4th Circuit Court of Appeals to Hear Arguments at Washington and Lee University School of Law

Lexington, VA Thursday, March 17, 2011

On Friday, March 25, the U.S. Court of Appeals for the 4th Circuit will hear a day of oral arguments at Washington and Lee University School of Law. Among the cases on the docket is a federal black lung benefits case from the School's Black Lung Legal Clinic.

Arguments will begin promptly at 9:30 a.m. (note updated time) in the Millhiser Moot Court Room, Sydney Lewis Hall. A panel of judges will hear three cases during the two-hour court session. Computers and backpacks are not allowed in the Moot Court Room during the Court's visit. Photography and recording devices are also prohibited. This event is open to the public. Seating is limited.

One of the cases the Court will hear is Sewell Coal v. Dempsey, in which the respondent, William O. Dempsey, is being represented by W&L's Black Lung Legal Clinic. The Clinic represents coal miners diagnosed with pneumoconiosis, also known as black lung disease, in their pursuit of benefits from the Department of Labor. The Clinic has represented about 200 clients since its creation in 1996.

The other cases to be argued are U.S. v. Bullard, involving a Fourth Amendment appeal of a warrantless search that led to charges of possession and intent to distribute cocaine, and Kowalski v. Berkeley County Public Schools, involving First and Fifth Amendment claims in a case where a high school student was suspended from school for creating a MySpace page that school officials believe led to harassment and intimidation of another student. The briefs for the cases are available online.

In the Dempsey case, Sewell Coal Company is appealing the award of benefits to Mr. Dempsey, who was a mine worker for 26 years, on the grounds that his application for benefits was not filed within the required three years of learning that his disability was to due to black lung disease. The company is also arguing, among other issues, that the administrative law judge erred in finding that Mr. Dempsey's pulmonary impairment was in fact due to coal worker's pneumoconiosis.

The Clinic has been handling Dempsey's case since 2001, navigating a series of decisions and reversals by the Office of the Administrative Law Judge and the DOL Benefits Review Board, the two bodies that determine whether federal black lung benefits should be awarded. The case also has come before the 4th Circuit during this period. In 2008, the Court remanded the case back to the administrative law judge for reconsideration on the timeliness issue.

John Eller, a third-year law student from Williamsburg, Va. will argue the case. In addition to working in the Clinic as a student attorney this year, Eller also worked there during the summer between his first and second year of law school.

W&L students in the Black Lung Clinic often have the opportunity to argue appellate cases. In 2009, students argued and won two cases in the 4th Circuit, and in January of this year, 3L Amanda Streff argued a case in front of the 3rd Circuit Court of Appeals in Philadelphia. The Court decided the case in favor of Streff's client in February. (Listen to Streff discuss the case with W&L Law professor Brian Murchison.)

Harkening back to the days when transportation challenges required judges to "ride circuit" from city to city, the 4th Circuit leaves its home Richmond several times each year to hear cases at law schools and other locations. The Court last visited W&L in February of 2007.

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