Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor v. Bivens, Nos. 83-3802

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore KENNEDY, CONTIE and MILBURN; CONTIE
PartiesDIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. Opal BIVENS, George Hill, Respondents.
Docket Number84-3071,Nos. 83-3802
Decision Date25 March 1985

Page 781

757 F.2d 781
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, Petitioner,
v.
Opal BIVENS, George Hill, Respondents.
Nos. 83-3802, 84-3071.
United States Court of Appeals,
Sixth Circuit.
Argued Jan. 23, 1985.
Decided March 25, 1985.

Page 782

J. Michael O'Neill, Jeffrey J. Bernstein (argued), U.S. Dept. of Labor, Washington, D.C., for petitioner.

Joseph H. Kelley (argued), Leland Monhollon, P.S.C., Madisonville, Ky., Benefits Review Bd., Washington, D.C., for respondent in No. 83-3802.

Benefits Review Bd., Washington, D.C., J. Miles Gibson, Barkan & Neff, L.P.A., Sanford Meizlish (argued), Columbus, Ohio, for respondent in No. 84-3071.

Before KENNEDY, CONTIE and MILBURN, Circuit Judges.

CONTIE, Circuit Judge.

In these two consolidated cases the Director of the Office of Workers' Compensation Programs petitions for review of a decision of the Benefits Review Board. The Director argues that the Board improperly assessed attorneys' fees against the Black Lung Disability Trust Fund. We agree.

I.

In case number 84-3071 the claimant, George Hill, filed for black lung benefits on May 15, 1979. Hill retained counsel to assist in the prosecution of the claim on June 4, 1979. The Office of Workers' Compensation Programs scheduled a medical examination of Hill, which was conducted on August 1, 1979. On November 15, 1979 a deputy commissioner issued an award of benefits. The award was assessed against the Trust Fund because Hill had not worked in a coal mine after December 31, 1969.

In case number 83-3802 the claimant, Opal Bivens, filed a claim as a widow of a deceased coal miner on November 19, 1979. She retained counsel on October 7, 1980. Bivens submitted evidence of her late husband's coal mine employment on November 19 and December 9, 1980. On March 16, 1981 a deputy commissioner issued an award of benefits. Since Bivens' deceased husband had not worked in a coal mine after December 31, 1969, the award ran against the Trust Fund.

In each case the claimant's attorney petitioned for an award of fees. The deputy commissioner in each case granted the request, but assessed liability for the fee against the award of benefits. 1 Both Hill and Bivens appealed to the Benefits Review Board. The Board held, pursuant to Yokley v. Director, Office of Workers' Compensation Programs, 3 Black Lung Rep. 1-230 (1981), that the Trust Fund is liable for the fees. The Director petitions for review of these judgments.

II.

To understand this case requires some familiarity with the Black Lung Benefits Act, 30 U.S.C. Sec. 901 et seq. In 1969, Congress enacted the Federal Coal Mine Health and Safety Act. See Pub.L. No. 91-173, 83 Stat. 742 (1969). Title IV of this Act, which provides benefits for miners disabled due to pneumoconiosis, has since

Page 783

become known as the Black Lung Benefits Act. See 30 U.S.C. Sec. 901(b) (short title). Title IV is, in turn, subdivided into three parts. Part A contains general provisions. See 30 U.S.C. Secs. 901-904. Part B, codified at 30 U.S.C. Secs. 921-925, governs claims filed on or before December 31, 1973. See 30 U.S.C. Secs. 923(a), 924(a)(1). The Secretary of Health and Human Services is responsible for both adjudicating these claims and paying benefits to eligible claimants. See 30 U.S.C. Secs. 902(c), 921(a). Part C, codified at 30 U.S.C. Secs. 931-945, governs claims filed on or after January 1, 1974. See 30 U.S.C. Secs. 931(a), 932(a). Part C is administered by the Secretary of Labor. See 30 U.S.C. Sec. 902(c).

The scheme of the 1969 Act was to provide a brief period of federal aid to miners under Part B and eventually to transfer responsibility for benefits to state workmen's compensation programs. Thus, under Part C, claims submitted after December 31, 1973 2 are to be "filed pursuant to the applicable State workmen's compensation law." See 30 U.S.C. Sec. 931(a). If no state workmen's compensation law provides adequate coverage, as determined by the Secretary of Labor, see 30 U.S.C. Sec. 931(b), then a miner may proceed under the provisions of Part C.

The 1969 Act in its original and current form imposes liability on coal mine operators for the payment of Part C benefits. See 30 U.S.C. Sec. 932(b), (c). To accomplish this, Congress incorporated by reference certain provisions of the Longshoremen and Harbor Workers Compensation Act (hereinafter, L.H.W.C.A.), see 30 U.S.C. Sec. 932(a), which imposes liability on employers for injuries arising out of stevedoring employment. Until 1978, the Secretary of Labor assumed responsibility, out of funds appropriated from general revenues by Congress, for paying benefits when the responsible coal mine operator either could not be identified or failed to pay benefits. See Federal Coal Mine Health and Safety Act of 1969, Pub.L. No. 91-173, Sec. 424, 83 Stat. 742, 798 (1969) (formerly codified at 30 U.S.C. Sec. 934). With the Black Lung Benefits Revenue Act of 1977, Pub.L. No. 95-227, 92 Stat. 11 (1978), Congress acted to end all federal financial responsibility for disabled miners' benefits under Part C. It accomplished this by establishing the Black Lung Disability Trust Fund. Congress imposed a sales tax on coal sold by producers and placed the money generated thereby into the Trust Fund. See 26 U.S.C. Sec. 4121 (imposing tax); 26 U.S.C. Sec. 9501(b) (appropriating revenues to Trust Fund). The Trust Fund then pays Part C benefits where there is no operator liable for the benefits or where an operator who is liable refuses to pay. See 26 U.S.C. Sec. 9501(d). Since the Black Lung Benefits Act provides that an operator is not responsible for benefits where the miner did not work in the operator's mine after December 31, 1969, see 30 U.S.C. Sec. 932(c), there will necessarily be no liable operator for a miner whose last mine work occurred before 1970. Accordingly, 26 U.S.C. Sec. 9501(d)(1)(B) provides for the payment of such benefits 3 and 26 U.S.C. Sec. 9501(d)(2) provides that the Trust Fund is to assume any obligations the Secretary had incurred as to such benefits prior to the creation of the Trust Fund. 4 Since Hill and Bivens' late husband did not work in a mine after December 31, 1969, the Trust Fund is liable for benefits in these two cases.

Page 784

As noted above, the Black Lung Benefits Act incorporates certain provisions of the L.H.W.C.A. In 1972, Congress amended the L.H.W.C.A. by adding a provision allowing claimants in certain cases to recover attorneys' fees from their employer or their employer's insurance carrier. This provision is among those sections of the L.H.W.C.A. incorporated by 30 U.S.C. Sec. 932(a). It provides:

If the employer or carrier declines to pay any compensation on or before the thirtieth day after receiving written notice of a claim for compensation having been filed from the deputy commissioner, on the ground that there is no liability for compensation within the provisions of this chapter and the person seeking benefits shall thereafter have utilized the services of an attorney at law in the successful prosecution of his claim, there shall be awarded, in addition to the award of compensation, in a compensation order, a reasonable attorney's fee against the employer or carrier in an amount approved by the deputy commissioner, Board, or court, as the case may be, which shall be paid directly by the employer or carrier to the attorney for the claimant in a lump sum after the compensation order becomes final.

See 33 U.S.C. Sec. 928(a). 5 In the same year that Congress created the Trust Fund, it also amended other provisions of the Black Lung Benefits Act. With the Black Lung Benefits Reform Act of 1977, Congress added to 30 U.S.C. Sec. 932(a) the following italicized language:

During any period after December 31, 1973, in which a State workmen's compensation law is not included on the list published by the Secretary under section 931(b) of this title, the provisions of sections 901 to 921 and 922 to 950 of title 33 (other than the provisions contained in sections 901, 902, 903, 904, 908, 909, 910, 912, 913, 929, 930, 931, 932, 933, 937, 938, 941, 943, 944, 945, 946, 947, 948, 948a, 949, and 950 thereof), shall (except as otherwise provided in this subsection or by regulations of the Secretary and except that references in such sections 901 to 921 and 922 to 950 of title 33 to the employer shall be considered to refer to the trustees of the fund, as the Secretary considers appropriate and as is consistent with the provisions of section 9501(d) of title 26 ), be applicable to each operator of a coal mine in such State with respect to death or total disability due to pneumoconiosis arising out of employment in such mine, or with respect to entitlements established in paragraph (5) of section 921(c) of this title. In administering this part, the Secretary is authorized to prescribe in the Federal Register such additional provisions, not inconsistent with those specifically excluded by this subsection, as he deems necessary to provide for the payment of benefits by such operator to persons entitled thereto as provided in this part and thereafter those provisions shall be applicable to such operator.

See Pub.L. No. 95-239, Sec. 7(a)(3), 92 Stat. 95, 98 (1978), as amended by Black Lung Benefits Revenue Act of 1981, Pub.L. No. 97-119, Sec. 104(b)(3), 95 Stat. 1635, 1639 (1981) (codified at 30 U.S.C. Sec. 932(a)).

Soon after the 1978 amendments, litigants realized that it is possible to read 30 U.S.C. Sec. 932(a) together with 33 U.S.C. Sec. 928(a) to require the Trust Fund to pay attorneys' fees in the same manner that an employer is liable for attorneys' fees under the L.H.W.C.A. A series of cases held that this reading is not only possible, but that it is correct. See Director, Office of Workers' Compensation Programs v. Black Diamond Coal Mining Co., 598 F.2d 945 (5th Cir.1979); Director, Office of Workers' Compensation Programs v. Leckie Smokeless...

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  • National Min. Ass'n v. Chao, No. CIV. 00-3086(EGS).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 9, 2001
    ...Cir. 1987) (characterizing 30 U.S.C. §§ 932(a) and 936(a) as "a broad grant of rulemaking authority"); Dir., OWCP v. Bivens, 757 F.2d 781, 787 (6th Cir.1985) (legislative history shows Congressional intent to allow Secretary flexibility in administering black lung benefits program......
  • National Mining Association v. Chao, Civ. No. 00-3086 (EGS)
    • United States
    • U.S. District Court — District of Columbia
    • January 1, 2001
    ...Cir. 1987) (characterizing 30 U.S.C. §§ 932(a) and 936(a) as "a broad grant of rulemaking authority"); Dir., OWCP v. Bivens, 757 F.2d 781, 787 (6th Cir. 1985) (legislative history shows Congressional intent to allow Secretary flexibility in administering black lung benefits progra......
  • Childers v. Drummond Company, Inc., BRB 01-0585 BLA
    • United States
    • Court of Appeals of Black Lung Complaints
    • June 20, 2002
    ...the Fourth Circuit's holding in Harris, supra, and the United States Court of Appeals for the Sixth Circuit in Director, OWCP v. Bivens, 757 F.2d 781, 788, 7 BLR 2-166, 2-175 (6th Cir. 1985); see also Allen v. Director, OWCP, 9 BLR 1-38 (1986), the Board has interpreted the Act and Section ......
  • Kinder v. Coleman & Yates Coal Co., Civ. A. No. 95-167-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • September 2, 1997
    ...Part C claims if the responsible operator refused or no longer existed. See Director, Office of Workers' Compensation Programs v. Bivens, 757 F.2d 781, 783 (6th In enacting the Black Lung Benefits Revenue Act of 1977, Congress sought to shift the financial responsibility for the black lung ......
  • Request a trial to view additional results
20 cases
  • National Min. Ass'n v. Chao, No. CIV. 00-3086(EGS).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 9, 2001
    ...Cir. 1987) (characterizing 30 U.S.C. §§ 932(a) and 936(a) as "a broad grant of rulemaking authority"); Dir., OWCP v. Bivens, 757 F.2d 781, 787 (6th Cir.1985) (legislative history shows Congressional intent to allow Secretary flexibility in administering black lung benefits program......
  • National Mining Association v. Chao, Civ. No. 00-3086 (EGS)
    • United States
    • U.S. District Court — District of Columbia
    • January 1, 2001
    ...Cir. 1987) (characterizing 30 U.S.C. §§ 932(a) and 936(a) as "a broad grant of rulemaking authority"); Dir., OWCP v. Bivens, 757 F.2d 781, 787 (6th Cir. 1985) (legislative history shows Congressional intent to allow Secretary flexibility in administering black lung benefits progra......
  • Childers v. Drummond Company, Inc., BRB 01-0585 BLA
    • United States
    • Court of Appeals of Black Lung Complaints
    • June 20, 2002
    ...the Fourth Circuit's holding in Harris, supra, and the United States Court of Appeals for the Sixth Circuit in Director, OWCP v. Bivens, 757 F.2d 781, 788, 7 BLR 2-166, 2-175 (6th Cir. 1985); see also Allen v. Director, OWCP, 9 BLR 1-38 (1986), the Board has interpreted the Act and Section ......
  • Kinder v. Coleman & Yates Coal Co., Civ. A. No. 95-167-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • September 2, 1997
    ...Part C claims if the responsible operator refused or no longer existed. See Director, Office of Workers' Compensation Programs v. Bivens, 757 F.2d 781, 783 (6th In enacting the Black Lung Benefits Revenue Act of 1977, Congress sought to shift the financial responsibility for the black lung ......
  • Request a trial to view additional results

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