Midland Coal Co. v. Director, Office of Workers' Compensation Programs, No. 97-1166

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before CUMMINGS, MANION, and EVANS; MANION
• Citation: 149 F.3d 558
• Parties: MIDLAND COAL COMPANY and Old Republic Insurance Company, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Respondent.
• Docket Number: No. 97-1166
• Decision Date: 31 August 1998

Page 558

149 F.3d 558 MIDLAND COAL COMPANY and Old Republic Insurance Company, Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Respondent. No. 97-1166. United States Court of Appeals,
Seventh Circuit. Argued Feb. 27, 1998.
Decided July 1, 1998.
Rehearing and Suggestion for Rehearing En Banc Denied Aug. 31, 1998.

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Mark E. Solomons (argued), Laura M. Klaus, Arter & Hadden, Washington, DC, for Petioners.

Ida Castro, Department of Labor, Appellate Litigation, Washington, DC, Rita Roppolo (argued), Christian P. Barber, Anne Swiatek, Department of Labor, Office of the Solicitor, Washington, DC, for Respondents.

Thomas O. Shepard, Jr., Benefits Review Bd., Washington, DC, for Party-in-Interest.

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Before CUMMINGS, MANION, and EVANS, Circuit Judges.

MANION, Circuit Judge.

Bernard Luman worked in the coal mining industry for 32 years. In 1975, he filed a request for benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-45, and in 1977, he died. An administrative law judge granted Luman's, and his widow's, claims, and the Benefits Review Board affirmed. Between 1993 and 1996, Midland Coal Company filed three requests to reconsider the Board's original decision, and then appealed to this court. Because we conclude that Midland Coal Company did not timely file its appeal, we dismiss this petition for review for lack of jurisdiction.

I.

Bernard Luman worked as a coal miner for 32 years for Midland Coal Company and its predecessors. In June 1974, Luman was hospitalized and treated by Dr. Keith Frankhauser for bronchial pneumonia and pulmonary emphysema. Dr. Frankhauser concluded that "this man qualifies for black lung disease because he has had pulmonary fibrosis and certainly has marked dyspnea and has had difficulty in breathing at times." On February 18, 1975, Luman filed a request for benefits with the U.S. Department of Labor under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945. In May 1975, at the request of the Department of Labor, Dr. David Holden examined Luman. Dr. Holden x-rayed Luman, but the x-ray did not reveal pneumoconiosis. However, Dr. Holden diagnosed Luman with moderately severe chronic obstructive pulmonary disease, which caused shortness of breath. Dr. Holden also found that this condition was related to Luman's coal mine employment. In August 1975, Dr. Frankhauser again examined Luman, this time at the request of the Department of Labor. Dr. Frankhauser again diagnosed pulmonary emphysema, and found that it was causally related to Luman's coal mine employment. He also noted that Luman's pulmonary condition restricted his activities and caused "marked dyspnea."

In 1976, Luman was hospitalized at the Galesburg Cottage Hospital for having a low white blood cell count and external hemorrhoids. After a six-week hospital stay, he was transferred to the Mayo Clinic in Rochester, Minnesota. Once there, Luman was diagnosed and treated for Hodgkin's disease. The actual medical records from the Mayo Clinic are not a part of the record, but five letters from Mayo Clinic treating physicians to Luman's physician at the Galesburg Cottage Hospital are. None of these letters discuss pneumoconiosis. On January 4, 1977, Luman died; the death certificate stated that the cause of death was Hodgkin's disease.

In 1978, Luman's widow, Lucille Luman, filed a survivor's claim with the Department of Labor. In 1980, the Department of Labor made an initial finding that Luman died due to pneumoconiosis, and was entitled to benefits. It also determined that Midland, as Luman's last employer for a duration of at least one year, was liable for these benefits. The Department of Labor informed Midland of these findings and that it would start paying benefits if Midland refused to do so. Midland refused to pay, challenging both Luman's entitlement to benefits and also its own liability for benefits. At this time, the Department of Labor began paying Mrs. Luman benefits. ¹

After unsuccessful attempts to resolve the dispute, the Department of Labor referred the case to the Office of the Administrative Law Judges. An evidentiary hearing was held on August 13, 1985, and in May 1986, the ALJ ruled that the medical evidence failed to establish that Luman died of pneumoconiosis and was entitled to benefits. Mrs. Luman appealed this decision to the Benefits Review Board, which reversed and remanded the decision of the ALJ. In so doing, the Benefits Review Board instructed

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the ALJ to consider whether Mr. Luman was entitled to a regulatory presumption that he died of pneumoconiosis. Two possible presumptions were applicable: the "lay evidence" presumption, 20 C.F.R. § 727.203(a)(5), and the "25-year" presumption, 20 C.F.R. § 727.204(a). ²

In 1989, a second ALJ considered the record already developed, and ruled that Luman was entitled to the "lay evidence" presumption and the "25-year" presumption, and that Midland had failed to rebut these presumptions. On March 18, 1993, the Benefits Review Board affirmed the ALJ, finding that substantial evidence supported the ALJ's conclusion. Within 30 days of the second order Midland filed a motion for reconsideration, which was denied on October 20, 1994. Within 30 days of this denial of reconsideration, Midland filed another motion for reconsideration, alleging the same errors as it did in its first request to reconsider. The Benefits Review Board denied this motion on February 15, 1995. Refusing to take "no" for an answer, Midland filed a third motion for reconsideration, similar to the first two, on March 7, 1995. The Benefits Review Board again denied the motion on November 26, 1996.

On January 22, 1997, Midland filed this petition for review pursuant to 33 U.S.C. § 921(c) (incorporated into the Black Lung Benefits Act by 30 U.S.C. § 932(a)). This filing was within 60 days of November 26, 1996, the date of the Board's last denial of a request to reconsider, but not within 60 days of the Board's order denying Midland's first request to reconsider. The Director alerted us to a Sixth Circuit case, Peabody Coal Co. v. Abner, 118 F.3d 1106 (6th Cir.1997), which held that a litigant could not seek reconsideration twice, and then timely appeal the original decision. In this appeal, we must decide whether a second request to reconsider (or third for that matter) will toll the time for filing a petition for review under § 921(c) until after the denial of the second (or third) motion.

II.

Initially, we note that both parties have taken the position that we have jurisdiction in this case; however, the absence of a dispute about jurisdiction does not permit us to ignore the issue. We are required to satisfy ourselves of our own jurisdiction. See GNB Battery Tech., Inc. v. Gould, Inc., 65 F.3d 615, 619 (7th Cir.1995); Commercial Nat'l Bank v. Demos, 18 F.3d 485, 487 (7th Cir.1994). Recognizing this, Midland then suggests that because the Benefits Review Board thought it had jurisdiction to hear the successive motions for reconsideration, we should review its determination for an abuse of discretion. But the Board is not entitled to deference on this issue. "While we ordinarily give great weight to the interpretation of the agency charged with enforcement of the statute we are construing, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984), that deference does not extend to the question of judicial review, a matter within the peculiar expertise of the courts." Love v. Thomas, 858 F.2d 1347, 1352 n. 9 (9th Cir.1988). Therefore, we review the question of jurisdiction de novo.

Section 21(c) of the Longshore and Harbors' Workers Compensation Act (LHWCA), 33 U.S.C. § 921(c), as incorporated by the Black Lung Benefits Act, 30 U.S.C. § 932(a), authorizes appeals of final orders of the Benefits Review Board to the United States Court of Appeals. The petition for review, which initiates the appeal, must be filed with this court within 60 days of the issuance of the Benefits Review Board's final order. Id. Section 10(c) of the Administrative Procedures Act specifies that "[e]xcept as otherwise

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expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined [a request] for any form of reconsideration ..." 5 U.S.C. § 704.

The literal meaning of §...