Combs v. Elkay Mining Co., CIVIL ACTION NO. 2:11-cv-00794

• Decision Date: 08 August 2012
• Docket Number: CIVIL ACTION NO. 2:11-cv-00794
• Court: U.S. Bankruptcy Court — Southern District of West Virginia
• Parties: SHELIA R. COMBS, et al., Plaintiffs, v. ELKAY MINING COMPANY, Defendant.

SHELIA R. COMBS, et al., Plaintiffs, v. ELKAY MINING COMPANY, Defendant.

CIVIL ACTION NO. 2:11-cv-00794

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

ENTER: August 8, 2012

MEMORANDUM OPINION AND ORDER

Pending before the court are Elkay Mining Company's Motion to Dismiss [Docket 7] and Elkay Mining Company's Motions for Leave to File Newly-Acquired Authority [Dockets 16 and 21]. For the reasons discussed below, the Motions for Leave to File Newly-Acquired Authority are GRANTED and the motion to dismiss is DENIED.

The issue before the court is well-defined: whether 20 C.F.R. § 725.601(b) requires a beneficiary who is entitled to 20 percent additional compensation and interest on a final award of benefits under the Black Lung Benefits Act to obtain a supplemental order awarding such relief from the District Director of the Office of Workers' Compensation Programs prior to enforcement in district court. I FIND that it does not; a beneficiary may enforce the 20 percent additional compensation and interest on a final award in district court under 33 U.S.C. §921(d) without a supplemental order.

I. Background

Joe Gollie worked for Elkay Mining Company ("Elkay") as a coal miner between 1980 and 1984. Mr. Gollie passed away in 1996, and his widow, Mildred F. Gollie, filed a survivor's application under the Black Lung Benefits Acts ("BLBA" or "Act") with the Department of Labor ("DOL"). The DOL made an initial finding that Ms. Gollie was entitled to survivor's benefits. In response Elkay requested a hearing before the Office of Administrative Law Judges. Administrative Law Judge ("ALJ") Daniel L. Leland issued a Decision and Order Awarding Benefits to Ms. Gollie, in addition to a supplemental award of attorney's fees. Ms. Gollie's claim then entered a series of protracted appeals to the Benefits Review Board and remands to the ALJ, eventually making its way to the Fourth Circuit Court of Appeals. In 2009, the Benefits Review Board affirmed the favorable decision of the ALJ and Elkay did not appeal. During most of the appeals process the Black Lung Disability Trust Fund paid the benefits to Ms. Gollie. In March 2010, Elkay reimbursed the Trust Fund. Ms. Gollie died on April 26, 2010, and Shelia R. Combs was appointed administratrix of Ms. Gollie's estate.

Ms. Combs, as administratrix of the estate of Ms. Gollie, along with Leonard J. Stayton and Leonard J. Stayton, P.S.C. filed the instant suit on October 25, 2011 pursuant to 33 U.S.C. § 921(d). They seek the following relief: (1) 20 percent additional compensation under 33 U.S.C. § 914(f); (2) interest on the additional compensation under 20 C.F.R. § 725.608(a)(3); (3) interest on the retroactive benefits under 20 C.F.R. §725.608(a)(1); and (4) attorney's fees, interest on unpaid attorney's fees, 20 percent additional compensation for failure to timely pay attorney's fees under 33 U.S.C. § 914(f), and interest on the 20 percent additional compensation.¹

On November 11, 2011, the defendant filed the instant motion to dismiss. Elkay does not dispute that the District Director issued an order finding it liable for Ms. Gollie's benefits or that the award has become final. In arguing for dismissal, the defendant asserts that before this court can award the requested relief, the plaintiffs must obtain an order by the District Director awarding the 20 percent additional compensation, interest on the 20 percent, and interest on the retroactive benefits.² The defendant also argues that the District Director is a necessary party under Rule 19.

II. Motion to Dismiss Standard

A motion to dismiss filled under Rule 12(b)(6) tests the legal sufficiency of a complaint or pleading. Giarranto v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8 requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8. As the Supreme Court reiterated in Ashcroft v. Iqbal, that standard "does not require 'detailed factual allegations' but 'it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.'" 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986) for the proposition that "on a motion to dismiss, courts 'are not bound to accept as true a legal conclusion couched as a factual allegation'"). A court cannot accept as true legal conclusions ina complaint that merely recite the elements of a cause of action supported by conclusory statements. Iqbal, 129 S. Ct. at 1949-50. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. at 1949 (quoting Twombly, 550 U.S. at 570). To achieve facial plausibility, the plaintiff must plead facts that allow the court to draw the reasonable inference that the defendant is liable, and those facts must be more than merely consistent with the defendant's liability to raise a claim from merely possible to probable. Id.

In determining whether a plausible claim exists, the court must undertake a context-specific inquiry, "[b]ut where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Id. at 1950 (quoting FED. R. CIV. P. 8(a)(2)). A complaint must contain enough facts to "nudge[] [a] claim across the line from conceivable to plausible." Twombly, 550 U.S. at 570.

III. Black Lung Benefits Act Statutory Framework

Congress enacted the Black Lung Benefits Act to provide benefits to coal miners or their surviving dependents for death or disability caused by pneumoconiosis arising out of work in coal mines. 30 U.S.C. § 901. The Act's complexity and lack of clarity derive in part from its incorporation of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), subject to enumerated exceptions. See 30 U.S.C. § 932(a). The Act also permits the Secretary of Labor to vary the LHWCA provisions by issuing regulations. 30 U.S.C. § 932(a); Dyer v. Cenex Harvest States Co-op, 563 F.3d 1044, 1048 (9th Cir. 2009); Old Ben Coal Co. v. Jones, 897 F.2d 900,902 (7th Cir. 1990) (explaining that "the Black Lung Act regulations . . . supplement and, where inconsistent, supplant sections adopted from the Longshore Act.").

Claims under the BLBA are processed by the Secretary of Labor. Kinder v. Coleman & Yates Coal Co., 974 F. Supp. 868, 870 (W.D. Va. 1997). If the outcome is adverse to either party, that party may request that the District Director order an ALJ to conduct a hearing. Id. at 871. If the ALJ enters an award, the employer must pay within thirty days of the award's "effective" date, "regardless of whether the employer chooses to appeal the award." Id. An award is effective when it is filed in the office of the District Director. Id. "An effective award becomes 'final' after thirty days, if the employer fails to appeal, or after the employer has exhausted its appeals." Id. The DOL administers the Black Lung Disability Trust Fund. The Trust Fund pays benefits when there is no operator who is liable for the payment of benefits or the operator defaults on its obligation to pay. 26 U.S.C. § 9501(d)(1).

There are separate statutory provisions for enforcing effective awards and enforcing final awards. 33 U.S.C. § 918(a) controls the enforcement of effective awards. It states in part:

In case of default by the employer in the payment of compensation due under any award of compensation for a period of thirty days after the compensation is due and payable, the person to whom such compensation is payable may, within one year after such default, make application to the deputy commissioner making the compensation order or a supplementary order declaring the amount of the default. . . . The applicant may file a certified copy of such supplementary order with the clerk of the Federal district court for the judicial district in which the employer has his principal place of business or maintains an office, or for the judicial district in which the injury occurred. . . . Such supplementary order of the deputy commissioner shall be final, and the court shall, upon the filing of the copy, enter judgment for the amount declared in default by the supplementary order if such supplementary order is in accordance with law.

To enforce an effective award in district court, the above statute requires that the beneficiary first obtain a supplementary order from the District Director.³ 33 U.S.C. § 918(a). A beneficiary can enforce a final award under 33 U.S.C. § 921(d), which provides that:

If any employer or his officers or agents fails to comply with a compensation order making an award, that has become final, any beneficiary of such award or the deputy commissioner making the order, may apply for the enforcement of the order to the Federal district court for the judicial district in which the injury occurred. . . . If the court determines that the order was made and served in accordance with law, and that such employer or his officers or agents have failed to comply therewith, the court shall enforce obedience to the order by writ of injunction or by other proper process, mandatory or otherwise, to enjoin upon such person and his officers and agents compliance with the order.

33 U.S.C. § 921(d). This section allows either the beneficiary or the District Director to bring an enforcement action in district court. Id. It also does not expressly require a beneficiary to obtain a supplementary order from the District Director, and it does not contain an express statute...