E. Associated Coal Co. v. Director, No. 13-1553

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtPER CURIAM
Docket NumberNo. 13-1553
Decision Date03 July 2014

ROY M. VEST, Claimant.

No. 13-1553


Argued: May 14, 2014
Decided: July 3, 2014


On Petition for Review of an Order of the Benefits Review Board. (11-0871-BLA)

Before GREGORY and THACKER, Circuit Judges, and DAVIS, Senior Circuit Judge.

Petition denied by unpublished per curiam opinion.

ARGUED: Mark Elliott Solomons, GREENBERG TRAURIG, LLP, Washington, D.C., for Petitioner. Sarah Marie Hurley, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent. ON BRIEF: Laura Metcoff Klaus, GREENBERG TRAURIG LLP, Washington, D.C., for Petitioner. M. Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor, Gary K.

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Stearman, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

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Eastern Associated Coal Company ("Petitioner") petitions for review of the Benefits Review Board's ("BRB" or "Board") decision and order affirming the administrative law judge's ("ALJ") grant of living miner benefits to its former employee, Roy Michael Vest ("Claimant"),1 under the Black Lung Benefits Act ("BLBA"), 30 U.S.C. §§ 901-945. Petitioner argues that the benefits award must be vacated because 20 C.F.R. § 725.465(d), a regulation invoked by the Director of the Office of Workers' Compensation Programs ("Director") in the underlying proceedings, violates the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-559, 701-706. Petitioner also contends that a previously adjudicated and unsuccessful claim for survivor's benefits filed by Claimant's widow, Kimberly Vest McKinney ("Mrs. Vest"), operates to collaterally estop the benefits award in the instant case.

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As explained below, we disagree with Petitioner's argument on both fronts. First, we conclude that there is no conflict between the APA and 20 C.F.R. § 725.465(d). Second, we conclude that Claimant is not precluded from relitigating issues decided in his widow's claim because, as a non-party, he did not have a full and fair opportunity to litigate the issues decided in that proceeding. We therefore deny the petition for review.

Statutory Background

Congress enacted the BLBA and created the Black Lung Disability Trust Fund ("Trust Fund" or "Fund") in order to provide benefits to coal miners disabled by pneumoconiosis 2 and the surviving dependents of miners who died of the disease. See 30 U.S.C. § 901(a); 26 U.S.C. § 9501(d)(1). The Secretary of Labor ("Secretary") is vested with "broad authority to implement" this statutory mandate, Elm Grove Coal Co. v. Dir., OWCP, 480 F.3d 278, 293 (4th Cir. 2007), by promulgating "such regulations as [he] deems appropriate to carry out the provisions" of the BLBA, 30 U.S.C. § 936. The Director, as the

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Secretary's designee, is charged with administering the BLBA and is a party to all benefits adjudications. See 30 U.S.C. § 932(k); 20 C.F.R. § 725.482(b).

Both miners and their survivors may seek benefits under the BLBA by filing claims with the district director in the Department of Labor's ("DOL") Office of Workers' Compensation Programs ("OWCP"). See 20 C.F.R. §§ 725.301725.311. After investigating the claim, the district director determines whether the claimant is eligible for benefits and which of the miner's former employers, if any, will be held responsible. See id. §§ 725.401-725.423, 725.490-725.497. Any party may appeal the district director's determination to the Office of Administrative Law Judges and request a formal hearing before an ALJ. See id. §§ 725.450-725.483. A party who is "adversely affected or aggrieved" by the ALJ's subsequent decision may, in turn, appeal that decision to the BRB. Id. §§ 802.201(a), 725.481; see also 33 U.S.C. § 921(b)(3). Finally, "[a]ny person adversely affected or aggrieved by a final order of [the BRB]" may seek judicial review in the Court of Appeals for the circuit in which the injury occurred. 33 U.S.C. § 921(c); 20 C.F.R. § 725.482.

The Trust Fund, which is financed by an excise tax on coal production, is responsible for the payment of black lung benefits in certain circumstances, such as when "there is no

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operator who is liable" for a benefits award. See 26 U.S.C. §§ 9501(d), 4121. In cases implicating the Fund, the Director is "charged with a fiduciary duty to protect" the Fund's assets, Dir., OWCP v. Hileman, 897 F.2d 1277, 1281 n.2 (4th Cir. 1990), and operates as the Fund's "trustee," Boggs v. Falcon Coal Co., 17 Black Lung Rep. 1-62, 1-65 (Ben. Rev. Bd. 1992) (internal quotation marks omitted); see also 26 U.S.C. § 9501(a)(2) (the Secretary is a "trustee[] of the [Trust Fund]"). Otherwise, as the BRB has observed, "the Trust Fund would be completely unprotected." Boggs, 17 Black Lung Rep. at 1-65 (internal quotation marks omitted); see also Dir., OWCP v. Newport News Shipbuilding & Dry Dock Co., 676 F.2d 110, 114 (4th Cir. 1982) ("[O]nly the Director has any real interest in protecting the [Trust Fund] against unjustified payments.").

After a claim is filed, the Trust Fund is required to make interim payments to a claimant pending final resolution of his claim if the district director makes an "initial determination of eligibility" and the responsible operator "fails or refuses to commence . . . payment" within thirty days. 20 C.F.R. §§ 725.522, 725.420; see also 26 U.S.C. § 9501(d)(1). The Trust Fund is automatically subrogated to the rights of a claimant when it makes these payments, and the Director "may, as appropriate, exercise such subrogation rights." 20 C.F.R. §§ 725.602(b), 725.482(b). Upon final adjudication of the

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claim, the Director may seek reimbursement of the interim payments from the responsible operator, see 30 U.S.C. § 934(b), or, if the claim is denied, from the claimant himself for "overpayments," 20 C.F.R. § 725.522(b). The Director thus "has a direct financial interest in the outcome in cases . . . in which the Trust Fund has paid interim benefits." Boggs, 17 Black Lung Rep. at 1-66.

Procedural History

Claimant, a retired coal miner, filed an application for living miner's benefits on May 16, 2001. See 30 U.S.C. § 922(a)(1) (authorizing living miner's benefits for coal miners totally disabled due to pneumoconiosis).3 On December 31, 2002, the district director determined Claimant was eligible for benefits and named Petitioner, one of Claimant's former employers, the operator responsible for payment. Petitioner contested the district director's determination, refused to commence benefit payments, and requested a formal hearing before

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an ALJ. The Trust Fund, consequently, assumed responsibility for paying interim benefits to Claimant pending final adjudication of his claim. See 26 U.S.C. § 9501(d)(1). His claim was thus "in pay status from [the Trust Fund] as of February 1, 2001." J.A. 86.4

On January 12, 2005, ALJ Edward T. Miller ("ALJ Miller") conducted a formal hearing on Claimant's application. While awaiting a decision, Claimant died on May 8, 2006, at the age of 52. Two days later, ALJ Miller issued a decision and order awarding Claimant benefits and holding Petitioner liable as the responsible operator. Following Petitioner's appeal, the BRB affirmed in part, vacated in part, and remanded on May 23, 2007. The BRB reasoned, inter alia, that ALJ Miller had failed to provide an adequate foundation for his responsible operator determination and two of his evidentiary rulings, which tainted his ultimate conclusions as to Claimant's eligibility for benefits and Petitioner's liability for the same. The BRB remanded the case with instructions to reconsider the inadequate rulings and, concomitantly, reweigh the relevant evidence.

Following her husband's death, Mrs. Vest filed a separate claim for survivor's benefits on May 31, 2006. See 30

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U.S.C. § 922(a)(2) (providing for survivor's benefits "[i]n the case of death of a miner due to pneumoconiosis").5 On January 10, 2007, the district director determined that Mrs. Vest was ineligible for benefits, reasoning that Claimant's death was not caused by pneumoconiosis and, as such, would not support an award of survivor's benefits under the BLBA. Mrs. Vest contested this determination and requested a hearing before an ALJ. The following year, on May 6, 2008, Administrative Law Judge Jeffrey Tureck ("ALJ Tureck") conducted a formal hearing on her claim.

Meanwhile, Claimant's remanded claim for living miner's benefits remained largely dormant. After more than a year of inactivity, ALJ Miller issued an order on October 3, 2008, directing the parties to designate certain pieces of evidence in order to facilitate his final decision as to Claimant's claim. Claimant's counsel responded with a letter advising ALJ Miller that Claimant was deceased, he had no authority to act on behalf of Claimant's estate, and Claimant's widow had remarried and was no longer interested in pursuing his claim. Given this information, ALJ Miller issued a show cause

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order soliciting input "as to how, in [the parties'] respective...

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