*1 Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.
No. 98-2731 affirmed and No. 99-1057 dismissed by published opin- ion. Judge Michael wrote the opinion, in which Judge Luttig and Judge Motz joined.
_________________________________________________________________ COUNSEL
ARGUED: Mark Elliott Solomons, ARTER & HADDEN, L.L.P., Washington, D.C., for Petitioner. Elizabeth Hopkins, UNITED STATES DEPARTMENT OF LABOR, WASHINGTON, D.C., for Respondents. ON BRIEF: Laura Metcoff Klaus, ARTER & HAD- DEN, L.L.P., Washington, D.C., for Petitioner. Henry L. Solano, Solicitor of Labor, Allen H. Feldman, Associate Solicitor for Special Appellate and Supreme Court Litigation, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents. OPINION
MICHAEL, Circuit Judge:
Betty B Coal Company filed petitions for review of two orders of the Department of Labor's Benefits Review Board (BRB), each of which resolved motions to reconsider the BRB's affirmance of an award of black lung benefits to Art Stanley, a now-deceased coal miner. We dismiss the second of the petitions for lack of jurisdiction. However, we do have jurisdiction over the first petition, and our review of that petition leads us to affirm the award of benefits. Our affirmance proceeds through several steps. First, we hold that the Department of Labor properly construed Stanley's second claim for benefits to be a request for modification made within the one-year time limit. As we will explain more fully, Stanley filed this second claim more than one year after his first claim was denied, but within one year after the denial of a first request for modification. We defer to a reasonable administrative interpretation of the governing statute to the effect that such a second claim is a timely modification request. Second, we conclude that the administrative proceedings through which Stanley was awarded benefits did not deprive Betty B of due *3 process of law. Finally, we hold that the agency properly augmented Stanley's benefits to account for his adult son, who was disabled. I.
The procedural history of this case is both lengthy and complex. We will describe this history in some detail because it, rather than the merits of the miner's claim, is the focus of the coal company's argu- ments. Twenty years ago, on May 7, 1979, Art Stanley filed a claim for benefits under the Black Lung Benefits Act (the Act), 30 U.S.C. § 901 et seq. A Department of Labor claims examiner denied the claim on July 1, 1980. The form denial letter advised Stanley that within sixty days he could submit additional evidence or request a hearing before an administrative law judge. It also informed him that he could seek "reconsideration" of the denial within a year if he could show that his condition had changed or that "a mistake was made when [his] claim was denied." (In using the term "reconsideration," the letter was refer- ring to the Act's modification procedure, which we discuss in part III.)
Stanley submitted additional evidence on September 16, 1980, out- side of the sixty-day period. On October 3, 1980, the claims examiner reiterated the denial, "administratively clos[ed]" the case, and again advised Stanley that he could seek "reconsideration," that is, modifi- cation, for up to a year after "our initial finding." Stanley did not wait long; he requested modification on October 9, 1980. Within a week, on October 16, the claims examiner contacted Stanley's lawyer by telephone and advised him that the claim would remain denied. Eleven months later, on September 16, 1981, Stanley filed a new claim, a claim that would be construed as a request for modification of the October 16, 1980, denial. As a result of this new filing, the claims examiner, on March 9, 1982, made an initial finding of eligi- bility and identified Betty B as the responsible operator. Betty B filed a controversion to the claim. The case then languished for nearly five years awaiting an evidentiary hearing. A hearing was finally held before an ALJ on January 7, 1987. On July 27, 1987, the ALJ denied *4 benefits. In deciding the claim, the ALJ applied the permanent regula- tions at 20 C.F.R. Part 718. Stanley appealed the ALJ's decision to the BRB. The Director of the Office of Workers' Compensation Programs filed a cross-appeal.
The Director contended that the ALJ erred by analyzing the claim under the permanent regulations rather than under the interim regula- tions at 20 C.F.R. Part 727. On February 26, 1990, the BRB agreed with the Director and remanded the claim for reconsideration under the interim criteria. Eighteen months later, on October 29, 1991, the ALJ issued a new decision awarding benefits. Betty B appealed, and the case went before the BRB for a second time.
Stanley died of pneumonia on April 10, 1993.
On April 19, 1994, the BRB affirmed the award, but remanded for recalculation of the date of onset of disability. Just three months later, on July 29, 1994, the ALJ responded to the remand with an order set- ting September 1, 1981, as the date of onset. In addition, the ALJ cor- rected an oversight in his 1991 decision and augmented the benefits to account for Stanley's disabled adult son, Roy Dean Stanley. Thereafter, the procedural entanglement went from bad to worse.
On July 28, 1994, a day before the ALJ's order on remand, Betty B had mailed its "Motion for Leave to File Employer's Brief on Remand and Establish Briefing Schedule." Though he had already rendered a decision, the ALJ granted Betty B's motion on August 4, 1994. Perhaps unsure of how to preserve its rights, Betty B appealed the ALJ's July 29, 1994, decision to the BRB. On December 6, 1994, the ALJ issued a "memorandum" noting that Betty B had not filed the brief permitted by his August 4, 1994, order, but concluding that because of Betty B's appeal to the BRB, he no longer had jurisdiction.
The Director then filed a motion with the BRB asking it to clarify the status of the case. The BRB responded by cutting the knot: it con- strued Betty B's motion for leave to file a brief with the ALJ as a motion to reconsider the ALJ's July 29, 1994, decision, and it dis- missed Betty B's appeal as premature. Betty B then filed its brief with the ALJ.
Because of the intervening retirement of the original ALJ, the case was reassigned to a different one, who on October 7, 1996, issued an *5 order denying reconsideration. For the fourth time, the case was appealed to the BRB, and the BRB affirmed the award of benefits on October 23, 1997. Undaunted, Betty B filed a timely motion for reconsideration with the BRB. On September 30, 1998, the BRB issued an order granting Betty B's motion for reconsideration, but it rejected all of Betty B's assertions of error and reaffirmed its prior rulings in all respects. Betty B then filed a timely petition for review (No. 98-2731) of the September 30, 1998, order in this court and a second motion for reconsideration before the BRB. On December 18, 1998, the BRB summarily denied the second reconsideration request. That denial prompted Betty B to file another petition for review (No. 99-1057) in this court on January 13, 1999.
II.
Although none of the parties challenges our jurisdiction over the
petitions for review, we believe that substantial questions of jurisdic-
tion exist. As a consequence, we have a special obligation to satisfy
ourselves, before deciding anything substantive, that we do have
jurisdiction. Mitchell v. Maurer ,
We begin with No. 99-1057, the petition filed after the BRB sum-
marily denied Betty B's second motion for reconsideration. Ordinar-
ily, a petition for review of a final order of the BRB must be filed in
the court of appeals within sixty days of the order. 33 U.S.C. § 921(c)
(1994); 20 C.F.R. § 802.410(a). However, if a timely motion for
reconsideration is filed with the BRB, the sixty-day period "will run
from the issuance of the Board's decision on reconsideration." 20
C.F.R. § 802.406. The Sixth and Seventh Circuits have held that sec-
ond and successive motions for reconsideration do not further toll the
period for filing a petition for review. Midland Coal Co. v. Director,
OWCP,
Fortunately for Betty B, however, the BRB granted that motion for reconsideration, even though it denied any relief. This action makes all the difference insofar as the reviewability of the order is con- cerned.
When the [agency] reopens a proceeding for any reason and,
after reconsideration, issues a new and final order setting
forth the rights and obligations of the parties, that order --
even if it merely reaffirms the rights and obligations set
forth in the original order -- is reviewable on its merits.
Locomotive Engineers,
It is irrelevant that the [agency's] order refusing reconsid- eration discussed the merits of the [movants'] claims at length. Where the [agency's] formal disposition is to deny reconsideration, and where it makes no alteration in the underlying order, we will not undertake an inquiry into whether reconsideration "in fact" occurred. In a sense, of course, it always occurs, since one cannot intelligently rule upon a petition to reconsider without reflecting upon, among other things, whether clear error was shown. It would hardly be sensible to say that the [agency] can genuinely deny reconsideration only when it gives the matter no thought; nor to say that the character of its action (as grant or denial) depends upon whether it chooses to disclose its reasoning. Rather, it is the [agency's] formal action, rather than its dis- cussion, that is dispositive.
Id. at 280-281. Unlike the agency in Locomotive Engineers, the BRB here formally "granted" reconsideration in its September 30, 1998, order, even though it denied any relief to Betty B. We therefore have jurisdiction in No. 98-2731. III.
The first substantive issue in this case involves the Act's so-called "modification" procedure. Betty B argues that modification is only available for one year after the first denial of a claim, while the Direc- tor argues that each denial of modification resets the clock and starts the one-year period anew. Before going on to the particulars of this disagreement, we should describe "modification" generally.
Section 22 of the Longshore and Harbor Workers' Compensation Act (Longshore Act) provides:
Upon his own initiative, or upon the application of any party in interest . . . on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejec- *8 tion of a claim, review a compensation case . . . [and] issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. 33 U.S.C. § 922 (1994) (emphasis added). 1 Section 22 is incorporated into the Black Lung Benefits Act by 30 U.S.C. § 932(a) (1994), and a regulation to implement it has been promulgated by the Department of Labor. 20 C.F.R. § 725.310.
This modification procedure is extraordinarily broad, especially
insofar as it permits the correction of mistaken factual findings. Sec-
tion 22 "vest[s] a deputy commissioner with broad . . . discretion to
correct mistakes of fact, whether demonstrated by wholly new evi-
dence, cumulative evidence, or merely further reflection on the evi-
dence initially submitted." O'Keeffe v. Aeroject-General Shipyards,
Inc.,
Black lung proceedings, especially at early stages, are "by nature
informal." Consolidation Coal Co. v. Borda ,
In terms of the statutory language, the issue is whether "the rejec-
tion of a claim" includes the denial of a request for modification. In
2
The BRB agrees with the Director's position. See Garcia v. Director,
OWCP, 12 BLR 1-24 (BRB 1988). In any event, it is the Director's, and
not the BRB's, interpretation to which we owe deference. Potomac Elec.
Power Co. v. Director, OWCP,
Furthermore, the limited case law on the subject also supports the
Director. Our court has said, albeit in dictum, that the Director's view
on this issue is correct. In Lisa Lee Mines the claimant had not filed
a timely request for modification. Instead, he filed a new claim three
*11
years after the denial of his initial one. Lisa Lee Mines,
This scenario belongs to that genre of horribles that seems
impressive in academic debate but has little relevance to real
life. Any claimant who wants to be a perpetual litigator can
already be a perpetual litigator, and in a much easier fash-
ion. The day before [a year runs from the prior denial], the
miner may file a request for "modification" of the earlier
denial.
Id. at 1364. Thus, we assumed that the modification process is avail-
able multiple times. Though not controlling here, this dictum of our
en banc court at the very least attests to the reasonableness of the
Director's understanding of the statute and regulations.
3
3
In at least two cases in which multiple modification requests were
made, we appear to have assumed that the intervening denials of modifi-
cation were of no consequence. See Curry v. Beatrice Pocahontas Coal
Co.,
Keating, a recent decision of the Third Circuit, lends more support
to the Director. There, a miner's widow had filed successive requests
for modification. The one before the court was timely if the Director's
interpretation of § 22 is correct, but untimely if it is not. The ALJ to
whom the request was presented "chastised the widow, stating that the
modification process `does not permit continuous reweighing of testi-
mony by Judge after Judge until a friendly factfinder is found.'"
Keating,
IV.
Next, Betty B asserts that it has been denied due process of law.
It complains generally about the quality of the process before the BRB and the ALJs, and it asserts specifically that it had a due process right to reopen the record and to develop and present additional evi- dence following the BRB's 1990 holding that the interim regulations applied to the claim.
This court has not hesitated to shield operators and their insurers
from liability when their core due process right to timely notice of the
proceeding has been violated. See, e.g., Consolidation Coal Co. v.
Borda,
Betty B cites Harlan Bell Coal Co. v. Lemar,
Due process of law does not assure to a [citizen] the inter- pretation of laws by the executive officers . . . as against their interpretation by the courts . . . or relief from the con- sequences of a misinterpretation by either. . . .[I]t is the province of the courts to interpret the laws . . . and he who acts under them must take his chance of being in accord with the final decision. And this is a hazard under every law, and from which or the consequences of which we know of no security.
Thompson v. Kentucky,
We go from this overview to the circumstances of this case. When
we look at the hearing transcript of January 7, 1987, we immediately
discover that Betty B was confronted with and attempted to fend off
the suggestion that the interim regulations applied to Stanley's claim
and that the company was aware of the 1979 claim and of its disposi-
tion. We also discover that the applicability of the interim regulations
was an issue in the very first appeal to the BRB. Although Stanley's
appeal simply attacked the ALJ's factual findings, the Director noted
his own appeal of the denial of benefits and urged application of 727
under Garcia.
5
Finally and most importantly, we see that Betty B's
professed desire to develop new evidence is of very recent vintage.
5
Notwithstanding Betty B's suggestions to the contrary, the Director
had standing to participate in the appeal. See 30 U.S.C. § 932(k) ("The
Secretary shall be a party in any proceeding relative to a claim for bene-
fits."). In a case that denied the Director standing under the Longshore
Act as a "person adversely affected or aggrieved," the Supreme Court
explicitly recognized that Congress bestowed standing on the Secretary
of Labor in all black lung proceedings. Director, OWCP v. Newport
News Shipbuilding and Dry Dock Co.,
[T]he first major disagreement I apparently have with the Claimant is regarding which set of standards this claim is to be adjudicated under.
[Claimant's lawyer] has made reference to the presump-
tion and he has made reference to the interim presumption
criteria. My file reflects that the application which is being
adjudicated here today, was filed on September 16, 1981,
which makes this a 718 claim, although there was a prior
claim.
That claim was denied and the case was closed out with-
out the requisite appeals by the Claimant. I think that is the
first and most important part to this case.
(Emphasis added.) Thus, unlike in Borda, Betty B cannot claim igno-
rance of the prior claim that has been kept alive through the modifica-
tion procedure or of its opponent's argument for application of the
interim criteria. Betty B's lawyer may have expected that the com-
pany would easily prevail on the issue of whether the interim criteria
6
The § 718.305 presumption differed from the Part 727 interim pre-
sumption in that it required a longer duration of coal mine employment
(fifteen rather than ten years) and could be invoked only by evidence of
a totally disabling respiratory or pulmonary impairment. Upon such
proof the existence of pneumoconiosis and its contribution to the impair-
ment were presumed, subject to affirmative rebuttal of either presumed
fact. Consequently, if the cause of impairment was simply unknown, the
presumption was not rebutted. See 20 C.F.R.§ 718.305(d); Barber v.
Director, OWCP,
Regardless of whether Betty B was entitled to reopen the record and submit new evidence, the record discloses that it made no timely effort to do so. Even on the first referral of a claim to an ALJ, hear- ings are not automatic; a party must request a hearing in writing. 20 C.F.R. § 725.451. Once a hearing has been held, the ALJ may reopen the hearing "for good cause shown." 20 C.F.R.§ 725.454.
Betty B neither asked the ALJ for a reopening of the hearing nor
suggested that reopening was compelled. On February 26, 1990, the
BRB remanded the claim for reconsideration under the interim
criteria. The record is then silent until the ALJ's award of benefits
eighteen months later. Surely the ALJ could have by then assumed
that anyone who wanted to reopen the record would have long since
asked for that to be done. Betty B petitioned the BRB for review of
that award of benefits. In its brief, dated May 19, 1992, it did not
assert any need for further evidentiary development. Moreover, it did
not suggest that it had been refused a new hearing or somehow pre-
vented from requesting one.
When the BRB remanded yet again in April 1994, Betty B did file
a motion requesting an opportunity to provide input. However, this
motion was a simple and short request that Betty B be allowed to file
a brief. No evidentiary hearing was requested. The ALJ granted Betty
B's request to file a brief, which it filed with him after the BRB dis-
missed Betty B's appeal.
7
The brief to the ALJ is more of the same.
Once again, Betty B made no request for a hearing of any kind and
made no suggestion that further evidentiary development was neces-
7
For what it is worth, Betty B had already filed a brief in the aborted
third appeal to the BRB. This brief did not raise any issue of the denial
of a due process right to develop new evidence.
*18
sary or even desirable. After reconsideration was denied by the ALJ
and the fourth trip to the BRB was under way, Betty B submitted a
brief that, at long last, asserted that a remand was required by due
process for the development of new evidence under the interim stan-
dards. This brief is dated December 4, 1996, nearly seven years after
the BRB ruled that the interim regulations applied. The BRB rejected
the due process argument "because employer failed to raise the issue
in the previous appeal, or before [the ALJ] on remand via a request
to reopen the record."
We agree with the BRB. The due process right to be heard compels
the government to listen, but not the defendant to speak. It is a right
to "choose . . . whether to appear or default, acquiesce or contest."
Mullane v. Central Hanover Bank & Trust Co.,
Finally, Betty B argues that the ALJ's order augmenting Stanley's benefits to account for his disabled adult son Roy Dean Stanley vio- lated its due process rights and was improper in any event.
To begin with, Betty B likely has no defense to augmentation on
the merits. The son's eligibility for and receipt of social security dis-
ability benefits is of record, and the regulations use the social security
definition, see 20 C.F.R. § 725.209(a)(2)(ii), to determine eligibility
for augmented black lung benefits. On the other hand, if a core viola-
tion of due process occurred, "it is no answer to say that . . . due pro-
cess would have led to the same result because [the defendant] had
no adequate defense upon the merits." Coe v. Armour Fertilizer
Works,
We turn first to the due process issue. In its opening brief Betty B asserts that it had "no opportunity to litigate Roy Dean's case at all." Petitioner's Opening Brief at 10. In its reply it contends that "when the case originally was tried, there was no need to investigate Roy *19 Dean's situation." Petitioner's Reply Brief at 11. If these assertions were accurate, they would be cause for great concern. They are not accurate, however. Betty B plainly had notice that augmented benefits were sought because augmentation for Roy Dean was alleged in the modification request filed on September 16, 1981. Moreover, at the start of the hearing, the parties and the ALJ specifically identified the augmenta- tion issue as disputed. As a result, the ALJ noted,"we will get some testimony on [the son]." Stanley testified that his son was mentally incapable of taking care of himself, received social security benefits and supplemental security income, had tried to go to school but failed, and lived at home. On cross-examination Betty B asked Stanley noth- ing about the matter, and it made no mention of Roy Dean in its clos- ing argument. Finally, in its brief on remand Betty B did not request an opportunity to develop or submit evidence about Roy Dean's enti- tlement. Instead, it rested on an assertion that the existing record was inadequate to establish his entitlement. Thus, Betty B had notice of Roy Dean's potential eligibility and an adequate opportunity to con- test it. Due process requires nothing more. We next turn to whether, irrespective of the lack of a due process violation, the augmentation of benefits was nonetheless improper. Augmentation for Roy Dean was proper, we believe.
Betty B argues that the denial of augmented benefits became final
when Stanley failed to note a cross-appeal from the ALJ's 1991 deci-
sion that awarded him benefits but neglected to mention the augmen-
tation issue. Betty B's argument would have somewhat greater force
if augmented benefits had actually and explicitly been denied by the
ALJ or if the benefits award had been allowed to become final in
1991. Instead, the ALJ failed to resolve a contested issue, and he real-
ized his error when the case was once again pending before him. We
must note that even had he actually denied augmentation and had his
order become final, the ALJ would have had a year during which he
could have modified the order on his own initiative. See 20 C.F.R.
§ 725.310(a). The BRB cited this power in holding that "administra-
tive efficiency" supported allowing the ALJ to correct his mistake
right away rather than by invoking the modification process yet again.
In short, it would require a final denial of augmented benefits and a
*20
subsequent lapse of one year to make the ALJ's error irreparable. Nei-
ther occurred here.
In the alternative, the company argues that Stanley was estopped
from asserting any claim for augmented benefits."An essential ele-
ment of any estoppel is detrimental reliance on the adverse party's
representations." Lyng v. Payne,
The petition for review in No. 99-1057 is dismissed, and the award of black lung benefits to Art Stanley is affirmed in No. 98-2731.
No. 98-2731 - AFFIRMED No. 99-1057 - DISMISSED