Nowlin v. Eastern Associated Coal Corp.

• Decision Date: 13 May 2003
• Docket Number: No. CIV.A. 1:02CV51.,CIV.A. 1:02CV51.
• Citation: 266 F.Supp.2d 502
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Gloria L. NOWLIN, Plaintiff, v. EASTERN ASSOCIATED COAL CORP., Defendant.

266 F.Supp.2d 502

Gloria L. NOWLIN, Plaintiff, v. EASTERN ASSOCIATED COAL CORP., Defendant.

No. CIV.A. 1:02CV51.

United States District Court, N.D. West Virginia.

May 13, 2003.

Robert F. Cohen, Jr. Cohen, Abate & Cohen, LC, Morgantown, WV, for Plaintiff Gloria L. Nowlin.

William S. Mattingly, Kathy L. Snyder, Jackson & Kelly PLLC, Morgantown, WV, for Defendant Eastern Associated Coal Corporation.

ORDER

KEELEY, District Judge.

Before the Court is the motion to dismiss of defendant Eastern Associated Coal Corporation. For the reasons that follow, the Court DENIES the defendant's motion.

I. FACTUAL BACKGROUND

On January 6, 1976, Malcolm Nowlin, a retired coal miner and former employee of defendant Eastern Associated Coal Corporation ("Eastern"), filed a claim for benefits under the Black Lung Benefits Act (the "BLBA"), 30 U.S.C. §§ 901-945. Mr. Nowlin was initially awarded benefits on May 1, 1980. Eastern appealed the award but, before the case was heard, Mr. Nowlin died on March 17, 1981. Following his death, on April 10, 1981, his widow, Gloria Nowlin ("Nowlin"), filed an application for black lung survivor's benefits. For the next twenty years, Nowlin's claim proceeded through a protracted series of appeals to the United States Department of Lab Benefits Review Board ("BRB"), and remands to Department of Labor administrative law judges ("ALJs").¹

Finally, on May 14, 1999, on a fourth remand, the ALJ awarded Nowlin benefits retroactive to January 1, 1976, the date Malcolm Nowlin first filed his claim. Eastern appealed that decision to the BRB, which affirmed the ALJ's award of benefits on June 22, 2000. Neither party filed an appeal or request for reconsideration. Thus, the BRB's June 22, 2000 order became final, and Eastern began paying benefits to Nowlin, in December, 2000.²

On April 1, 2002, Nowlin filed the instant action seeking to recover an additional twenty percent (20%) of the amount of benefits Eastern refused to pay her during the pendency of her claim. The 20% penalty assessment arises automatically under 33 U.S.C. § 914(f) when an employer is untimely in its payment of benefits awarded by an ALJ. 33 U.S.C. § 914(f). Section 914(f) does not, however, provide a means to enforce the penalty award and, consequently, Nowlin brings this action under 33 U.S.C. § 921(d).

Eastern moved to dismiss Nowlin's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that (1) Nowlin's relief is barred by the applicable statute of limitations; (2) an action seeking to enforce a 20% penalty must be brought under § 914(f), rather than § 921(d); and (3) Nowlin cannot recover because she failed to first obtain a "supplementary order" declaring the amount of default from the Department of Labor's District Director.

After the parties had completed their briefing of the issues, the Court conducted a hearing and ordered the parties to ascertain the Department of Labor's interest in intervening, or in filing an amicus curiae brief regarding whether a successful black lung claimant is required to obtain a supplementary default order from the District Director before filing an action to enforce a penalty under § 921(d).

The Director, Office of Workers' Compensation Programs (the "Director"), United States Department of Labor, filed an amicus brief in this matter on February 14, 2003, in which he argued that Nowlin was not required to apply to the District Director for a supplementary default order. Eastern and Nowlin have both responded to the Director's brief and the matter is ripe for the Court's review. The issues this Court must decide, therefore, are three-fold: First, whether Nowlin's action is barred by the applicable statute of limitations; second, whether she can enforce a 20% penalty in an action brought under § 921(d); and, third, whether her recovery is barred because she did not first obtain a supplementary default order from the District Director.

For the reasons that follow, the Court holds that Nowlin's claim is not timebarred, she may proceed under § 921(d), and she was not required to first obtain a supplementary default order from the District Director.

II. STANDARD OF LAW

On a Rule 12(b)(6) motion to dismiss, a court must accept the factual allegations of the complaint as true and must view the complaint in the light most favorable to the plaintiff. GE Inv. Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th Cir.2001) (citation omitted). The court should not grant a motion to dismiss for failure to state a claim for relief unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Id. (citation omitted).

III.

THE STATUTORY SCHEME "The BLBA established a comprehensive scheme designed to compensate miners for medical problems and disabilities related to pneumoconiosis." Kinder v. Coleman & Yates Coal Co., 974 F.Supp. 868, 870 (W.D.Va.1997) (citing 30 U.S.C. §§ 901-945). The Director administers claims under the BLBA in accordance with the procedural provisions of the Longshore and Harbor Workers' Compensation Act (the "LHWCA"), 33 U.S.C. §§ 901-950. 30 U.S.C. § 932(a). An employer must begin payment within thirty days of an "effective" award of benefits, regardless of whether the employer chooses to appeal the award. 33 U.S.C. § 918(a). Under the Act, an award is effective when it is filed in the District Director's office. 33 U.S.C. § 921(a). An effective award then becomes "final" thirty days later, or after an aggrieved party has exhausted its appeals. Id.

"The LHWCA contains separate provisions for the enforcement of effective and final awards in the event of an employer's default." Kinder, 974 F.Supp. at 871. A claimant may enforce an "effective" award of benefits under 33 U.S.C. § 918(a) and a final award of benefits under 33 U.S.C. § 921(d).

Under § 918(a), if an employer fails to make a payment within thirty days of the date it is due, a claimsint may apply to the District Director for a "supplementary order" to declare the amount in default. 33 U.S.C. § 918(a). A claimant may then file this order with a district court and obtain a judgment for that amount. Id. The claimant has one year from the date of default to apply to the District Director for an order. Id.

In contrast to the provisions of § 918(a), § 921(d) does not require a claimant to first obtain a supplementary order from a District Director, nor does it contain an express statute of limitations. 33 U.S.C. § 921(d). Under § 921(d), a district court must enforce an award if it was "made and served in accordance with law," and an employer has failed to comply with it. Id.

"The LHWCA also seeks to encourage prompt payments by penalizing employers who delay in meeting their obligations." Kinder, 974 F.Supp. at 871. If an employer fails to pay an award within ten days of when it is due, § 914(f) imposes an automatic penalty of twenty percent (20%) on the underlying compensation award. 33 U.S.C. § 914(f). Section 914(f) does not, however, specifically provide for the issuance or enforcement of a penalty award.

Here, Nowlin's award of benefits became final on August 21, 2000 and Eastern began making payments to her in December, 2000. Because Eastern refused to pay Nowlin benefits during most of the time her claim was pending, she seeks to enforce the 20% penalty provided for by § 914(f) on the amount of those unpaid benefits. Because § 914(f) does not provide a mechanism to enforce a penalty assessment, however, she has brought this action under § 921(d).

IV. DISCUSSION

A.

Eastern first contends that Nowlin's claim is time-barred. The language of § 921 does not include a specific statute of limitations. Courts that have previously addressed this issue have found that a federal court should borrow the applicable state's general statute of hmitations. See Cassell v. Taylor, 243 F.2d 259 (D.C.Cir. 1957); Kinder, 974 F.Supp. at 878. The general statute of limitations period in West Virginia is the two-year period provided in West Virginia Code § 55-2-12. The parties agree that this two-year period applies to Nowlin's claim if it can be brought under § 921. The parties disagree, however, as to when the clock started ticking on the two-year limitation period.

Eastern claims that the statute of limitations began to run on May 14, 1999, the date of the final ALJ order awarding benefits to Nowlin. Nowlin contends that it began to run on the date the ALJ's decision became final, that is, when the BRB affirmed it on June 22, 2000.

An effective award becomes final thirty days after it is filed in the District Director's office, or after an aggrieved party has exhausted its appeals. 33 U.S.C. § 921(a). Here, Eastern chose not to appeal the BRB's June 22, 2000 affirmance of the ALJ's May 14, 1999 decision awarding benefits to Nowlin. Nowlin's award, therefore, became final on August 21, 2000—when the sixty day period for filing appeals expired. 33 U.S.C. § 921(c). Under West Virginia's two-year statute of limitations, therefore, Nowlin had until August 21, 2002 to bring an action under § 921(d) to enforce a 20% penalty assessment. Her complaint, therefore, was timely when filed in this Court on April 1, 2002.

B.

Eastern next contends that Nowlin's use of § 921, rather than § 918, to enforce a 20% penalty assessment is improper, and characterizes Nowlin's action as a "strained" interpretation of § 921. However, nothing in the plain language of § 921 prohibits a claimant from enforcing a 20% penalty under that section, and Eastern has not identified any case holding that such enforcement actions are prohibited.

Few reported cases have considered this precise issue. In Providence Washington Ins. Co. v. Director, OWCP, 765 F.2d 1381 (9th Cir.1985), the Ninth Circuit held that the BRB lacked jurisdiction to review supplemental orders assessing § 914(f) penalty awards. Id. at 1386. In reaching its conclusion, the court analyzed the...