Bethenergy Mines v. Dir. Office of Workers' Comp. , 32 F.3d 843 ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
8-15-1994
Bethenergy Mines v. Dir. Office of Workers' Comp.,
et al.
Precedential or Non-Precedential:
Docket 93-3428, 93-3429, 93-3430;93-3431, 93-3432 and 93-3463
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 93-3428, 93-3429, 93-3430,
93-3431, 93-3432 and 93-3463
BETHENERGY MINES, INC.
Petitioner No. 93-3428
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
United States Department of Labor and
CATHERINE PIERSON, widow/BERNARD,
Respondents
BETHENERGY MINES, INC.
Petitioner No. 93-3429
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
United States Department of Labor and WILLIAM LEJUENE,
Respondents
BETHENERGY MINES INC.
Petitioner No. 93-3430
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
United States Department of Labor and THOMAS GRASSA,
Respondents
BARNES AND TUCKER COMPANY,
Petitioner No. 93-3431
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
United States Department of Labor and GEORGE LUBERT,
Respondents
BETHENERGY MINES INC.
Petitioner No. 93-3432
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
United States Department of Labor and
MARY BOHACHICK, widow/SAMUEL,
Respondents
BETHENERGY MINES, INC.
Petitioner No. 93-3463
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
United States Department of Labor and Industry;
PATRICIA J. DOTY, (o/b/o James Levanoff Deceased),
Respondents
On Petitions for Review of Orders of the Benefits Review Board
(Benefits Review Board Nos. 92-2703/04/05/2685/86 & 93-252 BLA)
Argued May 6, 1994
Before: SLOVITER, Chief Judge, HUTCHINSON, Circuit Judge,
and DIAMOND,* District Judge
(Filed August 15, 1994)
John J. Bagnato (Argued)
Spence, Custer, Saylor, Wolfe & Rose
Johnstown, PA 15907
Mari Ann Hathaway
Ceisler, Richman, Smith
*
. Hon. Gustave Diamond, United States Senior District Judge for
the Western District of Pennsylvania, sitting by designation.
Washington, PA 15301
Of Counsel
Attorneys for Petitioners
Thomas S. Williamson, Jr.
Solicitor of Labor
Donald S. Shire
Assistant Solicitor
Michael J. Denney
Counsel for Enforcement
Deborah E. Mayer (Argued)
United States Department of Labor
Office of the Solicitor
Washington, DC 20210
Attorneys for the Director,
Office of Workers' Compensation Programs
OPINION OF THE COURT
SLOVITER, Chief Judge.
The issue presented by this appeal is a jurisdictional
one pending as well in three other courts of appeals1 - whether
the administrative bodies that adjudicate black lung claims or
the district courts have jurisdiction to resolve disputes
regarding interest assessed against coal mine operators on
reimbursements to the Black Lung Disability Trust Fund (the
"Fund") for medical benefits that the Fund previously paid to or
on behalf of claimants. Underlying this jurisdictional dispute
is a significant legal issue, which is the authority of the
Department of Labor (the "Department") to assess interest against
1
. The other cases pending are Sea "B" Mining Company v.
Director, OWCP, No. 93-1784 (4th Cir., filed June 22, 1993,
argued Apr. 12, 1994); B & S Coal Company v. Director, OWCP, 93-
3665 (6th Cir. filed June 21, 1993); Peabody Coal Company v.
Director, OWCP, 93-2597 (7th Cir. filed July 22, 1993, argued
Feb. 23, 1994).
operators and carriers on such claims for the period before the
responsible party has had the opportunity to review the data
supporting the medical benefit. Because of the jurisdictional
dispute, the legal issue has not been presented here or in the
other three circuits, despite the apparent agreement among the
parties that there is not likely to be much litigation over the
amount of interest once that underlying issue is finally
resolved.
In the matter before us, the Benefits Review Board (the
"Board" or "BRB") determined that these actions may only be heard
by the district courts. Accordingly, it affirmed the decision of
the Administrative Law Judge dismissing the actions. BethEnergy
Mines, Inc. and Barnes and Tucker Company, coal mine operators,
filed this petition for review as part of a series of test cases.
This court has jurisdiction over petitions for review of final
orders of the Benefits Review Board pursuant to 33 U.S.C. §
921(c) (1988).
I.
A.
Background
The Black Lung Benefits Act ("the Act"), 30 U.S.C. §
901 et seq., establishes a comprehensive legislative scheme
designed to compensate miners for medical problems and
disabilities related to pneumoconiosis (black lung disease).
The Act incorporates by reference the claim management
and adjudication procedures of the Longshore and Harbor Workers'
Compensation Act (the "Longshore Act") to govern the Department
of Labor's administration of Part C of the Act (the employer-
funded federal workers' compensation program applicable to
employees who have become totally disabled or died due to
pneumoconiosis.) See 30 U.S.C. § 932(a) (incorporating most of
33 U.S.C. §§ 901-950); see also Louisville and Nashville R.R. Co.
v. Donovan, 713 F.2d 1243, 1247 n.2 (6th Cir. 1983), cert.
denied, 466 U.S. 936 (1984).
In this case, our concern is with claims made to the
Department of Labor for medical benefits only. Therefore, there
is no need to review the history of the involvement of the Social
Security Administration and the manner of resolving claims made
for miners' disability or death, all of which has been reviewed
in prior cases. See, e.g., Pittston Coal Group v. Sebben, 488
U.S. 105 (1988); Mullins Coal Co. v. Director, OWCP, 484 U.S. 135
(1987); Elliot Coal Mining Co. v. Director, OWCP, 17 F.3d 616,
627-628 (3d Cir. 1994); Helen Mining Co. v. Director, OWCP, 924
F.2d 1269, 1271-72 (3d Cir. 1991).
As is set forth in these cases, the Act established the
Black Lung Disability Trust Fund, which is financed by a
manufacturer's excise tax on coal. That Fund pays benefits
directly to claimants not only when there is no responsible
operator, but also before a responsible operator is determined
and in other circumstances established by law. See e.g., Elliot
Coal, 17 F.3d at 628; Helen Mining, 924 F.2d at 1272; 20 C.F.R. §
725.522 (1993).
In certain circumstances, as those presented in these
cases, when miners seek payment of medical expenses incurred for
treatment of pneumoconiosis ("medical benefits only" or "MBO"
claims), the Fund pays claimants before operator liability is
determined, see 20 C.F.R. § 725.701A(b), and the Department will
seek reimbursement from the responsible operator. Sometime in
1988, the Department adopted a new agency policy to collect
interest on medical expenditures made by the Fund and later
reimbursed by the operator or carrier. Pursuant to this policy,
the date on which the Fund paid the medical bill is the accrual
date for interest. See 20 C.F.R. § 725.608(b).
B.
Proceedings in these cases
Although the facts of each of the six consolidated
cases vary somewhat, those common to all make them appropriate
for joint disposition here. In each case, after determination
that a valid MBO claim had been submitted, the district director2
approved the claimant's request for medical treatment expenses;
determined that one of the petitioners was the responsible
operator; and, either some time before or after determination of
the responsible operator, received a request from the claimant or
his medical providers for payment for specific bills or treatment
which, after the Department or its agent approved, was paid by
the Trust Fund.3 Thereafter, the Department sought reimbursement
from the operator. In many of the cases the operator, as is its
right, requested documentation for the medical expenses. In all
of the cases before us, the operator ultimately reimbursed the
Fund for its payment (referred to by the Operators as
reimbursement of the "principal" paid.)
Following the operator's acceptance of responsibility
for the MBO, the Department of Labor, pursuant to Department
2
. By "district director" we refer to the initial screening
officer of the Office of Workers' Compensation Programs of the
Department of Labor. This individual may also be referred to as
the "deputy commissioner" in the relevant statutes. See, e.g.,
33 U.S.C. § 919(a) ("a claim for compensation may be filed with
the deputy commissioner").
3
. The determination that the miner is eligible for medical
benefits does not automatically entitle the claimant to payment
of specific medical expenses, which must be shown to be related
to pneumoconiosis.
policy, billed the operator for the interest due on the
underlying claim. As noted above, the interest was assessed from
the date the Fund paid the claim. In the cases before us, it
appears that this interest period may have covered from five to
nine years. App. at 94-97; App. at 138, 140, 141. In each case,
the operator challenged this assessment of interest and the case
was referred to Administrative Law Judge G. Marvin Bober, who
consolidated the six cases for joint resolution. The ALJ,
believing that the issue was governed by the decision of the
Court of Appeals for the Sixth Circuit in Vahalik v. Youghiogheny
& Ohio Coal Co., 970 F.2d 161 (6th Cir. 1992), dismissed the
cases for lack of jurisdiction in September 1992.
The Operators appealed the six cases to the Benefits
Review Board, which held them in abeyance pending its resolution
of Brown v. Sea "B" Mining Co., 17 Black Lung Rep. (MB) 1-115,
1993 WL 172283 (Ben. Rev. Bd. 1993) (en banc). After it decided
Sea "B", the Board dismissed these cases for lack of subject
matter jurisdiction. The Operators appealed this decision to
this court, filing petitions for review in the six cases on
September 2 and 15, 1993.
II.
The existence of subject matter jurisdiction is a
question of law over which this court exercises plenary review.
See Connors v. Tremont Mining Co., 835 F.2d 1028, 1029 (3d Cir.
1987).
A.
Right to a Hearing Before an ALJ
The Operators argue that the failure of the ALJ and the
Board to exercise jurisdiction over this case has denied them the
right to a hearing and review thereof as guaranteed in 33 U.S.C.
§§ 919 and 921 (1988). The Act provides that claims are filed
with the deputy commissioner who has "full power and authority to
hear and determine all questions in respect of such claim." 33
U.S.C. § 919(a) (emphasis added). Should any interested party so
desire, the deputy commissioner must order a hearing before an
administrative law judge. See 33 U.S.C. § 919(c) and (d); Pyro
Mining Co. v. Slaton, 879 F.2d 187, 190 (6th Cir. 1989)
("according to statute, [interested parties] have a right to a
hearing before an administrative law judge on all questions in
respect of a claim.").
The Act provides that following this determination
there may be an appeal to the Board, 33 U.S.C. § 921(b)(3), and a
petition for review thereafter to the court of appeals, id. §
921(c). See Krolick Contracting Corp. v. Benefits Review Bd.,
United States Dep't of Labor, 558 F.2d 685, 687-88 (3d Cir.
1977). The question before this court, then, is whether the
Operators' challenge to the interest assessed against them is a
"question[] in respect of [a] claim" such that it must be
referred to an ALJ pursuant to 33 U.S.C. § 919 or whether, as the
Department argues, the challenge concerns a collateral attack on
a final compensation order, jurisdiction over which rests in the
district court pursuant to 30 U.S.C. § 934(b)(4)(A).
The Operators recognize that after a black lung claim
is determined on the merits by either an award or acceptance of
liability by an operator, they are obliged to reimburse the Fund
for the amount paid plus what the Operators term post-judgment
interest, i.e., interest which runs from 30 days after the award
or the acceptance of liability. See 30 U.S.C. § 932(d).
The Operators contend that the charges assessed against
them here constitute prejudgment interest, which is not
authorized under the Act. See, e.g., Bethlehem Mines Corp. v.
Director, OWCP, 766 F.2d 128, 131 (3d Cir. 1985); Youghiogheny &
Ohio Coal Co. v. Warren, 841 F.2d 134, 138-39 (6th Cir. 1987).4
They reason that because these challenges to interest assessed
require interpretation and application of the Act and its
enforcement scheme, they constitute "questions in respect of such
claim."
The Department's position is that because the interest
assessment involves a dispute solely between the Department and
the operator, it does not constitute a question "in respect of
such claim." The Department's position is that the "claim"
within the meaning of section 919, which triggers the right to
review through the administrative process, is the claim on behalf
of the disabled or deceased miner (the claimant).
4
. The Department disputes the characterization of the interest
assessed as "prejudgment" for various reasons. Because the
nature of this interest is not before the court at this time, we
need not consider the appropriate classification thereof and use
the term for convenience.
This construction of "claim" has statutory support.
The statute provides that a claim must be filed with "the deputy
commissioner in the compensation district in which such injury or
death occurred." 33 U.S.C. § 913(a). Section 919(d), which
governs "Procedure in respect of claims," provides that "a claim
for compensation may be filed with the deputy commissioner . . .
any time after the first seven days of disability following any
injury, or at any time after death." 33 U.S.C. § 919(a).
Because the "claim" to which these sections refer is that of the
injured or deceased miner, the administrative procedure outlined
in the subsections (c) and (d) of section 919 is available only
to a party (usually the employer-operator or its carrier) who
seeks to challenge some aspect of the miner's "claim," such as
the miner's eligibility for some or all of the compensation
sought or granted.
It is not disputed that determinations of underlying
operator liability in MBO cases raise questions in respect of a
claim. Though framed as contests between the particular operator
and the Fund over reimbursement, these determinations provide the
means by which an operator may challenge the validity of all or
part of the miner's initial claim, including each medical
expense, even though it has already been paid by the Fund.
Proceedings before the ALJ and the Board in these matters thus
center on the evaluation of the claimant's entitlement to
payments already disbursed by the Fund. See, e.g., Stiltner v.
Doris Coal Co., 14 Black Lung Rep. (MB) 1-116, 1990 WL 284122
(Ben. Rev. Bd. 1990) (en banc) (affirming award of medical
benefits and thus ordering operator and carrier to reimburse the
Fund based on determination that miner's respiratory conditions
were related to coal mine employment), rev'd in part, Doris Coal
Co. v. Director, OWCP, 938 F.2d 492 (4th Cir. 1991); Skaggs v.
Imperial Colliery Co., 14 Black Lung Rep. (MB) 3-311 (Admin. Law
Judge 1990) (evaluating employer's challenge to certain medical
bills already paid based on its contention that they were not
related to miner's pneumoconiosis); Wright v. Beth-Elkhorn Coal
Corp., 14 Black Lung Rep. 3-692 (MB) (Admin. Law Judge 1990)
(employer not liable to reimburse Fund for medical expenses
because miner was not eligible for them and Fund had paid them
erroneously).
These underlying liability determinations stand in
sharp contrast to the Operators' challenge to the Department's
assessment of interest against them for the period before they
accepted responsibility for the medical benefits. The interest
sought is not to benefit the claimant, nor is it sought on behalf
of the claimant. It is sought merely to reimburse the Fund for
the time-value of money expended by the Fund when it paid for the
miner's medical benefits. This latter dispute is one exclusively
between the Operators and the Fund. As a result, although the
demand for interest is predicated in the first instance on the
fact that the miner filed the claim, it cannot be said to raise
any "questions in respect of such claim," all of which have been
resolved by then.
It follows that sections 919 and 921 do not provide the
Operators the right to a hearing before an administrative law
judge, nor to an appeal to the Benefits Review Board in these
interest cases. Instead, the Operators' opportunity to challenge
this interest assessment is controlled by those statutory
provisions concerning access to the district courts for
enforcement of black lung liability.
B.
District Court Jurisdiction
District court jurisdiction arises under the Act under
two statutory provisions: 33 U.S.C. § 921(d), one of the
incorporated provisions of the Longshore Act, and 30 U.S.C. §
934, a provision within the Black Lung Act itself. In Connors v.
Tremont Mining Co., 835 F.2d 1028 (3d Cir. 1987), we set forth
the requirements for district court jurisdiction under 33 U.S.C.
§ 921(d) (Section 21 of the Longshore Act) as follows: "there
must be . . . first, [a] final compensation order [that] has been
effectuated, and second, . . . the responsible operator has
failed to comply with that compensation order." Id. at 1031.
District court access is also provided by 30 U.S.C. §
934 (Section 424 of the Black Lung Act). Subsection (b)(2)
provides:
If any operator liable to the fund under paragraph
[934(b)(1)] refuses to pay, after demand, the amount of
such liability (including interest), then there shall
be a lien in favor of the United States for such amount
on all property and rights to property, whether real or
personal, belonging to such operator.
30 U.S.C. § 934(b)(2) (emphasis added). Section 934(b)(4)(A)
provides:
In any case where there has been a refusal or neglect
to pay the liability imposed under paragraph [934(b)]
(2), the Secretary may bring a civil action in a
district court of the United States to enforce the lien
of the United States under this section with respect to
such liability or to subject any property, of whatever
nature, of the operator, or in which he has any right,
title or interest, to the payment of such liability.
Id. (emphasis added).
We have recognized the interaction between the two
sections giving the district courts enforcement jurisdiction as
follows:
[i]f an operator fails to pay an award of disability
benefits for which he is liable, the successful
claimant or the Secretary may bring an action in
district court to enforce the order. See 33 U.S.C. §
921(d). Moreover, the Secretary may bring an action to
enforce a lien against an operator who fails to make
payments to the Black Lung Disability Trust Fund. 30
U.S.C. § 934(b)(4)(A).
Compensation Dep't of Dist. Five, United Mine Workers of America
v. Marshall, 667 F.2d 336, 339 n.6 (3d Cir. 1981). Thus, 33
U.S.C. § 921(d) enforces the operator's liability to pay benefits
and 30 U.S.C. § 934(b) enforces the operator's liability to repay
the Trust Fund.
There is no doubt that the Operators have failed to pay
the amounts assessed in these six consolidated cases. They
argue, however, that an award is not final under either section
921(d) or 934(b) unless the calculation of the amount due is
finally decided, citing Sun Shipbuilding & Dry Dock Co. v.
Benefits Review Board, United States Dep't of Labor, 535 F.2d
758, 761 (3d Cir. 1976) (per curiam). In Sun Shipbuilding, we
held that a decision is not final where the "extent of damage
remains undetermined." 535 F.2d at 760. Here, in each case the
amount of underlying liability for the MBO has been clearly and
finally determined and is not challenged by the operators. Thus,
Sun Shipbuilding is inapposite.
The Operators also argue that the district director's
determinations of interest are not final because they were
afforded no opportunity to contest them. Whatever persuasiveness
this claim may have in other contexts, in these cases the
Operators have withdrawn their controversions to the specific
medical expenses. Thus, there was a final determination in each
case.
We do not disagree that the Act gives the operators no
right to challenge the interest determination in the
administrative process. Once the liability of the particular
operator and the medical expenses for each claimant has been
determined, the operator's liability for that amount plus
interest becomes fixed as a matter of law. See, e.g., 30 U.S.C.
§ 934(b)(1) (once the operator's liability is determined, "then
the operator is liable to the United States for repayment to the
fund of the amount of such benefits the payment of which is
properly attributed to him plus interest thereon."). Indeed,
determination of the amount of interest due is a ministerial
calculation because the rate is set by law. See 30 U.S.C. §§
934(b)(5)(A) and (b)(5)(B) (incorporating by reference schedule
provided in 26 U.S.C. § 6621). It follows that the Department
and the Board are correct that the Operators will have the
opportunity to raise their challenge to the imposition of
interest as a defense to a district court action brought by the
Secretary for enforcement.5
Our determination that the district courts, and not the
Office of the Administrative Law Judges and the Board, have
jurisdiction over the claims presented here is supported by the
recent opinion of the Court of Appeals for the Sixth Circuit in
Youghiogheny & Ohio Coal Co. v. Vahalik, 970 F.2d 161 (6th Cir.
1992). There, faced with a similar, albeit not precisely the
same, situation which this court now considers, the Court of
Appeals determined that neither the ALJ nor the Board had
jurisdiction over the claim of the Department for interest in a
medical benefits case, holding that the Department must file an
action in the district court seeking enforcement of its lien and
collection on the liability. In Vahalik the operator had paid
the initial interest assessment and then received a second
assessment on the ground that the first had been based on a
miscalculation. The operator resisted payment, asserting the
common law defenses of "account stated and settled" and equitable
estoppel. Although neither the ALJ nor the BRB questioned their
own jurisdiction over the dispute, when the matter was on review
before the Court of Appeals the Department challenged the
jurisdiction assumed by the ALJ and the BRB over an operator's
objection to interest assessed on reimbursement paid to the Fund.
5
. We take no position as to whether the Operators themselves
might seek to invoke the district court's jurisdiction by some
affirmative filing.
The Vahalik court agreed, reasoning that "[o]nce final
eligibility and liability determinations are made, the benefits
of agency expertise become irrelevant, and jurisdiction is vested
in the district courts for the enforcement of agency orders."
Id. at 162.
This does not mean that the Operators will not have an
opportunity to challenge the assessment of interest, either on
the basis of a legal challenge or on the basis of a disagreement
as to calculation. In fact, in Reich v. Youghiogheny & Ohio Coal
Co., No. C2-92-793, (S.D. Ohio May 13, 1994), the enforcement
action brought by the Department under 30 U.S.C. § 934 to collect
the interest at issue in the Vahalik case, the district court
thoroughly addressed the challenges raised by the operator to the
imposition of interest allegedly due to the Fund. Without
commenting on the correctness of the district court's decision
regarding the validity of the interest claim (an issue not before
us today), we note that the proceeding under that section
provided the defendant a full and fair opportunity to litigate
its challenges to the interest assessed.
Thus we are satisfied that a district court enforcement
proceeding would provide sufficient opportunity to the operators
to raise their challenges to the interest assessments. In fact,
the Court of Appeals for the First Circuit has recently commented
that the enforcement proceeding established by 30 U.S.C. § 921
permits several possible bases for challenging the award in the
district court:
it is . . . clear that the employer may contest factual
allegations upon which the section 921(d) enforcement
petition necessarily depends, including the main issue
whether the employer is in default. Moreover, arguably
at least, the employer might be entitled to raise
factual challenges relating to (1) the amount in
default, (2) whether new evidence indicates that the
initial compensation order was procedurally defective,
or otherwise not "in accordance with law," or (3)
employee conduct that might tilt the fundamental
balance of equities in favor of judicial restraint.
Williams v. Jones, 11 F.3d 247, 253 (1st Cir. 1993) (emphasis and
footnotes omitted). The court based this determination on its
recognition that a section 921(d) proceeding represents the
party's "first and only forum for a full hearing of such factual
disputes prior to the issuance of an injunctive enforcement
order, with its attendant exposure to coercive contempt
proceedings." Id. at 254. Thus, we see no reason to conclude
that the Operators will not be given a fair opportunity to
challenge the validity of the interest assessments in an
enforcement proceeding, whether under 33 U.S.C. § 921 or 30
U.S.C. § 934.
Finally, the Operators argue that policy rationales
weigh against a rule that would vest jurisdiction in this case
and others like it in the district courts. They argue that there
are hundreds of cases which present similar facts, and that
Congress could not have intended that these cases be tried in the
district courts. However, at oral argument, the Operators
conceded that once the issue of the authority of the Department
to assess what they term prejudgment interest is decided by a
court of appeals, either on appeal from a district court or via
petition from the Benefits Review Board, few, if any, cases
concerning the imposition of interest will arise.
Thus, the Operators' policy argument is reduced to a
preference for having the determination of the interest issue
determined in an administrative proceeding, apparently because it
is less expensive. Even though, as noted above, it is not likely
that there will be many grounds for challenging an interest award
following determination of the threshold issue, we assume that
there may be indeed a number of such instances. Furthermore, we
assume that there may be valid reasons to prefer the
administrative process for determination of minor money claims
over the adjudication of such cases by the district courts. In
the cases before us, the amount of interest assessed ranged from
$70.03 to $25,671. However, it is not our view as to the
appropriate forum that is determinative. Instead, we are dealing
with Congress's scheme, and we are not free to make a decision
based on our judgment in the matter. If the operators have
policy considerations that they believe are persuasive, their
resort must be to Congress.
III.
For the foregoing reasons, we will deny the petition
for review of BethEnergy and Barnes and Tucker because we agree
with the Board that it lacked subject matter jurisdiction over
this dispute.