L.M. v. Peabody Coal Co.
| Decision Date | 30 December 2008 |
| Docket Number | BRB 08-0268 BLA,07-0994 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | L.M. (Widow of and on behalf of D.M.) Claimant-Respondent v. PEABODY COAL COMPANY and OLD REPUBLIC INSURANCE COMPANY Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decisions and Orders - Awarding Benefits and Attorney Fee Order of Donald W. Mosser, Administrative Law Judge United States Department of Labor, and the District Director's Proposed Orders - Supplemental Awards - Fees for Legal Services.
Paul (Rick) Rauch (Harrison Moberly), Indianapolis, Indiana, for claimant.
W William Prochot (Greenberg Traurig LLP), Washington, D.C for employer.
Jeffrey S. Goldberg (Gregory F. Jacob, Solicitor of Labor; Rae Ellen Frank James, Acting Associate Solicitor; Michael J. Rutledge, Counsel for Administrative Litigation and Legal Advice), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decisions and Orders (2005-BLA-00001 and 2005-BLA-05026) and Attorney Fee Order (2005-BLA-00001) of Administrative Law Judge Donald W. Mosser with respect to a miner's claim and a survivor's claim filed pursuant to the provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et seq. (the Act). [1] Employer also appeals from the district director's Proposed Orders awarding fees for services performed in conjunction with the miner's claim and the survivor's claim.
We will first address employer's request that it be dismissed as responsible operator in both claims due to improper ex parte contacts involving claimant's counsel and an official with the Department of Labor (DOL). We will then consider, in turn, employer's appeals of the awards of benefits in the miner's and survivor's claim, the award of attorney fees for work performed before the Office of Administrative Law Judges (OALJ), and the district director. Lastly, we will address the petition for an award of attorney fees for services performed before the Board.
Employer argues on appeal that it should be dismissed from liability for benefits and attorney fees in both the miner's claim and the survivor's claim based on improper ex parte communications involving claimant's counsel and a DOL official. [2] Employer has identified several instances in which it alleges that ex parte communications occurred that resulted in a violation of employer's right to due process. The first communication involved a letter in which claimant's counsel inquired about the status of the request for reconsideration of the Board's decision in Webber v. Peabody Coal Co. 23 BLR 1-123, 1-133 (2006), aff'd on recon., 24 BLR 1-1 (2007) (en banc), because the administrative law judge was holding the survivor's claim in abeyance until the Board issued its Decision and Order on Reconsideration. The second communication concerned the response counsel received from the official, who sent copies of counsel's letters and his response to the administrative law judge and employer. Counsel was advised that an inquiry had been made to the Benefits Review Board about the status of Webber, but that no specific information about the issuance of the Board's Decision and Order on Reconsideration was received. Employer notes that the Board issued its Decision and Order on Reconsideration in Webber “within days” of the phone call. Employer's Consolidated Brief at 13. The third alleged ex parte communication involved a phone conversation that was held with the administrative law judge regarding his decision to hold the survivor's claim in abeyance. Lastly, employer cites counsel's request that the official contact the district director regarding pending fee petitions and request that the petitions be ruled on before the issuance of a final decision on the merits. Employer notes that the district director subsequently issued orders concerning counsel's fee petitions in the miner's claim and the survivor's claim before final decisions were rendered.
Claimant and the Director, Office of Workers' Compensation Programs (the Director), have responded on this issue and urge the Board to reject employer's request to be dismissed. Upon review of the facts and the parties' arguments on appeal, we hold that dismissal of employer as responsible operator is not warranted in this case. Under the Administrative Procedure Act (APA), an ex parte communication is defined as “an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given.” 5 U.S.C. §551(14), as incorporated into the Act by 5 U.S.C. §554(c), 33 U.S.C. §919(d), 30 U.S.C. §932(a). The APA further provides, however, that “requests for status reports on any matter or proceeding covered by this subchapter, ” do not constitute ex parte communications. Under the terms of Section 557(d)(1), when a claim is being adjudicated:
5 U.S.C. §557(d)(1) (emphasis supplied).
Based upon the relevant statutory language, the communications between claimant's counsel and the DOL official regarding the Board's disposition of the request for reconsideration in Webber, do not fall within the APA's proscriptions against ex parte contacts. The communications did not concern the merits of the Board's proceedings, but rather principally concerned an inquiry regarding the status of Webber. See 5 U.S.C. §551(14); Electric Power Supply Assoc. v. FERC, 391 F.3d 1225, 1258 (D.C. Cir. 2004). In addition, the DOL official was not “involved in the decisional process” of the proceedings before the Board in Webber nor is there any evidence that he spoke to any person at the Board who could be so classified. See 5 U.S.C. §557(d)(1)(A), (B). Moreover, even assuming that these contacts constituted ex parte communications under the APA, copies of counsel's letter and the response were sent to the administrative law judge and employer's attorney, thereby providing employer with notice and an opportunity to respond. See 5 U.S.C. §557(d)(1)(C).
Regarding the communication with the administrative law judge, the administrative law judge merely noted that claimant had joined in the request to hold the survivor's claim in abeyance. Director's Response Brief at 6 n.4. Because the conversation did not touch upon the merits of the proceedings before the administrative law judge and principally concerned the status of the survivor's claim, it did not constitute a prohibited ex parte communication. See 5 U.S.C. §§551(14), 557(d)(1)(A), (B).
The final set of communications involves counsel's requests that the district director be contacted regarding fee petitions in the miner's claim. Because these requests concerned the status of the fee awards, and not their content, they were not impermissible ex parte communications under the APA. In addition, the district director's issuance of orders awarding attorney fees before the final disposition of either claim was in accordance with the regulation governing the consideration of attorney fee petitions, which provides that “[u]pon receipt of a request for approval of a fee, such request shall be reviewed and evaluated by the appropriate adjudication officer and a fee award issued.” 20 C.F.R. §725.366(d). Even assuming that employer is correct and the district director changed agency policy, there was no prejudice to employer, as the fee awards are not enforceable until there is a final award of benefits on the merits. See 20 C.F.R. §725.367(a); Coleman v. Ramey Coal Co., 18 BLR 1-9 (1993); Beasley v. Sahara Coal Co., 16 BLR 1-6 (1991).
Based upon the foregoing, we reject employer's request that it be dismissed from liability for any award of benefits or attorney fees in the miner's claim and the survivor's claim and we affirm the administrative law judge's denial of employer's request in the survivor's claim.
We will now turn to employer's appeal of the award of benefits in the miner's claim.
The miner filed a claim for benefits on February 22, 1993. Living Miner (LM) Director's Exhibit 1. Administrative Law Judge Rudolf L. Jansen denied benefits, finding that the miner established that he was totally disabled, but did not prove that he had pneumoconiosis or that he was disabled by pneumoconiosis. LM Director's Exhibit 52. The miner appealed to the Board, which vacated the denial of benefits and remanded the case to Judge Jansen for reconsideration. [D.M. ] v. Peabody Coal Co., BRB No 99-1141 BLA (Oct. 30, 2000) (unpub.). Judge Jansen awarded benefits on remand. Upon consideration of employer's appeal, the Board vacated the award of benefits and Judge Jansen's award of attorney fees and remanded the case for reconsideration. [3] [D.M. ] v. Peabody Coal Co., BRB No. 01-0731 BLA (July 26, 2002)...
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