Interlocutory Benefits Review Board Orders Merge into Final Orders and Become Reviewable Under the Black Lung Benefits Act

I. Introduction

Case: Dominion Coal Corporation v. DOWCP (4th Cir. Jan. 15, 2026).
Parties: Dominion Coal Corporation (employer/petitioner) vs. Director, Office of Workers’ Compensation Programs (federal respondent) and Darrell G. Meade (miner/claimant).
Context: Meade sought benefits under the Black Lung Benefits Act (BLBA) after decades of coal mine employment. The dispute centered on whether he established complicated pneumoconiosis, which triggers an irrebuttable presumption of total disability due to pneumoconiosis.

Procedural posture and key issues: An administrative law judge (ALJ) initially denied benefits; the Benefits Review Board (BRB) vacated in part and remanded for inadequate evaluation/explanation under the Administrative Procedure Act (APA). On remand the ALJ awarded benefits and the BRB affirmed. Dominion petitioned for review, arguing:

  • Jurisdictional/standard-of-review challenges to the BRB’s initial (interlocutory) remand order;
  • Merits challenges to the final award (including an argument premised on 20 C.F.R. § 718.102/ILO guidelines); and
  • A constitutional removal-protections attack on the ALJ’s authority (dual-layer tenure theory).

II. Summary of the Opinion

The Fourth Circuit denied the petition. It held that:

  • Jurisdiction: The court has jurisdiction to review BRB interlocutory orders after the BRB enters a final order, because intermediate agency rulings are reviewable upon review of final agency action and because such rulings “merge” into the final order.
  • BRB remand propriety: The BRB permissibly remanded where the ALJ failed to analyze and explain the competing CT-scan expert rationales as required by the APA; the BRB did not reweigh evidence or compel an outcome.
  • Final merits: Substantial evidence supported the ALJ’s crediting of Dr. DePonte over Dr. Adcock on CT evidence of complicated pneumoconiosis; Dominion’s key regulatory argument was treated as abandoned due to inadequate citation/support.
  • Constitutional claim: Under circuit precedent, vacatur is unavailable absent a showing that an unconstitutional removal restriction inflicted harm; Dominion alleged no such harm.

III. Analysis

A. Precedents Cited

1. BLBA framework and presumptions

  • Edd Potter Coal Co. v. DOWCP, 39 F.4th 202 (4th Cir. 2022): Quoted for the BLBA’s purpose and its eligibility/liability determination structure, framing the case as a benefits-eligibility dispute within a responsibility-to-pay system.
  • Island Creek Coal Co. v. Blankenship, 123 F.4th 684 (4th Cir. 2024): Cited for Congress’s creation of evidentiary presumptions given diagnostic difficulty, supporting the opinion’s emphasis on how presumptions operate and why careful evidentiary evaluation matters.
  • E. Associated Coal Corp. v. DOWCP, 220 F.3d 250 (4th Cir. 2000): Central to the “complicated pneumoconiosis” irrebuttable presumption (30 U.S.C. § 921(c)(3)) and the three-category pathways (x-ray, biopsy, or other equivalent diagnostic means such as CT evidence).
  • Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976): Used to describe complicated pneumoconiosis as “the incurable and final stage of the disease” and to situate pneumoconiosis diagnosis in radiographic opacity assessment, reinforcing why technical medical evidence is pivotal.

2. Standard of review, APA explanation duties, and evidentiary assessment

  • Extra Energy, Inc. v. Lawson, 140 F.4th 138 (4th Cir. 2025): Supplies the court’s formulation of “limited and highly deferential” review of factual findings and that the appellate court applies the same standard as the BRB.
  • Am. Energy, LLC v. DOWCP, 106 F.4th 319 (4th Cir. 2024): Cited for the de novo review of legal conclusions versus highly deferential factual review.
  • Milburn Colliery Co. v. Hicks, 138 F.3d 524 (4th Cir. 1998): Anchors the principle that substantial-evidence review requires assurance the ALJ analyzed all relevant evidence; also cited (via Addison) for the duty to explain why evidence is credited/discredited.
  • Sea "B" Mining Co. v. Addison, 831 F.3d 244 (4th Cir. 2016): Emphasizes that deference is not unlimited and that adequate explanation is a prerequisite to appellate review; used to justify the BRB’s remand when explanation was insufficient.

3. Appellate jurisdiction over interlocutory BRB orders (new, published Fourth Circuit rule)

  • Clark v. Cartledge, 829 F.3d 303 (4th Cir. 2016): Invoked for the court’s obligation to consider jurisdiction sua sponte.
  • W. Va. Coal Workers' Pneumoconiosis Fund v. Bell, 781 F. App'x 214 (4th Cir. 2019): Previously (unpublished) articulated two rationales for reviewing interlocutory BRB orders after final agency action—(i) 5 U.S.C. § 704 and (ii) “merger” principles analogous to 28 U.S.C. § 1291 final-judgment practice. The 2026 opinion adopts this approach in a published holding, converting a persuasive/unpublished practice into binding circuit precedent.
  • Samons v. Nat'l Mines Corp., 25 F.4th 455 (6th Cir. 2022): Used to show the near-consensus across circuits that interlocutory BRB orders can be reviewed upon issuance of a final order, bolstering the Fourth Circuit’s decision to align its doctrine with that consensus.

4. Briefing defaults/abandonment doctrine

  • Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir. 1999): Cited to apply the rule that failure to comply with Fed. R. App. P. 28(a)(8)(A) (citations to authorities relied on) triggers abandonment of that claim on appeal—used to dispose of Dominion’s regulatory/ILO-based argument as presented.

5. Forfeiture, removal protections, and remedy limits

  • United States v. Newby, 91 F.4th 196 (4th Cir. 2024): Applied to hold that because respondents did not argue forfeiture, they forfeited any forfeiture argument.
  • K & R Contractors v. Keene, 86 F.4th 135 (4th Cir. 2023): Directly controls the remedy for removal-protection challenges; vacatur requires a showing that the challenged removal provision inflicted harm.
  • Collins v. Yellen, 594 U.S. 220 (2021): The Supreme Court source for the “harm” requirement; the opinion reiterates examples (attempted removal blocked; stated desire to remove but inability due to protections).
  • McMellon v. United States, 387 F.3d 329 (4th Cir. 2004): Cited by Dominion to argue about non-binding dicta; the court rejects its relevance because there was no conflicting authority requiring a choice.
  • Dominion Coal Corp. v. Clark, No. 22-1858, 2024 WL 1905047 (4th Cir. May 1, 2024): Noted as the court’s recent rejection of Dominion’s same removal argument for the same reason (no harm shown), reinforcing doctrinal stability.

B. Legal Reasoning

1. Jurisdiction over interlocutory BRB orders after a final order

The BLBA provides for review of a “final order” (33 U.S.C. § 921(c), incorporated by 30 U.S.C. § 932(a)). Dominion’s petition necessarily implicated the BRB’s earlier remand order, which was not itself final when issued. The court nonetheless held it had jurisdiction to review that interlocutory order once the BRB entered a final order.

The court’s reasoning tracks two complementary doctrines:

  • APA reviewability of intermediate agency actions: 5 U.S.C. § 704 provides that preliminary/intermediate agency actions “not directly reviewable” are “subject to review” on review of the final agency action.
  • Merger principle: Analogizing to final-judgment appellate practice under 28 U.S.C. § 1291, interlocutory rulings “merge” into the final judgment and may be reviewed in an appeal from that final judgment.

The doctrinal move of note is institutional: the court elevates a previously unpublished Fourth Circuit approach (Bell) into a published holding, emphasizing cross-circuit convergence (including Samons).

2. Limits of deference: when the BRB may remand for inadequate evaluation/explanation

Dominion argued that because ALJs weigh evidence and make credibility determinations, the BRB was “conclusive[ly]” bound by the initial denial so long as it was not irrational or unlawful. The court rejected that framing as inconsistent with the APA-driven explanation requirement.

Building on Island Creek Coal Co. v. Blankenship, Milburn Colliery Co. v. Hicks, and Sea "B" Mining Co. v. Addison, the court clarified the operative boundary:

  • Deference applies to supported factual findings;
  • But deference is unavailable where the ALJ fails to consider relevant evidence, misweighs it, or fails to explain why evidence was credited/discredited; and
  • The BRB may remand for the ALJ to perform the required evaluation and explanation, without itself reweighing evidence or dictating an outcome.

That is precisely what occurred: the BRB found the first ALJ decision summarized CT reports but did not meaningfully address the experts’ rationales or explain the weighting. The BRB’s remand was framed as procedural (fix the evaluative/explanatory deficit), not substantive (reach a particular result), underscored by its express statement that the ALJ could reinstate denial.

3. Substantial evidence review of the final award; abandonment of an under-supported regulatory argument

On the final order, Dominion argued the ALJ’s reasoning about coalescence of smaller opacities conflicted with regulations/ILO guidelines and that the BRB failed to scrutinize the ALJ.

The court disposed of the core legal premise by applying Fed. R. App. P. 28(a)(8)(A) and Edwards v. City of Goldsboro: Dominion attributed specific language to 20 C.F.R. § 718.102 that does not appear there, and did not provide a reliable supporting citation. That failure triggered abandonment of the claim on appeal.

The court then explained why the attempted ILO-guidelines pivot did not salvage the argument: the cited ILO classification describes “small opacities” as “up to about 10 mm,” and the record discussion of a 20 mm coalescence did not establish that each component opacity was below the relevant threshold—particularly where Dominion’s expert did not measure each opacity. With the regulatory/legal objection defused, the remaining question was evidentiary: whether the ALJ permissibly credited Dr. DePonte’s CT interpretation over Dr. Adcock’s.

The court affirmed under the “highly deferential” substantial-evidence standard: the ALJ identified shortcomings in Dr. Adcock’s explanations and credited Dr. DePonte’s measurement-based account of coalescence forming a large opacity meeting the complicated pneumoconiosis definition. The BRB correctly treated that as within the ALJ’s factfinding role.

4. Removal protections challenge: remedy requires harm

Dominion’s separation-of-powers theory targeted “dual-layer tenure protections” (5 U.S.C. §§ 1202(d), 7521(a)) insulating ALJs from presidential control. The court did not reach the merits of the structural claim because, under binding circuit precedent, Dominion was not entitled to vacatur absent a showing that the removal restriction caused harm in its case.

Applying K & R Contractors v. Keene (grounded in Collins v. Yellen), the court reiterated that relief is available only where the challenged removal protections themselves inflicted harm—e.g., an attempted removal blocked or an expressed desire to remove thwarted by the statute. Dominion alleged no such facts, and the record contained none. The court also rejected Dominion’s attempt to characterize Keene as non-binding via McMellon v. United States, noting there was no conflicting authority and that Keene controlled.

C. Impact

  • Published jurisdictional clarity for BLBA litigation: By holding—expressly and in a published decision—that interlocutory BRB orders become reviewable upon issuance of a final order, the Fourth Circuit reduces uncertainty for litigants who wish to challenge remand rationales, procedural rulings, or other intermediate BRB determinations without needing a separate jurisdictional theory.
  • Reinforcement of APA explanation discipline: The decision underscores that “highly deferential” review does not tolerate unexplained weighing of competing medical rationales. This is likely to drive more detailed ALJ analyses of expert reasoning (not merely conclusions), especially where diagnostic categories (e.g., CT equivalency for complicated pneumoconiosis) are contested.
  • Briefing rigor as outcome-determinative: The abandonment holding illustrates that technical regulatory/medical-classification arguments must be anchored in accurate citations. In BLBA cases—where parties often rely on incorporated standards (e.g., ILO materials)—pinpoint citation and faithful quotation may decide whether a legal issue is reached at all.
  • Constrained remedies for structural constitutional claims: The court’s reliance on Keene/Collins continues to cabin removal-protection challenges in benefits adjudication: absent case-specific harm tied to removal, petitioners should expect denial of vacatur even if they raise serious structural arguments.

IV. Complex Concepts Simplified

  • “Complicated pneumoconiosis” and the “irrebuttable presumption”: If the miner proves complicated pneumoconiosis under statutory criteria, the law conclusively presumes total disability due to pneumoconiosis—there is no opportunity for the employer to rebut that causal conclusion once the condition is established under the rule.
  • “Other means” diagnosis: Even if x-rays do not show the required large opacity, a miner can prove an equivalent condition through other diagnostic tools (here, CT scans), so long as the findings are equivalent to the statutory criteria.
  • “Substantial evidence” review: This is not “best evidence” or “more likely than not” review by the appellate court. If a reasonable factfinder could reach the ALJ’s conclusion based on the record, the finding stands—so long as the ALJ considered relevant evidence and explained the reasoning.
  • APA explanation requirement: An ALJ must do more than summarize evidence and announce a result. The ALJ must explain why certain evidence was credited and other evidence discounted so a reviewing court can understand the path of reasoning.
  • “Interlocutory” vs. “final” BRB orders: A remand order is interlocutory (not final) because it sends the case back for more proceedings. This opinion holds that such intermediate rulings can be reviewed later, when the agency process ends with a final BRB order.
  • Removal-protections “harm” requirement: Even if a removal restriction is constitutionally problematic in the abstract, a party generally must show it made a concrete difference in their case (e.g., blocked a removal that would have changed who decided the matter) to obtain vacatur.

V. Conclusion

Dominion Coal Corporation v. DOWCP delivers three practical takeaways for BLBA adjudication in the Fourth Circuit: (1) interlocutory BRB orders are reviewable once a final BRB order issues (a now-published, binding rule); (2) the BRB properly remands when an ALJ fails to evaluate and explain competing expert rationales as required by the APA, without reweighing evidence; and (3) removal-protection challenges will not yield vacatur absent a showing of case-specific harm under K & R Contractors v. Keene and Collins v. Yellen. Together, these holdings strengthen procedural regularity (reasoned explanation) while narrowing disruptive post hoc challenges (jurisdictional and constitutional) unless they are concretely grounded and properly briefed.