Pruitt v. Commonwealth Resources, Inc.

Decision Date09 July 2018
Docket NumberBRB 17-0253 BLA
CourtCourt of Appeals of Black Lung Complaints


Appeal of the Decision and Order - Awarding Benefits of Alan L Bergstrom, Administrative Law Judge, United States Department of Labor.

Joseph E. Wolfe and Brad A. Austin (Wolfe, Williams & Reynolds) Norton, Virginia, for claimant.

Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for employer.

Michelle S. Gerdano (Kate S. O'Scannlain, Solicitor of Labor; Maia S. Fisher, 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: HALL, Chief Administrative Appeals Judge, BOGGS and ROLFE, Administrative Appeals Judges.


Employer appeals the Decision and Order - Awarding Benefits (2013-BLA-05101) of Administrative Law Judge Alan L Bergstrom (the administrative law judge) rendered on a survivor's claim filed on March 24, 2003, pursuant to the provisions of the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012) (the Act or BLBA). The administrative law judge initially determined that employer is the properly named responsible operator. On the merits of entitlement, the administrative law judge found that claimant[1] established that the miner had legal pneumoconiosis in the form of chronic obstructive pulmonary disease (COPD) due to coal mine dust exposure. He further found that claimant established that the miner died due to pneumoconiosis and awarded benefits accordingly.[2]

On appeal, employer challenges the administrative law judge's finding that employer is the properly named responsible operator, and asserts that liability for the payment of benefits should be transferred to the Black Lung Disability Trust Fund (Trust Fund). Employer further asserts that the administrative law judge erred in finding that claimant established that the miner had legal pneumoconiosis and that the miner's death was due to legal pneumoconiosis. Claimant responds, urging affirmance of the administrative law judge's decision. The Director, Office of Workers' Compensation Programs (the Director), has filed a limited response, urging the Board to hold that there is no reversible error in the administrative law judge's designation of employer as the responsible operator.

The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed if it is rational, supported by substantial evidence, and in accordance with applicable law.[3] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

I. Procedural History

This case has a protracted history. The miner filed a claim on August 24, 1984. After litigation that lasted for years, Administrative Law Judge John S. Patton dismissed the originally designated responsible operator and subsequently issued a Decision and Order awarding benefits on November 28, 1989, designating the Trust Fund as liable for the payment of benefits. The Director appealed to the Board on December 28, 1989, but subsequently filed a request to dismiss the appeal, which the Board granted on July 17, 1990. Pruitt v. Royal Machine Works, Inc., BRB No. 90-0109 BLA (July 17, 1990) (unpub. Order).

The miner died on November 24, 2002, and his widow filed this survivor's claim on March 24, 2003. Director's Exhibit 3. The district director identified employer as the potentially liable operator and served it with a Notice of Claim.[4] Director's Exhibits 9, 10, 12. The district director subsequently awarded benefits in a Proposed Decision and Order Granting Request for Modification dated November 23, 2005. Director's Exhibit 65. Employer requested a hearing.

On March 10, 2006, the district director referred the case to the Office of Administrative Law Judges (OALJ). Administrative Law Judge Richard T. Stansell-Gamm issued a Notice of Hearing and instructed employer to explain its opposition to its designation as the responsible operator. Director's Exhibit 77. On August 15, 2006, Judge Stansell-Gamm granted employer's motion to remand the case to the district director to provide employer "an opportunity to present evidence at the district director level concerning its potential liability as the named responsible operator," noting that the district director had not fully considered the issue of employer's designation as the responsible operator. Director's Exhibits 79, 81.

On remand, the district director gave employer an opportunity to develop evidence on the responsible operator issue. Employer filed various motions maintaining that it could not be held liable as the responsible operator in a survivor's claim where the Trust Fund had assumed liability in the miner's claim. The district director denied the motions on April 19, 2007 and, at employer's request, the case was referred to the OALJ.

Administrative Law Judge Edward Terhune Miller held a hearing on February 13, 2008. In an Order dated September 25, 2009, Judge Miller rejected employer's motion to be dismissed as a party, found that employer was the properly designated responsible operator, and remanded the case to the district director.[5] On remand, the district director issued a Schedule for the Submission of Additional Evidence, as directed by Judge Miller, and subsequently issued a Proposed Decision and Order Awarding Benefits on July 26, 2011. Employer requested a hearing and the case was referred to the OALJ.

The case was assigned to Judge Stansell-Gamm, who scheduled a hearing for March 29, 2012. Upon notice of the widow's death on February 22, 2012, Judge Stansell-Gamm continued the hearing and remanded the case to the district director for a determination of whether there was an appropriate party to pursue the claim. At the request of the widow's son, the district director substituted him as the claimant and the case was again referred to the OALJ on October 9, 2012.

Before the administrative law judge, employer argued that it is not the responsible operator because it was never notified of its potential liability during the pendency of the miner's original claim, which resulted in an award of benefits in 1989.[6] Employer also contended that the doctrine of collateral estoppel barred relitigation of the responsible operator issue and required the Trust Fund to assume liability for any benefits awarded in the survivor's claim. Upon agreement of the parties that the case be decided on the record, the administrative law judge acknowledged employer's arguments set forth in its brief and, after reviewing Judge Miller's September 25, 2009 Remand Order, agreed with the reasoning, found that employer is the properly named responsible operator, and that claimant established entitlement to survivor's benefits on the merits. Decision and Order at 15-16, 19. This appeal followed.

A. Responsible Operator

1. Res Judicata does not bar relitigation of the responsible operator issue.

Employer does not contest that it meets the responsible operator criteria. See 20 C.F.R. §§725.494, 725.495. Instead, it argues that because the Trust Fund was found liable for benefits in the miner's claim, the administrative law judge was bound by that determination in the survivor's claim. But it takes a different route than it did below to get there. Abandoning its position that the miner's and survivor's claims are separate, and that collateral estoppel bars relitigation of the responsible operator issue in the survivor's claim, employer now argues that the claims are the same for the purposes of identifying a responsible operator and that res judicata bars the relitigation of the issue. See Employer's Brief at 7-10.

There are material differences, however, in the two doctrines. Under res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties based on the same cause of action. Under collateral estoppel, the second claim is upon a different cause of action; the doctrine precludes relitigation of issues in the second suit that were actually litigated and necessary to the outcome of the first suit. Parklane Hosiery Co. Inc. v. Shore, 439 U.S. 322, 327 (1979). Both are affirmative defenses that can be waived or abandoned - even where they are mentioned in initial proceedings - if not developed and pressed below. See Arizona v. California, 530 U.S. 392, 410 (2000); Southern Pac. Communications Co. v. Am. Tel. & Tel. Co., 740 F.2d 1011, 1018 (D.C. Cir. 1984); see generally Wright, Miller & Cooper, Federal Practice and Procedure (2d ed. 2010) § 4405.

Employer does not mention the doctrine of collateral estoppel anywhere in its argument before us. Employer's Brief at 6-10. And while it made a single passing reference to res judicata in its brief below, it substantively argued only that the claims were distinct and the elements of collateral estoppel were met. Employer's Post Hearing Brief at 7, 7-13. Employer thus has asserted diametrically opposed positions in two successive forums. The Board, however, generally will not consider arguments raised for the first time on appeal. See McKinney v. Benjamin Coal Co., 6 BLR 1-529, 1-531 (1983). Employer's argument that res judicata bars consideration of the responsible operator issue thus has been waived. Id.

But even if it...

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