Island Creek Coal Co. v. Holdman

• Decision Date: 11 December 1998
• Docket Number: No. 97-4065,97-4065
• Citation: 202 F.3d 873
• Parties: (6th Cir. 2000) Island Creek Coal Company, Petitioner, v. Arthur W. Holdman, (Deceased); Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 873

202 F.3d 873 (6th Cir. 2000)

Island Creek Coal Company, Petitioner, v. Arthur W. Holdman, (Deceased); Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 97-4065

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: December 11, 1998

Decided and Filed: January 27, 2000

On Petition for Review of an Order of the Benefits Review Board; No. 95-0578 BLA

Douglas A. Smoot, JACKSON & KELLY, Charleston, West Virginia, Martin E. Hall, Sannie L. Overly, Natalie Diane Brown, JACKSON & KELLY, Lexington, Kentucky, for Petitioner.

Thomas M. Rhoads, RHOADS & RHOADS, Madisonville, Kentucky, Patricia Nece, Rita Roppolo, U.S. DEPARTMENT OF LABOR, OFFICE OF THE SOLICITOR, Washington, D.C., for Respondents.

Before: BOGGS and MOORE, Circuit Judges; and DOWD,^* District Judge.

OPINION

BOGGS, Circuit Judge. In a case with a lengthy procedural history, Island Creek Coal Company appeals a decision of the Benefits Review Board of the United States Department of Labor. The decision required Island Creek to pay Black Lung benefits to a coal miner's widow. We reverse the decision of the Board and reinstate the 1994 order of the administrative law judge transferring responsibility for the payments to the Black Lung Disability Trust Fund.

I. Jurisdiction

A. Background to the Jurisdictional Dispute

In 1980, an Administrative Law Judge (ALJ) ordered Island Creek Coal Company to pay black lung benefits to Arthur Holdman. Island Creek moved for reconsideration and later appealed to the Benefits Review Board. For various reasons, discussed infra at 7-12, the Board did not rule definitively for 15 years. The Board issued its order on October 30, 1995. The Board mailed its order (not by certified mail) to Island Creek's counsel at an incorrect address, sending it to Charleston, West Virginia, rather than to Lexington, Kentucky. On August 2, 1996, Island Creek's counsel inquired about the status of the appeal. That day, either the Board or the Office of Workers' Compensation Programs (OWCP) faxed a copy of the October 30 order, which was received by Island Creek that day.¹ The final footnote of the Board's order read: "We note that employer may file a petition for modification [of the terms of an award] with the district director under the provisions of 20 C.F.R. § 725.310." On September 11, 1996, in a petition to OWCP for modification of the 1980 order, Island Creek's counsel cited some newly-discovered medical evidence as support for modification.

On September 23, 1996, Bobby Chaffins, a senior claims examiner with OWCP, responded, informing counsel that the Board told Chaffins that "the appropriate course of action is for you to file the appeal with the Board, not the District Director" (emphasis added). On September 27, counsel asked Chaffins for clarification, explaining that counsel wished to pursue a petition for modification with the Director, and not an appeal to the Sixth Circuit. Counsel stated his belief that the only appeal from an order by the Board was to the Sixth Circuit.

On November 7, 1996, Harry Skidmore, the OWCP District Director, responded via certified mail. Without citing authority or mentioning the final footnote in the Board's order, he claimed that, because the Board currently had the record in the Holdman case, the Board, and not OWCP, had jurisdiction over the motion for modification. Skidmore enclosed a copy of the October 30 order by the Board and stated that "this correspondence represents your official notice of the Board's decision. Absent an appeal being filed by your office within thirty (30) days from the date of this notice with either the Benefits Review Board or Circuit Court, the award will become final . . . ." (emphasis added).

On December 4, 1996, counsel mailed to the Board a motion for reconsideration. On August 21, 1997, the Board denied the motion for reconsideration. Within 60 days, on September 22, Island Creek petitioned this court for review of the Board's orders of October 30, 1995, and August 21, 1997. On December 17, 1997, the Director moved to dismiss the petition for lack of jurisdiction. The Director claimed that the time for action began to run when OWCP faxed the decision to Island Creek's counsel on August 2, 1996. After that date, the Director alleged, Island Creek had two options: file a motion with the Board for reconsideration of the October 1995 order, or petition this court for review. Island Creek did not move for reconsideration until December 4, 1996, and it did not petition for review until September 22, 1997. Thus, claimed the Director, this court lacked jurisdiction over the petition.

Island Creek responded to OWCP's motion by observing that the OWCP Director informed counsel on November 7, 1996, that his letter constituted "official notice," and that Island Creek had thirty days to file a motion for reconsideration with the Board. Within thirty days of the Director's letter (sent by certified mail), Island Creek filed with the Board its motion for reconsideration. Within 60 days of the Board's denial of the motion, Island Creek petitioned this court for review. Therefore, according to Island Creek, we have jurisdiction over this appeal.

B. Analysis of Jurisdictional Issue

20 C.F.R. § 802.410(a) provides that, "Within 60 days after a decision by the Board has been filed pursuant to § 802.403(b), any party adversely affected or aggrieved by such decision may file a petition for review with the appropriate U.S. Court of Appeals . . . ." 20 C.F.R. § 802.403(b) provides that, inter alia, "[t]he original of the decision shall be filed with the Clerk of the Board," and that "[a] copy of the Board's decision shall be sent by certified mail or otherwise presented to all parties to the appeal and the Director."

The parties agree that the Board sent Island Creek's copy of the 1995 order to the wrong address, and that, in 1995, Island Creek did not receive a copy of the Board's order. Once it somehow learned of the Board's decision,² Island Creek attempted to obtain a modification of the ALJ's order, but the OWCP informed Island Creek in a letter dated September 23, 1996 that the Board advised that "the appropriate course of action is for you to file the appeal with the Board, not the District Director." The November 7, 1996 certified mail letter from the OWCP to Island Creek included a copy of the Board's order and informed Island Creek that "this correspondence represents your official notice of the Board's decision," and that "[a]bsent an appeal being filed by your office within thirty (30) days from the date of this notice with either the Benefits Review Board or Circuit Court, the award will become final . . . ." This letter was consistent with the earlier advice by the Board, relayed by Chaffins in the September 23 letter, that no action could be taken on Island Creek's petition for modification. The Board has never denied this position.

After the Board and OWCP apparently unlawfully foreclosed Island Creek's attempt to obtain redress via a petition for modification (pursuant to 20 C.F.R. § 725.310, a procedure with attendant avenues for hearings and appeal in the event that a party is dissatisfied with the OWCP's resolution of the petition, see 20 C.F.R. § 725.419), Island Creek filed with the Board a motion for reconsideration on December 4, 1996 (within thirty days of the November 7 letter sent by certified mail). See 20 C.F.R. § 802.407(a) ("Any party-in-interest may, within 30 days from the filing of a decision or non-interlocutory order by a panel or the Board pursuant to § 802.403(b), request reconsideration of such decision by those members who rendered the decision.").

The Board treated the motion as timely and denied it on August 21, 1997. Within sixty days, on September 22, Island Creek petitioned this court for review of the Board's orders. "[A] petition for review under § 921(c) is timely if filed within sixty days of the Board's denial of a timely motion for reconsideration." Peabody Coal Co. v. Abner, 118 F.3d 1106, 1108 (6th Cir. 1997). In light of the timely motion for reconsideration, our jurisdiction stems from 33 U.S.C. § 921(c), which provides that, "Any person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred, by filing in such court within sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside." The Department of Labor has, by regulation, clarified the various avenues governing the measurement of the date of the start of the 60-day period, see, e.g., 20 C.F.R. § 802.406 ("If a timely request for reconsideration has been filed, the 60-day period for filing such petition for review [with a circuit court of appeals] will run from the issuance of the Board's decision on reconsideration."). In this case, the government similarly clarified that the letter it mailed on November 7, 1996 "represents [Island Creek's] official notice of the Board's decision" and that "[a]bsent an appeal being filed . . . within thirty days from the date of this notice . . ., the award will become final . . . ."

The crux of the jurisdictional question is what constitutes "issuance of such order" under the statute and regulation. The seemingly relevant regulation, § 802.407(a), does not use "issuance" but instead refers to "a decision by the Board [that] has been filed pursuant to § 802.403(b)," to start the thirty days for filing a request for reconsideration. The referenced § 802.403(b) makes two statements: "that the original of the decision shall be filed with the clerk of the Board," and that "a copy . . . shall be sent by certified mail or otherwise presented" to all parties. A very literal interpretation would mean that giving the decision to the clerk is sufficient to start the time period, and...