North American Coal Corp. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Citation: 854 F.2d 386
• Decision Date: 18 August 1988
• Docket Number: No. 86-2424,86-2424
• Parties: NORTH AMERICAN COAL CORPORATION, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and Rochino Ariotti, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 386

854 F.2d 386

NORTH AMERICAN COAL CORPORATION, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and Rochino Ariotti Respondents.

No. 86-2424.

United States Court of Appeals Tenth Circuit.

Aug. 18, 1988.

David J. Millstone (David J. Somrak and Donald A. Wall, of counsel, with him on the briefs), of Squire, Sanders & Dempsey, Cleveland, Ohio, for petitioner.

Sylvia T. Kaser (George R. Salem, Solicitor of Labor, Donald S. Shire, Associate Sol., J. Michael O'Neill, Counsel for Appellate Litigation; Thomas L. Holzman, Asst. Counsel for Appellate Litigation, with her on the brief), U.S. Dept. of Labor, for respondents.

Before MOORE, ANDERSON and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

North American Coal Corporation (North American) petitions this court for review of a decision of the Benefits Review Board filed July 31, 1986. The Benefits Review Board affirmed a decision of the Administrative Law Judge awarding medical benefits to the respondent, Rochino Ariotti, under part C of the Black Lung Act, 30 U.S.C. Secs. 901-945.

In 1971, Mr. Ariotti was awarded disability benefits under part B of the Act by the Social Security Administration. These benefits are not an issue. The parties have stipulated that Mr. Ariotti has complicated coal workers pneumoconiosis which arose out of his coal mine employment.

The Black Lung Benefits Reform Act of 1977 provided that claimants who had previously been allowed disability benefit under part B could now file an application for and also receive medical benefits under part C. The Act directed that all recipients of disability benefits under part B be notified of this opportunity and be given no less than six months after notification to file their claims for medical benefits under part C, 30 U.S.C. Sec. 924a.

On April 25, 1978, the Secretary of Labor published a proposed rule permitting eligible miners (part B beneficiaries) to file claims for medical benefits under part C within six months from mailing "unless the period was extended for good cause shown." On May 3 and 4, 1978, the Department of Labor sent the requisite notifications.

On August 15, 1978, the final rules were published in the Federal Register. Both the proposed rule and the final rule provided for a "cut-off" date of six months from notification in which to file a claim for part C benefits. During the initial six month period following notification, while it was receiving comments on the proposed rules, the Department of Labor learned that many thousands of eligible miners were not filing for medical benefits because they mistakenly believed that an adverse decision with respect to medical benefits might also result in a termination of their monthly disability benefits under part B.

Consequently, on October 27, 1978, approximately one week prior to the expiration date as specified in the proposed and final rules, the Secretary of Labor promulgated an amended rule which extended the filing deadline from November 3-4, 1978, to June 30, 1979. This amended rule was published in the Federal Register and was published without notice and without an opportunity for public comment. 43 Fed.Reg. 50171 (1978). The amended rule was made effective as of the date of publication. Included with the amended rule in the publication was the following supplemental information:

The Department ... notified all part B miner-beneficiaries of their right to file claims for part C medical benefits on May 3 and 4, 1978. The Department of Labor has been advised that many part B miner-beneficiaries have failed to file claims ... because they believe that an adverse decision on their claim [sic] for medical benefits may result in a termination of the right to continuing compensation ... under part B. Although ... continued entitlement to such benefits cannot and will not be affected ... experience to date, as well as the review of materials circulated prior to August 18, 1978 ... indicates that a misunderstanding does exist among the claimant population. To insure that no ... eligible miner is deprived of the right to seek medical benefits, I find that it is in the public interest to amend the provisions ... to provide that claims for medical benefits ... may be filed up to and including June 30, 1979. I further find that since the current 6-month period will expire on or about November 3, 1978, the notice and public procedure on this amendment to the rules are contrary to the public interest.

Id. at 50172. Mr. Ariotti filed his claim on June 25, 1979.

While not an issue before this Court, the Department of Labor, in the continuing and well founded belief that many thousands of eligible miners were still failing to file, based upon a misunderstanding of the new law, subsequently extended the filing deadline at least three times.

North American petitioned this court for review, contending that the amendment to the rule extending the filing deadline to June 30, 1979, is invalid as this extension was adopted without advance public notice or opportunity for public comment as required by Sec. 4 of the Administrative Procedure Act (APA), 5 U.S.C. Sec. 553. North American also contends that as the thirty-day publication prior to the effective date was not met, the rule is invalid.

The question of whether the Secretary of Labor promulgated the rule in accordance with the APA is a question of law which we review de novo. Carozza v. United States Steel Corp., 727 F.2d 74, 76-77 (3d Cir.1984).

The APA is applicable to Department of Labor rule making under the Black Lung Benefits Act. 30 U.S.C. Sec. 936(a). There can be no doubt the extension of the filing deadline is a "rule" within the definition set forth in the APA, 5 U.S.C. Sec. 551(4).

Section 553 of the APA prescribes essentially three requirements for the rule making process: (1) advanced publication of the proposed rule or its substance in the Federal Register; (2) opportunity for public participation in the rule making process; and (3) publication of the final rule, including a concise statement of its basis and purpose thirty days before its effective date. 5 U.S.C. Sec. 553(b)-(d). The APA further...