Betty B Coal Co. v. Dir. Office of Workers Comp. Programs

• Decision Date: 11 June 1999
• Docket Number: No. 99-1057,No. 98-2731,98-2731,99-1057
• Citation: 194 F.3d 491
• Parties: (4th Cir. 1999) BETTY B COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; ART STANLEY, Respondents. BETTY B COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; ART STANLEY, Respondents. (87-2105-BLA). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 491

194 F.3d 491 (4th Cir. 1999)

BETTY B COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; ART STANLEY, Respondents.

BETTY B COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; ART STANLEY, Respondents.

No. 98-2731 No. 99-1057 (87-2105-BLA).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: June 11, 1999.

Decided: October 21, 1999.

On Petitions for Review of Orders of the Benefits Review Board.

[Copyrighted Material Omitted]

COUNSEL ARGUED: Mark Elliott Solomons, ARTER & HADDEN, L.L.P., Washington, D.C., for Petitioner. Elizabeth Hopkins, UNITED STATES DEPARTMENT OF LABOR, WASHINGTON, D.C., for Respondents. ON BRIEF: Laura Metcoff Klaus, ARTER & HADDEN, L.L.P., Washington, D.C., for Petitioner. Henry L. Solano, Solicitor of Labor, Allen H. Feldman, Associate Solicitor for Special

Appellate and Supreme Court Litigation, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents.

Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.

No. 98-2731 affirmed and No. 99-1057 dismissed by published opinion. Judge Michael wrote the opinion, in which Judge Luttig and Judge Motz joined.

OPINION

MICHAEL, Circuit Judge:

Betty B Coal Company filed petitions for review of two orders of the Department of Labor's Benefits Review Board (BRB), each of which resolved motions to reconsider the BRB's affirmance of an award of black lung benefits to Art Stanley, a now-deceased coal miner. We dismiss the second of the petitions for lack of jurisdiction. However, we do have jurisdiction over the first petition, and our review of that petition leads us to affirm the award of benefits. Our affirmance proceeds through several steps. First, we hold that the Department of Labor properly construed Stanley's second claim for benefits to be a request for modification made within the one-year time limit. As we will explain more fully, Stanley filed this second claim more than one year after his first claim was denied, but within one year after the denial of a first request for modification. We defer to a reasonable administrative interpretation of the governing statute to the effect that such a second claim is a timely modification request. Second, we conclude that the administrative proceedings through which Stanley was awarded benefits did not deprive Betty B of due process of law. Finally, we hold that the agency properly augmented Stanley's benefits to account for his adult son, who was disabled.

I.

The procedural history of this case is both lengthy and complex. We will describe this history in some detail because it, rather than the merits of the miner's claim, is the focus of the coal company's arguments.

Twenty years ago, on May 7, 1979, Art Stanley filed a claim for benefits under the Black Lung Benefits Act (the Act), 30 U.S.C. § 901 et seq. A Department of Labor claims examiner denied the claim on July 1, 1980. The form denial letter advised Stanley that within sixty days he could submit additional evidence or request a hearing before an administrative law judge. It also informed him that he could seek "reconsideration" of the denial within a year if he could show that his condition had changed or that "a mistake was made when [his] claim was denied." (In using the term "reconsideration," the letter was referring to the Act's modification procedure, which we discuss in part III.)

Stanley submitted additional evidence on September 16, 1980, outside of the sixty-day period. On October 3, 1980, the claims examiner reiterated the denial, "administratively clos[ed]" the case, and again advised Stanley that he could seek "reconsideration," that is, modification, for up to a year after "our initial finding." Stanley did not wait long; he requested modification on October 9, 1980. Within a week, on October 16, the claims examiner contacted Stanley's lawyer by telephone and advised him that the claim would remain denied.

Eleven months later, on September 16, 1981, Stanley filed a new claim, a claim that would be construed as a request for modification of the October 16, 1980, denial. As a result of this new filing, the claims examiner, on March 9, 1982, made an initial finding of eligibility and identified Betty B as the responsible operator. Betty B filed a controversion to the claim. The case then languished for nearly five years awaiting an evidentiary hearing. A hearing was finally held before an ALJ on January 7, 1987. On July 27, 1987, the ALJ denied benefits. In deciding the claim, the ALJ applied the permanent regulations at 20 C.F.R. Part 718.

Stanley appealed the ALJ's decision to the BRB. The Director of the Office of Workers' Compensation Programs filed a cross-appeal. The Director contended that the ALJ erred by analyzing the claim under the permanent regulations rather than under the interim regulations at 20 C.F.R. Part 727. On February 26, 1990, the BRB agreed with the Director and remanded the claim for reconsideration under the interim criteria. Eighteen months later, on October 29, 1991, the ALJ issued a new decision awarding benefits. Betty B appealed, and the case went before the BRB for a second time.

Stanley died of pneumonia on April 10, 1993.

On April 19, 1994, the BRB affirmed the award, but remanded for recalculation of the date of onset of disability. Just three months later, on July 29, 1994, the ALJ responded to the remand with an order setting September 1, 1981, as the date of onset. In addition, the ALJ corrected an oversight in his 1991 decision and augmented the benefits to account for Stanley's disabled adult son, Roy Dean Stanley. Thereafter, the procedural entanglement went from bad to worse. On July 28, 1994, a day before the ALJ's order on remand, Betty B had mailed its "Motion for Leave to File Employer's Brief on Remand and Establish Briefing Schedule." Though he had already rendered a decision, the ALJ granted Betty B's motion on August 4, 1994. Perhaps unsure of how to preserve its rights, Betty B appealed the ALJ's July 29, 1994, decision to the BRB. On December 6, 1994, the ALJ issued a "memorandum" noting that Betty B had not filed the brief permitted by his August 4, 1994, order, but concluding that because of Betty B's appeal to the BRB, he no longer had jurisdiction. The Director then filed a motion with the BRB asking it to clarify the status of the case. The BRB responded by cutting the knot: it construed Betty B's motion for leave to file a brief with the ALJ as a motion to reconsider the ALJ's July 29, 1994, decision, and it dismissed Betty B's appeal as premature. Betty B then filed its brief with the ALJ.

Because of the intervening retirement of the original ALJ, the case was reassigned to a different one, who on October 7, 1996, issued an order denying reconsideration. For the fourth time, the case was appealed to the BRB, and the BRB affirmed the award of benefits on October 23, 1997. Undaunted, Betty B filed a timely motion for reconsideration with the BRB. On September 30, 1998, the BRB issued an order granting Betty B's motion for reconsideration, but it rejected all of Betty B's assertions of error and reaffirmed its prior rulings in all respects. Betty B then filed a timely petition for review (No. 98-2731) of the September 30, 1998, order in this court and a second motion for reconsideration before the BRB. On December 18, 1998, the BRB summarily denied the second reconsideration request. That denial prompted Betty B to file another petition for review (No. 99-1057) in this court on January 13, 1999.

II.

Although none of the parties challenges our jurisdiction over the petitions for review, we believe that substantial questions of jurisdiction exist. As a consequence, we have a special obligation to satisfy ourselves, before deciding anything substantive, that we do have jurisdiction. Mitchell v. Maurer, 293 U.S. 237, 244 (1934).

We begin with No. 99-1057, the petition filed after the BRB summarily denied Betty B's second motion for reconsideration. Ordinarily, a petition for review of a final order of the BRB must be filed in the court of appeals within sixty days of the order. 33 U.S.C. § 921(c) (1994); 20 C.F.R. § 802.410(a). However, if a timely motion for reconsideration is filed with the BRB, the sixty-day period "will run from the issuance of the Board's decision on reconsideration." 20 C.F.R. § 802.406. The Sixth and Seventh Circuits have held that second and successive motions for reconsideration do not further toll the period for filing a petition for review. Midland Coal Co. v. Director, OWCP, 149 F.3d 558 (7th Cir. 1998); Peabody Coal Co. v. Abner, 118 F.3d 1106 (6th Cir. 1997). Hence, because No. 99-1057 was filed more than three months after the BRB's decision on the first motion for reconsideration, Midland Coal and Peabody Coal would call for its dismissal for want of jurisdiction.

We need not decide whether to follow the lead of the Sixth and Seventh Circuits today because No. 99-1057 has a more clear-cut jurisdictional defect. In that petition Betty B seeks "review of the order . . . issued December 18, 1998." The specified order did nothing more than summarily deny reconsideration, and that leads to the jurisdictional problem. "[W]here a party petitions an agency for reconsideration on the ground of `material error,' i.e., on the same record that was before the agency when it rendered its original decision, `an order which merely denies rehearing . . . is not itself reviewable.'" ICC v. Brotherhood of Locomotive Eng'rs, 482 U.S. 270, 280 (1987) (quoting Microwave Communications, Inc. v. FCC, 515 F.2d 385, 387 n.7 (D.C. Cir. 1974)). Because the petition in No. 99-1057 asks us to review an unreviewable order, we must dismiss that petition for lack of jurisdiction.

The other petition, No. 98-2731, was filed November 25, 1998, within sixty days of the BRB's decision on Betty B's first...