Crockett Colleries, Inc. v. Barrett

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0065p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

-

CROCKETT COLLERIES, INC. and THE HARTFORD

Petitioners, -

ACCIDENT AND INDEMNITY COMPANY,

-

-

No. 05-4188

,

v. >

-

JAMES BLEVINS BARRETT and DIRECTOR, OFFICE OF -

-

-

WORKERS’ COMPENSATION PROGRAMS, UNITED

Respondents. -

STATES DEPARTMENT OF LABOR,

-

N

On Petition for Review of a Decision of the

Benefits Review Board, United States Department of Labor.

No. 05-0287 BLA.

Submitted: July 25, 2006

Decided and Filed: February 16, 2007

Before: GIBBONS and ROGERS, Circuit Judges; HOLSCHUH, District Judge.*

_________________

COUNSEL

ON BRIEF: Thomas C. Donkin, CLARK & WARD PLLC, Lexington, Kentucky, for Petitioners.

Joseph E. Wolfe, WOLFE, WILLIAMS & RUTHERFORD, Norton, Virginia, Helen Cox, Patricia

Nece, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents.

HOLSCHUH, D. J., delivered the opinion of the court, in which GIBBONS, J., joined.

ROGERS, J. (pp. 8-9), delivered a separate concurring opinion.

_________________

OPINION

_________________

JOHN D. HOLSCHUH, District Judge. Petitioners Crockett Colleries, Inc. and The Hartford

Accident and Indemnity Company (hereafter “Crockett”) appeal the decision of the Benefits Review

Board of the United States Department of Labor (“BRB”) affirming an award of black lung benefits

to Respondent James Barrett. The BRB found that Crockett’s petition for review failed to comply

*

The Honorable John D. Holschuh, United States District Judge for the Southern District of Ohio, sitting by

designation.

1

No. 05-4188 Crockett Colleries et al. v. Barrett et al. Page 2

with the requirements set forth in 20 C.F.R. § 802.211(b). It therefore refused to review the merits

of Crockett’s petition and summarily affirmed the decision of the Administrative Law Judge

(“ALJ”). On appeal, Crockett seeks an order requiring the BRB to review the ALJ’s decision or,

in the alternative, an order reversing the award of benefits. We conclude that the BRB erred in

finding that Crockett’s petition was insufficient to trigger review. We nevertheless affirm the award

of benefits because the ALJ correctly applied the law and his factual findings were supported by

substantial evidence.

I.

James Barrett, who worked in a coal mine for twenty-five years, suffers from a variety of

respiratory ailments. In 1991, he filed an application for benefits under the Black Lung Benefits

Act, 30 U.S.C. § 901 et seq. That first application was denied. He stopped working in the coal

mines in 1995. He filed a second application for black lung benefits in 2000. The Office of

Workers’ Compensation Programs preliminarily awarded benefits. At Crockett’s request, the

Department of Labor referred the matter to an ALJ for a formal hearing. The ALJ held a hearing

on January 28, 2002, and issued an order denying Barrett’s application for black lung benefits on

April 25, 2002.

In denying the application, the ALJ relied heavily on Dr. A. Dahhan’s report. Dahhan had

concluded that there was “insufficient objective data to justify the diagnosis of coal workers’

pneumoconiosis.” J.A. at 130. Twelve of thirteen readings of x-rays were negative for

pneumoconiosis. Dahhan opined that Barrett’s respiratory problems resulted not from coal dust

exposure but from cigarette smoking. Dahhan also concluded that Barrett was not totally disabled.

The ALJ rejected the conflicting opinion of Dr. Glen Baker, who had concluded that Barrett had

pneumoconiosis due to coal dust exposure and was totally disabled as a result. Baker stated that

Barrett’s problems “could all be due to cigarette smoking or could be due to a combination of

cigarette smoking and coal dust exposure.” He noted that coal dust exposure can cause the types

of problems suffered by Barrett. He also stated that Barrett’s significant history of exposure to coal

dust “probably contributes to some extent in an undefineable proportion to his pulmonary

complaints.” J.A. at 84.

Barrett wrote a letter to the BRB requesting a review of the ALJ’s decision and order. The

BRB construed the letter as a pro se appeal. On May 13, 2003, the BRB issued a decision vacating

the ALJ’s order and remanding the case for additional findings. On remand, in a decision and order

issued November 15, 2004, the ALJ found that Barrett was, in fact, entitled to black lung benefits.

This time, in reliance on Dr. Baker’s “well reasoned and well documented” opinion, the ALJ

concluded that Barrett had legal pneumoconiosis due to coal mine employment and was totally

disabled as a result.

Crockett filed a petition for review with the BRB. The BRB, however, held that it had no

basis on which to review the ALJ’s decision because Crockett had failed to comply with the federal

regulation set forth in 20 C.F.R. § 802.211(b) requiring Crockett to brief with specificity the alleged

errors in the ALJ’s decision. The BRB therefore affirmed the ALJ’s decision without reaching the

merits of Crockett’s petition for review.

Crockett has now appealed the BRB’s order, arguing that the BRB erred in finding that

Crockett’s petition was insufficient to trigger review. Crockett seeks an order requiring the BRB

to review the ALJ’s award of benefits or, in the alternative, an order reversing the award of benefits.

Barrett and the Director of the Office of Workers’ Compensation Programs of the Department of

Labor maintain that the BRB properly refused to review the merits of the case. In the alternative,

they argue that we should affirm the ALJ’s decision because it was supported by substantial

evidence.

No. 05-4188 Crockett Colleries et al. v. Barrett et al. Page 3

II.

In reviewing an ALJ’s decision and order, the BRB is authorized to “hear and determine

appeals raising a substantial question of law or fact.” 33 U.S.C. § 921(b)(3). The ALJ’s findings

of fact are conclusive “if supported by substantial evidence in the record considered as a whole.”

Id. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Ramey v. Kentland Elkhorn Coal Corp., 755 F.2d 485, 488 (6th Cir. 1985)

(internal quotation omitted).

In reviewing a decision of the BRB, our task “is limited to correcting errors of law and

ensuring that the Board adhered to the substantial evidence standard in its review of the ALJ’s

factual findings.” Creek Coal Co., Inc. v. Bates, 134 F.3d 734, 737 (6th Cir. 1997). The BRB’s

legal conclusions are reviewed de novo. Id.

III.

Crockett first challenges the BRB’s determination that Crockett’s petition for review failed

to comply with the requirements set forth in 20 C.F.R. § 802.211(b). That regulation provides, in

pertinent part:

Each petition for review shall be accompanied by a supporting

brief, memorandum of law or other statement which: Specifically

states the issues to be considered by the Board; presents, with

appropriate headings, an argument with respect to each issue

presented with references to transcripts, pieces of evidence and other

parts of the record to which the petitioner wishes the Board to refer;

a short conclusion stating the precise result the petitioner seeks on

each issue and any authorities upon which the petition relies to

support such proposed result.

In Sarf v. Director, OWCP, 10 B.L.R. 1-119, 1-120 (1987), the BRB held that a party

challenging an ALJ’s decision must do more than merely recite evidence favorable to his case; he

must also say why the ALJ’s decision was wrong.

The BRB found that Crockett had failed to adequately brief with specificity the errors

allegedly made by the ALJ. It held as follows:

In challenging the above findings, employer contends

generally that the evidence of record is not sufficient to establish

entitlement to benefits. However, the Board is not authorized to

undertake a de novo adjudication of the claim. To do so would upset

the carefully allocated division of authority between the

administrative law judge as trier-of-fact, and the Board as a

reviewing tribunal. See 20 C.F.R. § 802.301(a); Sarf v. Director,

OWCP, 10 BLR 1-119, 1-120-21 (1987); Cox v. Benefits Review

Board, 791 F.2d 445, 446-47, 9 BLR 2-46, 2-47-48 (6th Cir. 1986);

Fish v. Director, OWCP, 6 BLR 1-107, 1-109 (1983). As we have

emphasized previously, the Board’s circumscribed scope of review

requires that a party challenging the Decision and Order below

address that Decision and Order with specificity and demonstrate that

substantial evidence does not support the result reached or that the

Decision and Order is contrary to law. See 20 C.F.R. § 802.211(b);

Sarf, 10 BLR at 1-120; Cox, 791 F.2d at 446, 9 BLR at 2-47; Slinker

v. Peabody Coal Co., 6 BLR 1-465, 1-466 (1983); Fish, 6 BLR at 1-

No. 05-4188 Crockett Colleries et al. v. Barrett et al. Page 4

109. A petitioner who fails to comply with the requisite regulations

provides the Board with no basis to reach the merits of an appeal. Id.

In this case, the employer generally asserts that the

administrative law judge erred in the weight he accorded Dr. Baker’s

opinion. Employer’s Brief at 4-7. Employer, however, fails to

adequately brief with specificity any error made by the administrative

law judge in his evaluation of the evidence or in his application of the

law pursuant to 20 C.F.R. Part 718. Thus, as employer has failed to

adequately raise or brief any issues arising from the administrative

law judge’s award of benefits, the Board has no basis upon which to

review the decision. Thus, we decline to review the Decision and

Order of the administrative law judge and we affirm the

administrative law judge’s award of benefits. See Sarf, 10 BLR at 1-

121.

J.A. at 229-30 (footnote omitted).

On appeal, Crockett maintains that the arguments presented in its petition for review were

no less concise than the arguments presented by Barrett in his earlier appeal. According to Crockett,

the BRB unfairly applied different standards of review to the two petitions. Any difference in

treatment by the BRB, however, is attributable solely to the fact that Crockett was represented by

counsel and Barrett was not. Federal regulations provide that when a party is unrepresented by

counsel, the requirements set forth in 20 C.F.R. § 802.211(b) may be waived by the BRB. See 20

C.F.R. § 802.211(e) (“When a party appears pro se the Board may, in its discretion, waive formal

compliance with the requirements of this section and may, depending upon the particular

circumstances, prescribe an alternate method of furnishing such information as may be necessary

for the Board to decide the merits of any such appeal.”). Because Crockett was represented by

counsel when it filed its petition, it was subject to the requirements of 20 C.F.R. § 802.211(b).

Therefore, the question is not whether the BRB unfairly applied a double standard, but whether the

BRB erred in concluding that Crockett failed “to adequately brief with specificity any error made

by the administrative law judge in his evaluation of the evidence or in his application of the law.”

J.A. at 230.1

In its petition for review, Crockett argued that the ALJ’s conclusion that Barrett has

pneumoconiosis is not supported by substantial evidence and should be overturned. Crockett noted

that the ALJ, citing Cornett v. Benham Coal Company, Inc., 227 F.3d 569 (6th Cir. 2000), pointed

out that it is sufficient for a doctor to opine that a claimant’s respiratory ailment is “significantly

related to, or substantially aggravated by, dust exposure in coal mine employment.” Crockett

pointed out, however, that in Cornett, although neither doctor eliminated smoking as a cause of

Cornett’s disease, both doctors “were unequivocal that coal dust exposure aggravated Cornett’s

pulmonary problems; thus supporting the existence of legal pneumoconiosis.” Id. at 576. Crockett

noted that, in contrast, on page 10 of his decision and order, the ALJ acknowledged that Dr. Baker’s

opinion was “not wholly unequivocal, but does present evidence that the respiratory impairments

could be caused by coal dust.” Citing Justice v. Island Creek Coal Co., 11 B.L.R. 1-91 (1988),

Crockett argued that “[a]n equivocal opinion regarding etiology is entitled to less probative weight.”

1

Even though the petition for review that Crockett submitted to the BRB lies at the heart of this appeal, it was

not included as part of the Joint Appendix, although portions of it were quoted in Crockett’s brief. Federal Rule of

Appellate Procedure 16(a)(3) provides that “the pleadings, evidence, and other parts of the proceedings before the

agency” are included as part of the record on review. Pursuant to Federal Rule of Appellate Procedure 17(b)(3), we were

able to obtain a copy of Crockett’s petition from the BRB.

No. 05-4188 Crockett Colleries et al. v. Barrett et al. Page 5

(Pets.’ Brief at 5). Crockett therefore maintained that Baker’s opinion was insufficient to support

a finding of pneumoconiosis.

Crockett next challenged the ALJ’s evaluation of the evidence concerning whether Barrett

was totally disabled. At issue was whether a physician, exercising reasoned medical judgment based

on medically accepted clinical and laboratory diagnostic techniques, had concluded that Barrett’s

pneumoconiosis prevented him from engaging in coal mining or other comparable work. The ALJ

relied on Dr. Baker’s report, finding it well-reasoned and well-documented. In its petition for

review, Crockett argued that it was inconsistent for the ALJ to find that Baker’s report, which relied

on FEV1 results and arterial blood gas studies, supported a finding of total disability when the ALJ

had previously held that the same arterial blood gas studies did not support a finding of total

disability. Crockett also argued that the ALJ erred in finding that Dr. Dahhan’s opinion concerning

Barrett’s respiratory capacity was not well-reasoned.

We find that Crockett’s petition was sufficient to trigger review, and that the BRB erred in

finding to the contrary. The petition specifically argues that the ALJ erred in his application of the

law and his evaluation of the evidence. Crockett maintained that because Dr. Baker’s opinion was

“not wholly unequivocal” with respect to causation, this case is distinguishable from Cornett and

the ALJ erred in relying on Baker’s opinion to support a finding of legal pneumoconiosis.

Crockett’s petition also specifically challenges the ALJ’s evaluation and interpretation of the

medical reports of Dr. Baker and Dr. Dahhan concerning whether Barrett is totally disabled as a

result of his coal mine employment. As required, the petition cites to specific portions of the ALJ’s

decision and order, and sets forth the basis for Crockett’s belief that the ALJ’s factual findings are

not supported by substantial evidence. For these reasons, we find that the BRB erred in finding that

the petition for review “fails to adequately brief with specificity any error made by the

administrative law judge in his evaluation of the evidence or in his application of the law.” J.A. at

230.

IV.

If we agreed with the BRB that Crockett’s petition failed to comply with the procedural

requirements of 20 C.F.R. § 802.211(b), we would have no authority to review the merits of the

ALJ’s decision. See Cox v. Benefits Review Board, 791 F.2d 445, 446-47 (6th Cir. 1986). However,

since we find that Crockett’s petition was, in fact, sufficient to trigger review, we may proceed on

appeal to review the merits of that petition. See Eversole v. Shamrock Coal Co., Inc., No. 93-3527,

1994 WL 376895 (6th Cir. July 18, 1994) (holding that the BRB erred in refusing to review the

petition, but affirming the ALJ’s decision because it was supported by substantial evidence); Doan

v. Jericol Mining, Inc., No. 95-4045, 1996 WL 189263 (6th Cir. April 18, 1996) (same).

“When the question before this court is whether the ALJ reached the correct result after

weighing conflicting medical evidence, ‘our scope of review . . . is exceedingly narrow. Absent

an error of law, findings of facts and conclusions flowing thereform [sic] must be affirmed if

supported by substantial evidence.’” Knuckles v. Director, OWCP, 869 F.2d 996, 997 (6th Cir.

1989) (quoting Riley v. National Mines Corp., 852 F.2d 197, 198 (6th Cir. 1988)). Moreover, when

medical testimony conflicts, the question “‘of whether a physician’s report is sufficiently

documented and reasoned is a credibility matter left to the trier of fact.’” Tennessee Consol. Coal

Co. v. Crisp, 866 F.2d 179, 185 (6th Cir. 1989) (quoting Moseley v. Peabody Coal Co., 769 F.2d

357, 360 (6th Cir. 1985)). The ALJ must, however, adequately explain the reasons for his decision.

See Director, OWCP v. Congleton, 743 F.2d 428, 430 (6th Cir. 1984).

In this case, the ALJ found that Barrett was entitled to black lung benefits because Barrett

had established that: (1) he has pneumoconiosis; (2) the pneumoconiosis arose out of his

employment in the coal mines; and (3) he is totally disabled as a result. 20 C.F.R. §§ 718.202,

No. 05-4188 Crockett Colleries et al. v. Barrett et al. Page 6

718.203, 718.204. In making this determination, the ALJ had to determine which of the two

conflicting medical reports was better reasoned. Dr. Baker opined that Barrett had met all of the

requirements; Dr. Dahhan opined that Barrett had met none of the requirements. The ALJ initially

denied Barrett’s application, finding that Dr. Dahhan’s opinion was better reasoned. On remand,

however, the ALJ rejected Dr. Dahhan’s opinion in favor of Dr. Baker’s. While Crockett may be

dismayed by the apparent reversal in course, this does not provide any basis for overturning the

ALJ’s award of benefits. We find that the ALJ’s conclusion, that Barrett suffers from

pneumoconiosis due to coal mine employment and is totally disabled as a result, is in accordance

with the law and is supported by substantial evidence. It must, therefore, be affirmed.

The ALJ found that Barrett had established the existence of legal pneumoconiosis pursuant

to 20 C.F.R. § 718.202(a)(4). Legal pneumoconiosis includes respiratory and pulmonary

impairments significantly related to, or substantially aggravated by, coal dust exposure. See 20

C.F.R. §§ 718.201(a)(2) and 718.201(b). A claimant may establish the existence of legal

pneumoconiosis “if a physician, exercising sound medical judgment, notwithstanding a negative

X-ray, finds that the miner suffers or suffered from pneumoconiosis as defined in § 718.201. Any

such finding shall be based on objective medical evidence such as blood-gas studies,

electrocardiograms, pulmonary function studies, physical performance tests, physical examination,

and medical and work histories. Such a finding shall be supported by a reasoned medical opinion.”

20 C.F.R. § 718.202(a)(4).

Dr. Dahhan and Dr. Baker agree that Barrett suffers from some degree of respiratory or

pulmonary impairment. The question in dispute is whether that impairment is caused by cigarette

smoking, coal dust exposure, or both. The ALJ noted that because of Barrett’s long-time coal mine

employment, Barrett was entitled to a presumption that his pneumoconiosis was caused by coal dust

exposure. See 20 C.F.R. § 718.203(b) (“If a miner who is suffering or suffered from

pneumoconiosis was employed for ten years or more in one or more coal mines, there shall be a

rebuttable presumption that the pneumoconiosis arose out of such employment.”).

The ALJ found that this presumption had not been rebutted. He also relied on Dr. Baker’s

report. Baker first stated that Barrett’s moderate obstructive defect “could all be due to cigarette

smoking or could be due to a combination of cigarette smoking and coal dust exposure.” He

nevertheless concluded that the coal dust exposure “probably contributes to some extent in an

undefinable proportion” to Barrett’s pulmonary problems. The ALJ acknowledged that Baker’s

opinion with respect to causation was “not wholly unequivocal.” The ALJ nevertheless found that

any equivocality appeared “to relate to the extent to which coal dust exposure contributed rather than

whether coal dust contributed to Claimant’s respiratory impairments.” J.A. at 216 (emphasis in

original).

In rejecting Dr. Dahhan’s opinion, the ALJ found that Dahhan had not adequately explained

why Barrett’s responsiveness to treatment with bronchodilators necessarily eliminated a finding of

legal pneumoconiosis, and had not adequately explained “why he believes that coal dust exposure

did not exacerbate [Barrett’s] allegedly smoking-related impairments.” J.A. at 217. In short, the

ALJ clearly articulated his reasons for crediting Baker’s opinion over Dahhan’s, and substantial

evidence supports the ALJ’s finding that Barrett has legal pneumoconiosis due to coal mine

employment.

Substantial evidence also supports the ALJ’s finding that Barrett is totally disabled as a result

of the pneumoconiosis. Total disability may be proved in one of four ways: (1) qualifying

pulmonary function tests; (2) qualifying arterial blood-gas tests; (3) cor pulmonale with right-sided

congestive heart failure; or (4) a physician exercising reasoned medical judgment, based on

medically acceptable clinical and laboratory diagnostic techniques, concludes that the respiratory

No. 05-4188 Crockett Colleries et al. v. Barrett et al. Page 7

or pulmonary condition prevents the miner from engaging in his usual employment or comparable

employment. 20 C.F.R. § 718.204(b)(2).

The ALJ noted that four pulmonary function studies were included in the record. Although

three of the four produced qualifying results, the ALJ found that one of those three tests was invalid.

Nevertheless, because two of the conforming studies produced qualifying results, the ALJ concluded

that the totality of the pulmonary function evidence supported a finding of total disability. These

pulmonary function studies, standing alone, would have been sufficient to support a finding of total

disability. See 20 C.F.R. § 718.204(b)(2)(i). Nevertheless, the ALJ also found that Barrett could

establish total disability based on Dr. Baker’s reasoned medical judgment. See 20 C.F.R.

§ 718.204(b)(2)(iv).

Baker concluded that Barrett suffers a moderate impairment and lacks the respiratory

capacity to perform the work of a coal miner or comparable work in a dust-free environment. J.A.

at 120. The ALJ noted that Baker’s opinion was based not only on the March 28, 2000 pulmonary

function test, which was determined to be invalid, but also on a subsequent pulmonary function test

that did produce qualifying results and on arterial blood gas studies which indicated that Barrett had

“mild resting arterial hypoxemia.” J.A. at 222. The ALJ concluded that, “[w]hile the weight of the

valid and conforming pulmonary function tests alone constitutes probative evidence of total

disability, when combined with the arterial blood gases, which provide no evidence of total

disability, and the medical opinions, which weigh in favor of a finding of total disability, the weight

of the evidence directs a finding of total disability.” J.A. at 223. In rejecting Dr. Dahhan’s opinion

to the contrary, the ALJ noted that Dahhan did not reach a clear, medical conclusion concerning

Barrett’s respiratory capacity and failed to compare Barrett’s “exertional requirements with his

respiratory capacity in order to reach his conclusion that he possessed the capacity to return to coal

mine employment.” J.A. at 222. Finally, the ALJ noted that Barrett was entitled to a rebuttable

presumption that his total disability was caused by coal mine employment.

To summarize, we find that the ALJ correctly applied the law, and that his factual findings

are supported by substantial evidence. He adequately explained his reasons for rejecting Dr.

Dahhan’s medical report and explained why he found Dr. Baker’s report to be well-reasoned. We

therefore affirm the award of black lung benefits to Barrett.

No. 05-4188 Crockett Colleries et al. v. Barrett et al. Page 8

______________________

CONCURRENCE

______________________

ROGERS, Circuit Judge, concurring. I concur fully in the majority opinion. I write

separately to explain why this court is permitted to affirm rulings of the Benefits Review Board

(BRB) on grounds other than those relied on by the BRB, rather than remand erroneous rulings to

the Board as would be required in the case of ordinary appellate review of agency decisions. Such

a course appears on the surface to conflict with the time-honored administrative law principle that

“an administrative order cannot be upheld unless the grounds upon which the agency acted in

exercising its powers were those upon which its action can be sustained.” SEC v. Chenery Corp.,

318 U.S. 80, 95 (1943). Because the BRB’s rulings are formally administrative orders, it would

appear that the Chenery principle requires that we remand erroneous decisions to the BRB even if

alternative legal grounds exist to support the Board’s decision. Indeed, the Fourth Circuit so held

in Island Creek Coal Co. v. Henline, 456 F.3d 421, 426 (4th Cir. 2006) (“Affirming the Board’s

[decision] on an alternative ground not actually relied upon by the Board is prohibited under the

Chenery doctrine”).

The Chenery principle does not apply in this case, however, because the narrow, quasi-

judicial function of the BRB distinguishes BRB orders from the ordinary instance of agency decision

making.

The BRB exercises the appellate review authority formerly exercised by the United States

District Courts. See House Report No. 92-1441, 1972 U.S.C.C.A.N. 4698, 4709. Thus, in the

current scheme, Black Lung claims are first heard and decided by an ALJ. Then the ALJ’s

determination may be appealed to the BRB. When the BRB reviews the ALJ’s determination, the

Board’s review is narrowly defined by 33 U.S.C. § 921(b)(3), which provides that “findings of fact

in the decision under review by the Board shall be conclusive if supported by substantial evidence

in the record considered as a whole.” After the BRB issues a final order an aggrieved party may

appeal the BRB’s order to this court. This court then reviews the ALJ’s factual conclusion for

substantial evidence and legal determinations de novo. York v. Benefits Review Board, 819 F.2d

134, 136 (6th Cir. 1987). Our court has recognized this to mean that, “in effect, [] the standards of

review for the Benefits Review Board and this Court are the same.” Welch v. Benefits Review Bd.,

808 F.2d 443, 445 (6th Cir. 1986).

In this context, the ordinary Chenery concerns melt away. The Chenery doctrine rests on

the understanding that agency orders involve “a determination of policy or judgment which the

agency alone is authorized to make.” Chenery, 318 U.S. at 88. But, the BRB functions exclusively

as a “quasi-judicial,” rather than as a policy making, body. 20 C.F.R. § 801.103; see also Norfolk

& Western Ry. Co. v. Roberson, 918 F.2d 1144, 1147 (4th Cir. 1990) (“[T]he Board’s interpretation

standing alone is not entitled to special judicial deference”). Accordingly, the BRB does not possess

any unique authority to make the kinds of judgments it is authorized to make; rather, when

reviewing the BRB’s orders, the courts of appeals are called upon to do exactly the same thing (and

the only thing) that the BRB is empowered to do, namely determine whether the underlying ALJ’s

decision is supported by substantial evidence.

In this scheme the BRB functions just like the district courts it replaced. It is, therefore,

appropriate that courts of appeals should treat review of the Board’s decisions like our review of

legal decisions from the district courts, rather than like the ordinary review of agency

determinations. The Supreme Court in Chenery observed that it would be “wasteful” to send a case

back to a district court “to reinstate a decision which it had already made but which the appellate

court concluded should properly be based on another ground within the power of the appellate court

No. 05-4188 Crockett Colleries et al. v. Barrett et al. Page 9

to formulate.” Chenery, 318 U.S. at 88. Because the BRB functions like a district court reviewing

agency decisions for substantial evidence rather than like the typical administrative agency

empowered to exercise independent administrative judgment, it would be similarly wasteful and

unnecessary for this court to remand a case to the BRB when it is apparent that alternative legal

grounds exist to support the Board’s order.

Other circuits have similarly affirmed the BRB on alternate grounds. United Brands Co. v.

Melson, 594 F.2d 1068, 1072 n.10 (5th Cir. 1979) (overruled on other grounds) (“When the Board’s

order can be affirmed on a question of law, we think we are fully empowered to do so”); Todd

Shipyards Corp. v. Director, 848 F.2d 125, 127 n.3 (9th Cir. 1988) (“When the Board’s Order can

be affirmed on a question of law, we are fully empowered to do so, even though the Board relied on

a different ground or principle”); Lauderdale v. Director, 940 F.2d 618, 622 (11th Cir. 1991) (“We

can affirm a decision of the Board for a legal reason not advanced by the Board”).