

Counsel of Record

Monty Cooper

Emily Werkmann

CROWELL & MORING LLP

1001 Pennsylvania

Avenue, NW

Washington, DC 20004

(202) 624-2621

dwolff@crowell.com

Counsel for Amicus

Curiae, National Mining

Association