Big Horn Coal Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

Citation55 F.3d 545
Decision Date24 May 1995
Docket NumberNo. 93-9542,93-9542
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

John S. Lopatto III of Paulson, Nace, Norwind, and Sellinger, Washington, DC, for petitioner.

Helen H. Cox, U.S. Dept. of Labor, Office of the Sol., Washington, DC (Thomas S. Williamson, Jr., Sol.; Donald Shire, Associate Sol.; and Patricia M. Nece, U.S. Dept. of Labor, Washington, DC, with her on the brief), for respondent.

Martin J. Linnet of Wildeman & Linnet, Denver, CO, for real party in interest.

Before EBEL and SETH, Circuit Judges, and MECHEM, Senior District Judge. *

EBEL, Circuit Judge.

Petitioner Big Horn Coal Company ("Big Horn") seeks review of a decision by the Benefits Review Board ("BRB") of the United States Department of Labor ("DOL") holding Big Horn liable for the black lung benefits, past and present, paid to one of its former miners. Big Horn argues that the liability should instead rest with the Black Lung Benefits Trust Fund. The Director of the Office of Workers' Compensation Programs ("government" or "DOL") argues that the BRB lacked subject matter jurisdiction to consider Big Horn's appeal and that Big Horn waived the liability issue at an earlier proceeding. We find that BRB did have jurisdiction and that Big Horn waived its liability argument in the proceeding below. Thus, we affirm the BRB's judgment.


John Madia ("Madia"), a coal miner who mined between the 1930s and 1950s, filed an application for black lung benefits in 1975. An initial medical examination suggested that Madia was ineligible for benefits, but the Department of Labor ("DOL") did not actually deny his application. In 1978, Congress liberalized the eligibility rules for black lung benefits, and re-reviewed Madia's file. The DOL initially denied Madia's claim in 1979 based on the information it possessed, but reversed its position in the same year when it received an X-ray report showing pneumoconiosis, or black lung disease. Madia started drawing benefits from the Black Lung Disability Trust Fund, rather than his former employer, because employers were only made liable for post-1969 coal mine employment. 30 U.S.C. Sec. 932(c).

In 1982, despite his alleged disability, Madia informed the DOL that he had worked as a coal miner with Big Horn Coal in 1977-78. The DOL started modification proceedings to name Big Horn as the "responsible operator" and thereby shift liability from the Trust Fund to Big Horn. Big Horn initially disclaimed any liability and also alleged that Madia was not entitled to benefits. In addition, Big Horn claimed that the Trust Fund should pay any benefits to Madia because of a 1981 amendment to the Black Lung Benefits Act that "transferred" liability to the Trust Fund for cases that were "denied" before the 1978 liberalizing amendments. 30 U.S.C. Secs. 932(c)(2), (j)(3). Big Horn argued, and now continues to maintain, that Madia's claim was or should have been "denied" before the 1978 amendments.

The deputy commissioner of the DOL concluded that Madia was eligible for benefits, that Big Horn was the responsible operator, and that the claim did not qualify for a transfer. Big Horn challenged these findings and requested a hearing with an Administrative Law Judge ("ALJ"). At the hearing in 1984, Big Horn withdrew its contention that it was not a "responsible operator," and the ALJ considered only the issue of Madia's medical entitlement to benefits. The ALJ found that Madia was entitled to benefits.

Big Horn appealed the case to the BRB. The BRB determined that Big Horn had waived its argument contesting liability and the transfer issue at the hearing. However, it remanded the case for further proceedings on the eligibility issue.

At the second hearing, the ALJ again found that Madia was entitled to benefits. The ALJ sent copies of his order to the last known address of Big Horn's counsel by regular mail on August 30, 1988, even though the law requires service by certified mail. 33 U.S.C. Sec. 919(e); 20 C.F.R. Sec. 725.478 (1993). The post office returned the service because Big Horn's counsel had moved twice without informing the DOL. The appeals period of 30 days passed without Big Horn filing an appeal.

At some point, Big Horn's counsel must have acquired actual notice of the order because on January 9, 1989, Big Horn's counsel filed a request with the deputy commissioner for a modification of the ALJ's order due to the lack of correct service. In June 1991, the district director 1 issued a document which Big Horn timely filed a petition for review of the BRB's decision with this court. See 33 U.S.C. Sec. 921(c) (authorizing review of BRB decisions by the courts of appeals), as incorporated into the Black Lung Benefits Act by 30 U.S.C. Sec. 932(a). It challenges its liability based on the transfer theory and claims that the ALJ lacked subject matter jurisdiction to impose liability on an employer in a case that Big Horn claims should have been transferred to the trust fund. Big Horn does not contest Madia's eligibility for benefits on appeal.

purported to correct the service deficiency by sending the document by certified mail and claiming that the parties had 30 days from that point to file an appeal. In July 1991, within 30 days of the date of the district director's document, Big Horn filed a notice of appeal. On appeal to the BRB, no party questioned the BRB's jurisdiction. The BRB affirmed the ALJ's order and again denied Big Horn's transfer arguments on the ground that Big Horn had explicitly waived that claim. The BRB noted that on appeal Big Horn did not advance any arguments why waiver should not be applied against it, but rather simply tried to advance arguments on the merits of the transfer issue. Because the BRB held that Big Horn had waived that issue, it declined to consider Big Horn's arguments on the merits of the transfer issue.

The DOL contends that Big Horn failed to file a timely notice of appeal from the ALJ order to the BRB and that it waived its defenses to liability during the 1984 hearing. We address these issues first.


The Black Lung Benefits Act borrows its administrative framework from the Longshore and Harbor Workers Compensation Act ("LHWCA"). 30 U.S.C. Sec. 932(a). LHWCA requires parties desiring review of a compensation order to file for review within 30 days of the time that the order is "filed."

A compensation order shall become effective when filed in the office of the deputy commissioner as provided in section 919 of this title, and, unless proceedings for the suspension or setting aside of such order are instituted as provided in subdivision (b) of this section, shall become final at the expiration of the thirtieth day thereafter.

33 U.S.C. Sec. 921(a). To set aside a compensation order of an ALJ, parties must seek review from the BRB, an appellate body within the DOL:

A notice of appeal, other than a cross-appeal, must be filed within 30 days from the date upon which a decision or order has been filed in the Office of the Deputy Commissioner pursuant to section 19(e) of the LHWCA....

20 C.F.R. Sec. 802.205(a) (1993). Further, the BRB's regulations hold that "[f]ailure to file within the period specified ... shall foreclose all rights to review by the Board with respect to the case or matter in question. Any untimely appeal will be summarily dismissed by the Board for lack of jurisdiction." Id. at Sec. 802.205(c).

"The Supreme Court has instructed us that the preferred staring point in reviewing an administrative order is to satisfy ourselves that the agency whose order we are asked to review 'had jurisdiction over the matter in dispute.' " Harmar Coal Co. v. Director, Office of Workers' Compensation Programs, 926 F.2d 302, 307 (3d Cir.1991) (citing Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 473, 67 S.Ct. 801, 804, 91 L.Ed. 1028 (1947)). The 30-day filing requirement is jurisdictional. Blevins v. Director, Office of Workers' Compensation Programs, 683 F.2d 139, 141 (6th Cir.1982). Further, if the "Board lacked jurisdiction to decide [an] appeal, its decision on the merits ... cannot stand, and we must vacate its decision." Harmar, 926 F.2d at 308. See also Blevins, 683 F.2d at 143 ("[A] claimant who fails to appeal the order of an ALJ to the BRB within the allotted thirty-day period, depriving the BRB of an opportunity to consider an issue, is precluded from raising that issue on a petition for review in [the court of appeals].") (citing Atlantic & Gulf Stevedores Thus, our first step must be to determine if the BRB had jurisdiction conferred by a timely appeal by Big Horn. In this case, the key question for timeliness is when the 30-day period fixed by 33 U.S.C. Sec. 921 for taking an administrative appeal begins to run. We first look to the relevant statutes. As noted above, Sec. 921(a) provides that the 30-day appeal period starts when an ALJ's order is "filed in the office of the deputy commissioner as provided in section 919." Section 919(e), in turn, provides that the order "shall be filed in the office of the deputy commissioner, and a copy thereof shall be sent by registered mail or by certified mail to the claimant and to the employer at the last known address of each."

v. Director, Office of Workers' Compensation Programs, 542 F.2d 602, 605 (3d Cir.1976)). This reflects Congress' "strong interest in the prompt and final resolution of black lung compensation claims." Blevins, 683 F.2d at 143.

We believe that this statutory language plainly requires the service of an order by certified mail for the 30-day appeals limitation period to begin. Section 921's reference to Sec. 919 would be redundant if the 30-day period would start merely by physically filing the order with the office of the...

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