# Old Ben Coal Company v. Director, Office of Workers' Compensation Programs, United States Department of Labor, and James E. Hilliard

> Court of Appeals for the Seventh Circuit · May 31, 2002 · 292 F.3d 533

URL: https://www.frixlaw.com/law-library/cases/9495084

## Case

- **Full name:** OLD BEN COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, United States Department of Labor, and James E. Hilliard, Respondents
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** May 31, 2002
- **Citations:** 292 F.3d 533; 2002 U.S. App. LEXIS 10298; 2002 WL 1117775
- **Precedential status:** Published
- **Opinion:** Dissent by Wood
- **Judges:** Ripple, Manion, Wood
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9495084

## How later opinions describe it (automated extraction)

- explaining that the modi- fication analysis "will no doubt need to take into consider- ation many factors including . . . the quality of the new evidence"
- explaining that the modification analysis “will no doubt need to take into consideration many factors including ... the quality of the new evidence”
- observing that possibility employer might be permitted to recoup overpayment from estate notwithstanding state probate law was “enough— barely—to save the case from nonjusticia-bility”
- acknowledging possibility but holding that agency abused discretion by refusing to consider petition to modify filed after claimant died

## Opinion text

*549 DIANE P. WOOD, Circuit Judge,
dissenting.
This case requires us to reconcile two important principles of administrative law, as they apply to determinations made under the Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. The first of those principles relates to the legal rules that govern the proceeding, and the extent to which we are bound by the interpretation the agency in question has given to the statutes that govern it. . The second relates to the litigation process itself, and the extent to which an appellate court ought to defer to a primary adjudicator’s particularized applications of legal rules to the case before her. With respect, I do not agree with the way my colleagues have applied either of these principles to the case before us. I would affirm the decision- of the Benefits Review Board confirming the award of black lung benefits to the estate of James Hilliard.
I
In spite of the majority’s careful review of the background of the litigation, I find it necessary to begin with some additional observations. Old Ben concedes in its reply brief that the DOL has paid to Mrs. Hilliard (solely in her capacity as the representative of Mr. Hilliard’s estate — she submitted no claim for benefits in her own right) all benefits awarded to Mr. Hilliard. Because this court recognized that there was a serious question whether the estate, or Mrs. Hilliard, still has any stake at all in this litigation, we asked the parties to file additional memoranda on that issue. Mr. Hilliard died on February 28, 1995, which meant that his last payment month was February 1995. Old Ben did not file the petition for modification now before us until June 26, 1997. The supplemental briefs make it clear that the chances that anyone could recover the payments that the Hilliard Estate received are remote at best. That means that the real adversaries here are Old Ben and the DOL, one of which will be left holding the bag if the payments are indeed unrecoverable. Perhaps, at that future time, there will be an adversary proceeding between them, as they fight over which one has to bear the expense of unrecoverable payments. If the ALJ was correct,' then the DOL may seek reimbursement from Old Ben; if she was wrong, then the DOL must absorb the loss. But right now, the DOL is before this court arguing in support of Old Ben’s position that the ALJ misinterpreted the statutory scheme. This sounds suspiciously like a request for an advisory opinion, under the circumstances, -since a “victory” will actually risk harm to the agency in a monetary sense.
Noting these facts, Mrs. Hilliard began her argument on appeal with the assertion that this court lacks jurisdiction to hear the case. While she based this principally on the argument that Old Ben filed its third modification petition too late, the fact remains that she called to our attention a possible jurisdictional. problem (which we would have had a duty to notice even if she had said nothing, Fry v. UAL Corp., 84 F.3d 936, 939 (7th Cir.1996)). On the limited question of the timeliness of Old Ben’s petition, ! do not disagree with the majority’s analysis; I accept that Old Ben filed a timely petition. The real problem is whether we have had the benefit of a truly adversary presentation on the issue the majority has decided.
On the .one hand, Mrs. Hilliard ,has throughout these proceedings defended the ALJ’s decision. On the other hand, in her supplemental memorandum she maintained that- she has nothing whatsoever at stake -in the case; any injury would be purely hypothetical because under Illinois law, the government may no longer recov *550 er from the estate. 755 ILCS 5/18 — 12(b) (all claims against an estate are barred two years after the decedent’s death; Mr. Hil-liard died on February 3, 1995, and neither Old Ben nor DOL had filed a claim for these benefits by February 8, 1997, or at any later time). - The majority tries to avoid this- problem by pointing out that even if Mrs. Hilliard (as the representative of Mr. Hilliard) no longer has an interest in this litigation, the DOL and Old Ben are adverse parties because they disagree over who should ultimately bear the burden of the payments Mr. Hilliard received. That disagreement, however, is hypothetical as far as the present appeal is concerned; for reasons best. known to themselves, they are arguing together here. This court may not issue such advisory opinions merely to clarify the law.
Nevertheless, Mrs. Hilliard still maintains at least a theoretical interest in this dispute. It appears, for example, that Illinois law may not bar the federal government from making this claim against someone, even though Mr. Hilliard is dead and no estate was ever formally opened for him. See United States v. Summerlin, 310 U.S. 414, 417 , 60 S.Ct. 1019 , 84 L.Ed. 1283 (1940). The parties all seem to believe that federal law permits DOL to seek repayment, citing 30 U.S.C. §§ 923 (b) & 940 (incorporating 42 U.S.C. § 404 ). Practicalities are another matter: Mrs. Hilliard is nearly 72 years old and her ability to repay is not á matter of record. Nevertheless, however remote the possibility or the likelihood of success, the DOL may still try to collect from Mrs. Hilliard. Although it retains the discretion to grant a waiver, it has not indicated it would do so. That is enough — barely—to save the case from nonjusticiability, and so I agree with the majority that we may address the substantive question presented: whether accuracy concerns (almost) always trump-finality concerns for purposes of § 422(a) of the Black Lung Benefits Act, 30 U.S.C. § 932 (a), which incorporates § 22 of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 922 . See also 20 C.F.R. § 725.310 .
II
The relevant law on that substantive issue can be found in the special set of rules governing modification petitions in this particular area. Like the majority, I begin with the language of § 22, which the majority reproduces ante at 539. Under § 22, the deputy commissioner “may” “review a compensation case ... and ... issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation [i.e., the result of an earlier order], or award compensation.” It is clear, as the majority emphasizes, that the existence of this statute, coupled with the Supreme Court cases interpreting it, results in a system that does not follow traditional principles of res judi-cata. See Banks v. Chicago Grain Trimmers Ass’n, 390 U.S. 459 , 88 S.Ct. 1140 , 20 L.Ed.2d 30 (1968); O’Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254 , 92 S.Ct. 405 , 30 L.Ed.2d 424 (1972); Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291 , 115 S.Ct. 2144 , 132 L.Ed.2d 226 (1995). Where we part company is on the question of the way finality concerns do fit into the black lung (and longshore) system. Even the majority agrees that finality is not utterly irrelevant. If that was what Congress wanted, it would have said that the deputy commissioner “must” reopen a case upon a properly filed modification petition. Plainly, that is not what the statute says. Using the language of discretion, it says that the deputy commissioner “may’ reopen the case. The majority has read into the statute, however, substantive qualifications on when reopening under this seemingly discretionary language may oc *551 cur: it has judicially decreed that it will be an abuse of discretion for the deputy commissioner to refuse to reopen and reconsider a matter de novo in every case except those in which either a modification could not alter the award or a party has intentionally misused the modification mechanism for the purpose of delaying the adjudication or otherwise abusing the administrative process.
That standard appears nowhere in the statute, nor can one find it in any regularly promulgated regulátions issued by the DOL. Instead, it seems to be a litigating position that the DOL has crafted for the occasional case, in an effort to reconcile the court of appeals’ decisions in McCord v. Cephas, 532 F.2d 1377 (D.C.Cir.1976); Verderane v. Jacksonville Shipyards, Inc., 772 F.2d 775 (11th Cir.1985); and General Dynamics Corp. v. Director, OWCP, 673 F.2d 23 (1st Cir.1982). The majority points to Kinlaw v. Stevens Shipping & Terminal Co., 33 BRBS 68 (May 17, 1999) to show that the DOL has argued this position before, but a few arguments in appellate briefs in no way equate to official agency policy warranting deference. Indeed, the majority admits that this is not a situation in which this court owes deference to the agency’s position under the principles announced in Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984). See also Wyoming Fuel Co. v. Director, OWCP, 90 F.3d 1502 , 1505 (10th Cir.1996). It also acknowledges, in footnote 8, that the Supreme Court’s decision in United States v. Mead Corp., 533 U.S. 218 , 121 S.Ct. 2164 , 150 L.Ed.2d 292 (2001), changed the rules governing deference. Under Mead, we have been instructed to return to the regime established by Skidmore v. Swift & Co., 323 U.S. 134 , 65 S.Ct. 161 , 89 L.Ed. 124 (1944), under which a rule or agency position is entitled to claim respect only “according to its persuasiveness.” 121 S.Ct. at 2168 . In that respect, Mead went considerably beyond the Court’s earlier decision in Christensen v. Harris County, 529 U.S. 576 , 120 S.Ct. 1655 , 146 L.Ed.2d 621 (2000), which had' only hinted at the rule that should apply to less formal interpretations' found in policy statements, manuals, and the like.
Acceding to that rule, the majority announces that it finds the approach the DOL has outlined in its brief here to be a “reasonable interpretation of the statutory and regulatory language” and one that is supported by a “wealth” of Supreme Court and court of appeals decisions. Ante at 541. I cannot agree, because I find that the authorities on which the majority relies did not focus on the question of when finality concerns should prevail (or to put it differently what justifies an exception to the interest in accuracy), nor did they attempt to reconcile an unwavering preference for accuracy with the discretionary language of the statute. That fact, coupled with the way the DOL’s Benefits Review Board (as opposed to its lawyers) has actually administered this statute, leads me to conclude that this is not a situation in which we must defer to the DOL’s position. On the merits, I am persuaded that the rule that best reflects the statutory language and policy requires affirmance of the BRB’s decision here.
To reiterate, the central question before us is not whether § 22 is somehow qualified by a strict rule of res judicata. It is not, as the Supreme Court has plainly held in Banks v. Chicago Grain Trimmers Ass’n, 390 U.S. 459 , 88 S.Ct. 1140 , 20 L.Ed.2d 30 (1968), O’Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254 , 92 S.Ct. 405 , 30 L.Ed.2d 424 (1972), and Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291 , 115 S.Ct. 2144 , 132 L.Ed.2d 226 (1995). The question is instead one about *552 the standard the DOL must use in drawing the balance between accuracy (which at the extreme would call for reopening any time someone had new evidence or arguments) and finality (which at the extreme would forbid modification for any reason whatsoever). The majority has accepted the DOL’s argument for a standard under which accuracy trumps in every case (that is, every case is reopened upon a modification petition) unless the party seeking modification has intentionally abused the process, The alternative standard, which I find to be far better supported by the Supreme Court’s decisions, would call for a more flexible “interest of justice” determination to be made by the deputy commissioner (or other responsible official at the Department). The “interest of justice” standard would certainly permit consideration of intentional misuse, but it would also allow the responsible official to take into account factors such as the diligence of the party seeking modification, the number of times modification has been sought, and the quality of the new evidence or new arguments the party seeking modification wishes to present. A reviewing court would then decide whether a decision to reconsider, or a decision not to reconsider, an earlier award represented an abuse of discretion under familiar principles of administrative law. See, e.g., 5 U.S.C. § 706 (2)(A).
In Banks , the Supreme Court observed that the purpose of the amendment to § 22 that opened up mistaken determinations of fact to later review was “to broaden the grounds on which a deputy commissioner can modify an award by allowing modification where a mistake in a determination of fact makes such modification desirable in order to render justice under the act.” 390 U.S. at 464 , 88 S.Ct. 1140 (internal quotations omitted). The agency must therefore have some reason to believe that it would serve the interests of justice to reopen a proceeding that has been concluded and to reconsider the earlier result. See Verderane, supra; General Dynamics, supra. One such reason might certainly be the showing of intentional misuse of the modification mechanism that the majority has accepted. But it is not the only one. Finality itself is another factor that deserves some consideration on its own, as the administrative law judge here held. It is hard at best to make the case that finality has nothing to do with the interests of justice. After all, finality protects settled interests; it brings an enforced end to disputes between adversaries; it saves resources; and it reflects the pragmatic idea that the odds of improving the accuracy of decisionmaking by adding an additional phase of proceedings are probably not high in the majority of cases. These policies underlie the law of judgments and the procedural rules such as Fed.R.Civ.P. 60(b), which place heavy emphasis on finality interests. (Indeed, in Sahara Coal Co. v. Office of Workers’ Compensation Programs, 946 F.2d 554 (7th Cir.1991), this court commented that the modification provision of 20 C.F.R. § 725.310 now before us is the “counterpart to Rule 60(b).” Id. at 556 . The Sahara Coal decision had no occasion to explore how close a counterpart it was, but the analogy would suggest that finality is not the disfavored notion the majority has made it.)
Diligence is another legitimate consideration for the agency to take into account in deciding whether or not to modify an earlier decision. That is precisely the point the ALJ here was making when she weighed against Old Ben the fact that the evidence it wanted to present would have been available to a diligent party in time for the earlier two rounds of this case:
The modification provisions of the Act are not intended to allow a party to lay back, and, having received an adverse *553 decision, take a second (or in this case, third) bite at the apple by gearing up and presenting evidence that it could ■ have presented at the first hearing on the claim. To do so would allow the Employer, under the guise of an allegation of mistake, to retry its case simply because it feels that it can make a better showing the next time around.
App. 35. This ALJ was not the first person at the DOL to take diligence into account. To the contrary, the BRB has refused modification requests before on this precise ground. In Kinlaw v. Stevens Shipping Co., supra, the BRB affirmed the ALJ’s refusal to modify. The ALJ had relied on the fact that the employer could and should have obtained and proffered during the original hearing the medical opinions it was offering in support of its modification request. The BRB agreed, stating that
to allow employer to reopen the prior decision on the basis of what equates to post-decisional discovery would have the adverse effect of allowing any employer reluctant to finance adequate discovery pre-trial to count on correcting any omissions by way of a petition for modification, which would defeat both the principles of finality and that [sic] of judicial efficiency.
The party’s overall diligence, as well as the public values.embodied in finality and efficiency, are all legitimate dimensions of the “justice under the Act” that should guide a decision under § 22. See also L.C. Branham v. Bethenergy Mines, Inc., 1998 WL 169698 (DOL BRB 1998).
Naturally, there have been other cases in which the BRB has permitted modification even without a demonstration that new evidence is available. This is what one would expect in a system that permits, but does not compel, modification. The Supreme Court underscored the fact that the ALJ has the discretion under § 22 to modify an award to correct mistakes of fact, whether those mistakes were demonstrated by wholly new evidence or nothing more than further reflection on the evidence already submitted. O’Keeffe, 404 U.S. at 256 , 92 S.Ct. 405 . See also Consolidation Coal Co. v. Worrell, 27 F.3d 227, 230 (6th Cir.1994) (“If the claimant merely alleges that the ultimate fact (disability due to pneumoconiosis) was wrongly decided, the deputy commissioner may, if he chooses, accept this contention and modify the final order accordingly.”); Jessee v. Director, OWCP, 5 F.3d 723, 725 (4th Cir.1993) (“There is no need for a smoking gun factual error, changed conditions, or startling new evidence.”). The ALJ in this case was aware that there was no hard- and-fast rule requiring new evidence; she began her opinion with the same statement just referenced from O’Keeffe and acknowledged that all evidence of record is relevant on a modification petition and that the factfinder enjoys broad discretion even if nothing more occurs than further reflection on the existing record. App. 33. Thus, I am satisfied that her decision was not tainted by a misapprehension of the standards that apply in these cases.
Based on the more flexible “interests of justice” standard I have described, I would find that the ALJ and the BRB did not abuse their discretion in refusing to modify the Hilliard award. This was the third time around for Old Ben, in a modification proceeding that began more than two years after the miner’s death. The evidence Old Ben wished to present was not new. (Indeed, Old Ben seems to have been .rather careless during an earlier modification proceeding, when it submitted chest x-rays of a completely unrelated person to support its arguments.) It attempted to excuse its earlier failure to consider the autopsy report that had been prepared *554 for Mr. Hilliard — which had listed pneu-moconiosis as the cause of his death — on the ground that it had been abandoned by its then lawyer, Wayne Reynolds. The ALJ was not persuaded that this adequately explained Old Ben’s actions, noting that Old Ben had not explained with particularity what the problem with counsel had been. Moreover, Old Ben certainly knew when Mr. Hilliard had died, and it had made no effort to obtain the autopsy (or, apparently, to monitor Reynolds’s efforts). These are discretionary calls, in my view. I see no abuse of discretion in the ALJ’s weighing of the entire situation, though it is quite possible that no abuse of discretion would have existed had the ALJ come out the other way.
Finally, there is the question whether the ALJ abused her discretion in refusing to require Mrs. Hilliard to grant Old Ben access to the autopsy slides. It appears that Old Ben received a copy of the autopsy report itself in January 1996. Three years later, in January 1999, it moved to obtain access to the tissue slides so that its own experts could examine them. This is the request that the ALJ denied. The DOL has suggested that this was an abuse of discretion, relying on 20 C.F.R. § 726.414 , which says that “[i]f a miner unreasonably refuses ... to provide ... the designated responsible operator with a complete statement of his or her medical history and/or authorize access to his or her medical records, ... the miner’s claim may be denied by reason of abandonment.” It is not clear, however, whether Mrs. Hilliard violated that regulation. She readily gave them the report itself, which is what would have constituted the official medical record. It was the underlying evidence that she did not release, and it does not appear that this regulation covers material like slides. More importantly, however, neither Mrs. Hilliard nor the ALJ relied on the autopsy evidence at all — not on the report, and not on the slides — and so I would find that any error the ALJ might have made was harmless. Finally, even if there were some kind of legal requirement to turn over the slides, I would find that such a requirement was subject to reasonable case management rulings, and I would find that the ALJ did not abuse her discretion in concluding that Old Ben waited too long to ask for them. If Old Ben had been so interested in the slides, it could have sought them back in 1996 when it discovered that the report came to a conclusion adverse to its position.
Ill
Old Ben and the DOL raise the specter of a world in which employers can never win modifications, should the ALJ’s decision here be upheld. With all due respect, there is a Chicken Little-like quality to that argument. There is no reason to believe that an interpretation of § 22 that adopts an “interest of justice” rule to govern exercises of discretion would lead to such a result. To the contrary, this standard ought to operate in favor of employers just as often as it does for employees. Employers yfith a good reason to modify an award will be able to do so, and they will be able to prevent employees from constantly returning trying to increase benefits or otherwise seek a more favorable outcome unless the employee has an equally good reason. An ALJ has the discretion to grant or deny a modification request raised by either party, and nothing in the system, as I believe it should be interpreted, would bias the proceedings toward either side. On the other hand, I fear that the encouragement to piecemeal litigation that is inescapable in the majority’s standard will encourage employers to come back once a year to try to deprive employees of their awards. - As between *555 the employer and the employee, it is the employer who is likely to have sufficient resources for this kind of endless proceeding. In my opinion, neither the statute nor the regulations compel such a result. I therefore respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9495084. Public record. Not legal advice.