Mining Energy v. Workers' Comp. Programs

• Decision Date: 16 December 2004
• Docket Number: No. 02-2259.,02-2259.
• Citation: 391 F.3d 571
• Parties: MINING ENERGY, INCORPORATED; OLD REPUBLIC INSURANCE COMPANY, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; Anna Ruth Powers, Widow of Woodrow Wilson Powers, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

391 F.3d 571

MINING ENERGY, INCORPORATED; OLD REPUBLIC INSURANCE COMPANY, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; Anna Ruth Powers, Widow of Woodrow Wilson Powers, Respondents.

No. 02-2259.

United States Court of Appeals, Fourth Circuit.

Argued: October 26, 2004.

Decided: December 16, 2004.

ARGUED: Mark Elliott Solomons, Greenberg Traurig, L.L.P., Washington, D.C., for Petitioners. Gary K. Stearman, Office of the Solicitor, Black Lung Division, United States Department of Labor, Washington, D.C., for Respondents. ON BRIEF: Laura Metcoff Klaus, Greenberg Traurig, L.L.P., Washington, D.C., for Petitioners. Howard M. Radzely, Acting Solicitor of Labor, Allen H. Feldman, Associate Solicitor for Special Appellate and Supreme Court Litigation, Nathaniel I. Spiller, Deputy Associate Solicitor, United States Department of Labor, Washington, D.C., for Respondent Director.

Before LUTTIG, KING, and DUNCAN, Circuit Judges.

Dismissed by published opinion. Judge King wrote the opinion, in which Judge Luttig and Judge Duncan joined.

KING, Circuit Judge:

Mining Energy, Inc., and its insurer, Old Republic Insurance Company, (collectively "Mining Energy"), petition this Court for review of the May 2002 decision of the Benefits Review Board of the Department of Labor (the "Board"), which granted Mining Energy's motion for reconsideration but denied its request for relief. See Powers v. Mining Energy, et al., No. 00-1134 BLA (BRB May 30, 2002). As explained below, the petition for review was not filed in a timely manner and must be dismissed for lack of jurisdiction.

I.

This dispute has a long and contentious history. It began in 1988, when an administrative law judge ("ALJ") first awarded black lung benefits to Woodrow Powers, a retired twenty-eight-year veteran of the coal mines of southwestern Virginia. Mining Energy, his former employer, appealed the ALJ's decision to the Board, which, on January 28, 1991, upheld the award of benefits.

Beginning in October 1991, Mining Energy declined to pay certain of Powers's medical bills, contending that his ailments were caused by cigarette smoking rather than by pneumoconiosis resulting from his coal mine employment. On April 30, 1994, before the medical bills dispute with Mining Energy could be resolved, Mr. Powers died. His widow, Ruth Ann Powers, filed a separate claim for survivor's benefits on May 17, 1994.

The ALJ thereafter conducted a joint hearing on Mr. Powers's claim for medical benefits and on Mrs. Powers's claim for survivor's benefits. In a ruling of May 21, 1997, the ALJ denied both claims on the basis that Mr. Powers's illness and death were not due to coal miner's pneumoconiosis. On April 15, 1999, the Board vacated the ALJ's decision. It remanded both claims to the ALJ with directions that he consider the prohibition on relitigation of entitlement to medical benefits explained in Doris Coal Co. v. Director, OWCP, 938 F.2d 492, 496-97 (4th Cir.1991), and that he also consider the potential collateral estoppel effect on Mrs. Powers's survivor claim of the ALJ's earlier finding of pneumoconiosis.

Mining Energy moved for reconsideration of the Board's remand decision, but the Board, in a ruling of November 30, 1999, adhered to its decision of April 15, 1999. On remand, an ALJ, on July 31, 2000, awarded benefits to the Powers on both claims. The Board affirmed those awards on September 28, 2001, and Mining Energy again moved for reconsideration. On May 30, 2002, the Board granted the motion for reconsideration, and denied Mining Energy's request for relief (the "May 30 Ruling").

On October 28, 2002, 151 days after the May 30 Ruling, Mining Energy filed its petition for review in this Court, seeking our review of that ruling. Because the applicable statute, 33 U.S.C. § 921(c), mandates that a petition for review be filed within sixty days of issuance of a decision by the Board, Mining Energy wrote to the Court, on October 24, 2002, explaining that it had no knowledge of the May 30 Ruling until September 23, 2002, when it received notification from the Department of Labor ("DOL") regarding payment of benefits. Mining Energy contends (and the Director agrees) that on May 30, 2002, Mining Energy was erroneously served with an opinion in an unrelated case, rather than with the May 30 Ruling.

The Director initially moved in this Court to dismiss Mining Energy's petition for review for lack of jurisdiction, asserting that the petition was not filed within sixty days of issuance of the Board's decision, as required by § 921(c). Mining Energy opposed the motion to dismiss, contending that its petition for review was filed in a timely manner, within sixty days of September 23, 2002, the date on which Mining Energy received actual notice of the May 30 Ruling. Upon receiving evidence that Mining Energy was indeed served with an unrelated Board decision, the Director, by letter dated October 22, 2004 (received and filed by our Clerk on October 26, 2004) withdrew his motion to dismiss. At the oral argument conducted on October 26, 2004, the Director confirmed the withdrawal of his motion.

II.

The appellate process at issue in this case was established by Congress in the Longshore and Harbor Workers' Compensation Act ("LHWCA"), codified at 33 U.S.C. §§ 901-950. The Secretary of Labor administers the Act, which includes section 921(c) of Title 33. That section 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.

33 U.S.C. § 921(c) (emphasis added). As we held in Butcher v. Big Mountain Coal, Inc., 802 F.2d 1506, 1507-08 (4th Cir.1986), the sixty-day filing period established by Congress in § 921(c) is jurisdictional. Several other circuits have agreed with our view. See Stevedoring Servs. of Am. v. Dir., OWCP, 29 F.3d 513, 516 (9th Cir.1994); Brown v. Dir., OWCP, 864 F.2d 120, 122 (11th Cir.1989); Bolling v. Dir., OWCP, 823 F.2d 165, 166 (6th Cir.1987); Dawe v. Old Ben Coal Co., 754 F.2d 225, 227 (7th Cir.1985); Clay v. Dir., OWCP, 748 F.2d 501, 502 (8th Cir.1984); Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 43-44 (2d Cir.1976), aff'd on other ground sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977).

In this proceeding, Mining Energy maintains that a Board decision has not been "issued," within the meaning of § 921(c), until and unless it has been both filed with the Board and properly served on the parties via certified mail, or until the party has received actual notice. The Director initially moved to dismiss the petition, maintaining that the certificate of service was legally sufficient and that "nowhere in the statute or regulation is actual notice required." Respondent's letter of 10/18/04, at 1. However, in his subsequent submission to the court, and at oral argument, the Director joined Mining Energy in urging that, "where the Board did not send the decision to the parties ... it has not `issued' the decision as that term has been interpreted in the regulation" and, in such an event, "the statutory time period does not begin to run until the petitioner receives actual notice of the decision." Respondent's letter of 10/22/04, at 2. The Director thus now contends that "issuance," pursuant to § 921(c), requires filing and looking behind a certificate of service to confirm that the decision was actually mailed.¹

For support of this proposition, both parties point principally to two DOL regulations, 20 C.F.R. §§ 802.403 and 802.410. The first of the these regulations, § 802.403, is entitled "Issuance of decisions; service," and it outlines the procedures that the Board is to follow in rendering a decision. In its subsection (b), § 802.403 directs:

The original of the decision shall be filed with the Clerk of the Board. 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 record on appeal, together with a transcript of any oral proceedings, any briefs or other papers filed with the Board, and a copy of the decision shall be returned to the appropriate deputy commissioner for filing.

The second regulation, § 802.410, is entitled "Judicial review of Board decisions." It provides in § 802.410(a) that:

[w]ithin 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 pursuant to section 21(c) of the LHWCA.

Both of these regulations were adopted by the DOL without conducting the notice-and-comment procedure contemplated by the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. (2000), in certain circumstances.² See 52 Fed.Reg. 27288, 27290 (July 20, 1987).

Here, the parties maintain that §§ 802.403 and 802.410 clarify what they contend is the statute's ambiguous use of the term "issuance," and that these regulations support their position that the May 30 Ruling was not "issued" on May 30 because it was not properly served.³ Despite what Mining Energy and the Director contend, however, neither § 802.403 nor § 802.410 defines the "issuance" of a Board decision as being when the decision has been both filed with the Clerk of the Board and served on the parties. Section 802.403(b) does oblige the Clerk of the Board to serve Board decisions by certified mail. However, the mere fact that the DOL directs the Board's Clerk to serve Board decisions does not mean that the DOL has interpreted the term "issuance" in § 921(c) to mean that an opinion has not been issued until it has been both filed and serv...