Helen Mining Company v. Director, Office Of Workers' Compensation ProgramsHelen Mining Company v. Director, Office Of Workers' Compensation Programs
GREENBERG, Circuit Judge.
Helen Mining Company and its insurer, Old Republic Insurance Company, petition this court for review of a decision and order of the Benefits Review Board which affirmed an administrative law judge‘s finding that Helen is liable for black lung benefits granted its former employee John Burnsworth. Helen and the Director, Office of Workers’ Compensation Programs, agree that Burnsworth was entitled to the black lung benefits so that the question now presented is whether the cost of the benefits is to be borne by Helen or by the Black Lung Disability Trust Fund (the “Fund“). The answer to the question depends on whether Helen can effect a transfer of liability for Burnsworth‘s benefits from it to the Fund by asserting “good cause” for Burnsworth‘s failure to request review of an earlier denied claim for benefits. Accordingly, we revisit the problem we considered in Rochester & Pittsburgh Coal Co. v. Krecota, 868 F.2d 600 (3d Cir.1989), in which we held that under the Black Lung Benefits Act a request for review of denied benefits must come from the miner, not the mine operator.
I. THE STATUTORY AND FACTUAL BACKGROUND
The statutory background we confront could hardly be more complicated. In 1969, Congress promulgated the Federal Coal Mine Health and Safety Act, Pub.L. No. 91-173, 83 Stat. 792 (1969) (the “1969 Act“). In Title IV of the 1969 Act (in 1978, entitled the “Black Lung Benefits Act,” Pub.L. No. 95-239, Sec. 16, 92 Stat. 105 (1978)), finding that there were a significant number of coal miners seriously affected by pneumoconiosis--i.e., “black lung” disease--, Congress provided for temporary benefits for the survivors of miners who had died from, and for those miners totally disabled by, this disease. Pub.L. No. 91-173, Secs. 401-426, 83 Stat. 792-798 (codified, as amended, at
This temporal division of claims, between “Part B” and “Part C,” also governed liability for the benefits: Part B claim benefits were to be paid from the federal fisc; Part C benefits were to be paid pursuant to state workers’ compensation statutes found by Labor to provide adequate black lung disability coverage, or, if the state programs were not approved, by the responsible mine operators or their successors (or by the federal government if such operators could not be found). Pub.L. No. 91-173, Secs. 411(a), 422(a)-(d), 83 Stat. 793, 796 (codified at
The Black Lung Benefits Act of 1972, Pub.L. No. 92-303, 86 Stat. 150 (1972) (codified at
Burnsworth, a mine face foreman with Helen, first filed a claim for black lung benefits on January 15, 1973. This claim, a Part B claim by temporal definition, was reviewed by Social Security and was denied on September 12, 1973. On August 21, 1975, Burnsworth filed another claim with Social Security but, as it was a Part C claim, it was sent to Labor where it languished without decision.4 On April 5, 1976, Burnsworth filed a third claim, and, shortly thereafter at the age of 70, retired from work in the mines. Labor administratively denied this last claim on March 24, 1977.
On March 1, 1978, Congress passed the Black Lung Benefits Reform Act of 1977, Pub.L. No. 95-239, 92 Stat. 95 (1978) (codified at
A companion to the Reform Act, the Black Lung Revenue Act of 1977, Pub.L. No. 95-227, 92 Stat. 11 (1978) (codified at
After passage of the Reform Act, Burnsworth received a letter from Social Security, and, almost immediately thereafter, another from Labor. The four-page letter from Social Security explained the changes in the law and attached a card for electing Social Security or Labor review. The Social Security letter informed Burnsworth,
If you wish your claim to be reviewed under the new law, you must request it.... You have up to six months from the date shown on the election card to request review unless you have a good reason for not doing so. [Emphasis in original.]
The Labor letter informed Burnsworth,
All claims filed with the Department of Labor that have not been approved for black lung benefits will automatically be reviewed under the new law.
Since you previously filed a claim with the Department, you do not have to file a new claim. We will automatically review your claim and contact you if additional information is needed in order to decide your case. Until we contact you, there is nothing that you need to do about your claim. We will appreciate your continued patience during this review process.[Emphasis in original.]
In light of these seemingly contradictory communications, Burnsworth did nothing. “I just thought,” he testified, “well, it‘s just like everything else and I just laid [the card] aside.” “I took for granted that everything was under control [and] in order and there was no need of me bothering anyone at the time.”
On October 26, 1979, Labor informed Burnsworth that his benefits had been approved to be retroactive to the August 21, 1975, filing of his second Part C claim. Labor began paying Burnsworth‘s benefits, and notified Helen of its potential liability, which Helen timely controverted. Pursuant to Helen‘s contest, an administrative hearing was scheduled, but before it was held Helen withdrew its contest of Burnsworth‘s eligibility for benefits. Labor, however, continued to pay Burnsworth‘s benefits, apparently believing that Helen would eventually be liable for them.
Meanwhile, the liberalized standards of entitlement under the Reform Act began to wreak havoc in the coal industry. As the percentage of claims granted soared, the mine operators found themselves saddled with a massive, retroactive, unanticipated liability for Part C claims which their insurers refused to cover. See Lopatto, The Federal Black Lung Program: A 1983 Primer, 85 W.Va.L.Rev. 677, 693-94 (1983). Congress addressed this problem in the Black Lung Benefits Amendments of 1981, Pub.L. No. 97-119, 95 Stat. 1643 (1981) (codified at
(2) which was the subject of a claim denied before March 1, 1978, and which is or has been approved in accordance with the provisions of section 945 of this title.
Pub.L. No. 97-119, Sec. 205(a)(1), 95 Stat. 1645,
Thus, mine operators were relieved of liability for benefits granted under the new, liberalized standards of the Reform Act where those benefits had already been the subject of a “claim denied” on or earlier than February 28, 1978; the liability for these benefits, instead, was to be transferred to the Fund, the assets of which were supplemented by a further hike in the excise tax on coal.
The 1981 Act further provided
that the term “claim denied” means a claim--
(1) denied by [Social Security]; or
(2) in which (A) the claimant was notified by [Labor] of an administrative or informal denial more than one year prior to [March 1, 1978] and did not, within 1 year from the date of notification of such denial, request a hearing, present additional evidence or indicate an intention to present additional evidence, or (B) the claim was denied under the law in effect prior to [March 1, 1978] following a formal hearing or administrative or judicial review proceeding.
Pub.L. No. 97-119, Sec. 205(b), 95 Stat. 1645,
None of these transfer provisions, however, relieved Helen from liability for Burnsworth‘s benefits: subsection 2(B) did not transfer liability to the Fund as Burnsworth‘s second Part C claim was not originally denied following a formal proceeding; subsection 2(A) did not transfer liability, for although Burnsworth‘s second Part C claim was originally denied administratively, the denial was on March 24, 1977, and thus not “more than one year prior to March 1, 1978,” see
II. HELEN‘S CLAIM
Nonetheless, after passage of the 1981 Act Helen, relying on regulations which Social Security and Labor had promulgated after the passage of the Reform Act in 1978 to implement the review process, contended it was entitled to have its liability for benefits transferred to the Fund. The regulations deal with situations such as Burnsworth‘s, where, prior to the Reform Act‘s passage, a claimant had had Part B and Part C claims denied. The Social Security regulation provides:
If the claimant does not respond to notification of his or her right to review by [Social Security] within 6 months of the notice (see Sec. 410.704(c)5 unless the period is enlarged for good cause shown, the Office of Workers’ Compensation Programs shall proceed under [Labor‘s] regulations at 20 C.F.R. Part 727 to review the claim originally filed with [Labor].
Labor‘s regulation provides that where a claimant had had both a Part B and a Part C claim denied, but
d[id] not respond to notification of his or her right to review by [Social Security] within 6 months of such notice (see Sec. 727.104) unless the period is enlarged for good cause shown, the Secretary of Labor shall proceed under this Part to complete processing of the claim originally filed with [Labor].
III. DISCUSSION
The foregoing is, then, the statutory, regulatory, factual and procedural background that we consider in deciding this matter. We are satisfied that while there can be no doubt that the evolution of the black lung benefits program presents a complicated picture, the proper resolution of this case ultimately is clear. Helen, of course, acknowledges that a “plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Further, it does not deny that in 1978 the mine operators were essentially legal bystanders to the Reform Act‘s provisions by which miners were given the right to have their denied claims reviewed. Yet it maintains that it has subsequently become entitled to take advantage of these provisions and the regulations implementing them. Helen claims that after passage of the 1981 Act‘s transfer provisions it acquired a very real monetary interest in having Burnsworth‘s Part B claim reopened and reviewed, and that it therefore has standing to have the claim reopened by asserting “good cause” for Burnsworth‘s failure to timely request review.
While we do not agree with this formulation, we agree that Helen has standing. The administrative law judge and the Benefits Review Board respectively determined that liability for Burnsworth‘s benefits would not transfer to the Fund and that Helen would have to pay those benefits. Thus, Helen was “aggrieved” by the Board‘s determination, see
However, the fact that Helen has standing does not mean it is entitled to relief. We are satisfied that Congress did not intend that mine operators could take advantage of the review provision of the Reform Act for Part B claims. The plain language of the Reform Act provides that Part B claims are to be reopened only “upon the request of the claimant....”
The regulations promulgated by Social Security and Labor under the review provisions of the Reform Act support this view. The right to seek reopening and review of Part B claims belongs to the claimant--it is “his or her right to review....”
Furthermore, we reject Helen‘s argument that the administrative law judge‘s finding that Helen had “good cause” in not asking for the Part B review somehow satisfies the statutory requirement of a request for review by the claimant. The very regulations upon which Helen relies provide that “good cause” is good cause for an untimely request for review; it is not good cause for a failure to make a request for review. See
Finally, far from agreeing with Helen that the 1981 Act‘s transfer provisions somehow vested mine operators with the right to request the reopening of Part B claims, we hold that the transfer provisions reaffirmed the requirement that the request for reopening come from the claimant. The 1981 transfer provisions instruct that transfer of benefit liability to the Fund can only take place for claims which, inter alia, have “been approved in accordance with the provisions of section 945” of title 30,
Our conclusion is at least partially supported by Old Ben Coal Co. v. Luker, 826 F.2d 688 (7th Cir.1987). In Luker, as here, the miner had filed both a Part B and a Part C claim. The Part C claim was approved but the mine operator sought to have its liability for benefits transferred to the Fund by showing “good cause” for the miner‘s failure to timely request review of his Part B claim. In Luker the mine operator presented to the Benefits Review Board affidavits of the claimant (i.e., the miner‘s widow) that requested review of the denied Part B claim. The court treated this as the equivalent of a formal request for review of the denied Part B claim, and remanded the matter to the Board to determine whether there was “good cause” for the lateness of this request. In our case, we have no occasion to express a view on the propriety of treating a claimant‘s request to the Board as the equivalent of a formal request for review, as the Court of Appeals for the Seventh Circuit did. Here, there was no such involvement by the claimant. Moreover, we note that the Luker court rejected the mine operator‘s suggestion that it was unimportant whether a request had been made by the claimant. The court observed:
We do not accept this argument as a way around the Social Security regulations which require a specific election--whether by the formal election card or by some other means--to have the Part B claim reviewed. Under the controlling Social Security regulations, 20 C.F.R. Sec. 704, Luker must have made a timely specific election to have the Part B claim reviewed. We believe that to accept [the mine operator‘s] argument on this point would be to ignore the controlling regulations and with them the congressional intent to limit transfer to the number and type of claims already discussed.
IV. CONCLUSION
In sum, we hold that, under
BECKER, Circuit Judge, dissenting.
I agree with the majority‘s observation that the statutory background is complicated. I disagree with its conclusion that the meaning of the relevant statutory and regulatory language is plain. Therefore, in order to determine whether a mine operator may transfer liability for the black lung benefits of its former employee to the Black Lung Disability Trust Fund (the “Fund“), I find it necessary to delve further into the statutory background of the Black Lung Benefits Amendments of 1981 (the “1981 Amendments“) than does the majority. In my view, the intent of Congress, which ultimately governs this case, can be discerned only from that part of the story behind the 1981 Amendments that the majority leaves untold.
The untold story compels several relevant conclusions. First, the true source of the 1981 Amendments, the agreement that the mine operators, their insurers, and the mineworkers’ unions reached at Congress‘s behest in an effort to save the black lung benefits program from bankruptcy, and which Congress blessed by enacting it, clearly contemplated the transfer of claims such as that of Helen Mining Company‘s (“Helen Mining‘s“) former employee, John Burnsworth, to the Fund. Additionally, it makes utterly no sense to make the transfer of liability from a mine operator to the Fund turn upon a request for transfer by a miner who already is receiving benefits and therefore has absolutely no interest in effecting this shift in liability--but that is what the majority does. It also is unrealistic to believe that Congress intended such a strange result. I therefore believe that responsibility for the claim at issue should have been transferred to the Fund and that the majority has reached the wrong result in this case.
From my reading of Director, Office of Workers’ Compensation Programs v. Quarto Mining Co., 901 F.2d 532 (6th Cir.1990), the Sixth Circuit reached a result in direct opposition to that which the majority reaches today. Further, as I read Old Ben Coal Co. v. Luker, 826 F.2d 688 (7th Cir.1987), the Seventh Circuit arrived at a holding that effectively is irrelevant to that of the majority here. Because I find the majority‘s analysis of the relevant statutory framework less than persuasive and believe that the result reached by the Sixth Circuit is more consistent with the intent behind the 1981 Amendments, I respectfully dissent.
I. DOES THE APPLICABLE STATUTORY AND REGULATORY LANGUAGE, BY ITS PLAIN MEANING, FORECLOSE HELEN MINING‘S TRANSFER EFFORT?
I have no quarrel with the majority that Helen Mining has standing to challenge the Benefits Review Board‘s affirmance of the administrative law judge‘s decision denying transfer of Burnsworth‘s claim to the Fund.1-1 I therefore begin with an assessment of the majority‘s conclusion that the applicable statutory and regulatory language by its plain meaning forecloses Helen Mining‘s transfer effort. I believe that conclusion to be unsound.
The majority begins its analysis of
If examined with more deliberation, however, the statutory language upon which the majority relies actually undermines its conclusion. The majority fails to observe that the transfer provision that it quotes does not simply conclude with the statement that no benefit for a black lung claim shall be payable by a mine operator if the benefit “was the subject of a claim denied before March 1, 1978.”
When this clause of the transfer provision is borne in mind, the statutory definition of “claim denied” is anything but dispositive of the issue whether liability for Burnsworth‘s black lung benefits may transfer to the Fund. As the majority notes, subsections (2)(A) and (B) of the section of the 1981 Amendments defining “claim denied,”
A close reading of the 1981 Amendments’ transfer provision and definition of “claim denied” requires, at the very least, immediate resort to
[t]he Secretary of Health and Human Services shall promptly notify each claimant who has filed a claim for benefits under part B of this subchapter and whose claim is either pending on March 1, 1978, or has been denied on or before that date, that, upon the request of the claimant, the claim shall be either--
(A) reviewed by the Secretary of Health and Human Services ...; or
(B) referred directly by the Secretary of Health and Human Services to the Secretary of Labor
....
Read in the context of the 1981 Amendments, section 945 only compounds statutory ambiguity on the issue whether Helen Mining may effect a transfer of Burnsworth‘s claim to the Fund. The language of section 945 clearly provides for a review of previously denied claims--but a review that already was to have taken place by the time that the 1981 Amendments were enacted. In the context of the 1981 transfer and definitional provisions, the most logical interpretation of the language of section 945 might appear to be that Burnsworth‘s originally denied Part B claim would be eligible for transfer only if, pursuant to his request, the Secretary of Health and Human Services had in the past reviewed (and approved) it. This is not a viable contextual interpretation of section 945, however, because it flies in the face of the transfer provision, which speaks of the transfer of a claim “which is“--i.e., in the present or the future--approved in accordance with the provisions of section 945. See
I believe that because the majority fails carefully to juxtapose the language of section 945 with the language of the 1981 transfer provision that references this section, it erroneously: (1) makes much of Congress‘s 1977 substitution, in section 945, of the requirement that the claimant request review of a Part B claim that previously had been denied in place of language in an earlier draft of the section that provided that Part B claims, like Part C claims, were automatically to be reviewed; and (2) arrives at the unwarranted conclusion that Congress, in 1981, “did not intend that mine operators could take advantage of the review provision of the Reform Act for Part B claims.” See Majority Op. at 1275. For, if the language of section 945 is read in the immediate context of the 1981 transfer and definitional provisions, the election requirement of this section scarcely appears to clarify the statutory ambiguity as to who may effect the present or future transfer of a claim--and how this transfer may be accomplished. As the majority itself notes, “inasmuch as the transfer provisions did not exist when the Reform Act was enacted, Congress could hardly have provided otherwise” than for elected review at the behest of a claimant. Majority Op. at 1275. The language of this 1977 provision also fails to dictate the conclusion--plainly or otherwise--that Congress in 1981 intended that the mine operators could not take advantage of the 1977 provisions. The language of section 945, coupled with the language of the transfer provisions, points, rather, to a gap in the black lung benefits legislation, which, if not clearly bridged by the regulations construing these provisions, necessitates a closer examination of the legislative history of the 1981 Amendments to discern the controlling Congressional intent.
Like the majority, I regard the SSA and Department of Labor (the “DOL“) regulations construing the election requirement of section 945 as potentially resolving any ambiguity that the 1981 transfer provision, in juxtaposition with this 1977 provision, creates as to who may transfer a claim to the Fund and by what means. I diverge from the majority, however, in my reading of these regulations.
As the majority emphasizes, both the SSA and the DOL regulations implementing the election requirement in the wake of the 1977 Reform Act provide that a claimant who previously has had both Part B and Part C claims denied will lose the right to review of the denied Part B claim if he or she “does not respond to notification of his or her right to review [by the SSA] ... within 6 months ... unless the period is enlarged for good cause shown.”
Because I believe that the language of the regulations construing the election requirement of the 1977 Reform Act is more indeterminate than the majority would have it, I also cannot conclude that the regulation construing the 1981 transfer provision resolves any ambiguities in the statute and mandates that Helen Mining may not, upon a showing of good cause, effect a transfer of Burnsworth‘s claim to the Fund. As the majority notes, Majority Op. at 1274 n. 6, the regulation accompanying the transfer provision provides that
No claim filed with and denied by the Social Security Administration is subject to the transfer of liability provisions unless a request was made by or on behalf of the claimant for review of such denied claim under [30 U.S.C. Sec. 945]. Such review must have been requested by the filing of a valid election card or other equivalent document with the Social Security Administration in accordance with [30 U.S.C. Sec. 945(a) ] and its implementing regulations....
I am mindful that “where [Congress‘s] will has been expressed in reasonably plain terms, ‘that language must ordinarily be regarded as conclusive.’ ” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S.Ct. 3245, 3249, 73 L.Ed.2d 973 (1982) (quoting Consumer Product Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)); see also Malloy v. Eichler, 860 F.2d 1179, 1183 (3d Cir.1988) (“Where the language of the statute is clear, only ‘the most extraordinary showing of contrary intentions’ justif[ies] altering the plain meaning of a statute.” (citation omitted)). In contrast to the majority, I simply cannot conclude that Congress has, in the statutory framework that controls this case, clearly expressed its will as to how the issue that Helen Mining presents ought to be resolved. I believe, rather, that this case highlights a lacuna in Congress‘s black lung benefits legislation and that it is “the very touchstone of judicial responsibility in dealing with such [a] statutory [interstice] ... to ascertain, to the best extent possible, the Congressional intent, and to interpret the statute in light of the statutory scheme.” Glus v. G.C. Murphy, 629 F.2d 248, 263 (3d Cir.1980) (Sloviter, J., dissenting) (elaborating upon the differing judicial functions of creating federal common law and interpreting statutes), vacated and remanded sub nom. Retail, Wholesale and Department Store Union, AFL-CIO v. G.C. Murphy Co., 451 U.S. 935, 101 S.Ct. 2013, 68 L.Ed.2d 321 (1981), rev‘d in part on remand, 654 F.2d 944 (3d Cir.1981); see also United States v. Vastola, 915 F.2d 865 (3d Cir.1990) (“Where there are statutory interstices in the sense that the statute‘s language does not explicitly resolve an issue which has arisen in the application of the statutory scheme, a court obviously has the power to decide the issue consistently with the legislative intent.“). It is to this task of ascertaining the Congressional intent behind the 1981 Amendments and analyzing the transfer issue that Helen Mining has raised in the light of the statutory scheme that I next turn.
II. THE OTHER HALF OF THE LEGISLATIVE STORY
As the majority observes, the Black Lung Benefits Reform Act of 1977 greatly liberalized the eligibility criteria for black lung benefits, wreaking havoc in the coal industry. See Lopatto, The Federal Black Lung Program: A 1983 Primer, 85 W.Va.L.Rev. 677, 696-98 (1983). Insurance companies increasingly refused to cover the new, numerous, and unanticipated operator liabilities arising from the 1977 Reform Act‘s liberalized standards. See id. These liabilities included liabilities for claims for which, prior to the 1977 legislation, the federal government would have been presumed liable. See H.R.Rep. No. 1410, 96th Cong., 2d Sess. 3 (1980) (1977 amendments to black lung benefits program rendered operators and, in default, the Fund, liable for claims approved under new review provisions regardless of whether claims originally were filed in period of presumed federal liability). Litigation between mine operators and their insurers followed, and, as the insurance companies won coverage lawsuits, the basic funding mechanism created by the 1977 Reform Act was jeopardized. See Lopatto, supra, at 697-700.
The majority acknowledges that the problems in the coal and coal insurance industry created by the 1977 Reform Act‘s liberalized standards spurred the 1981 Amendments. The majority, however, fails to take note either of the unusual process by which the 1981 Amendments evolved or of Congress‘s intent in enacting them. Indeed, the absence of any legislative records of a conference or proposed bills preceding enactment of the 1981 Amendments points to the considerable role that mine operators, insurers, and labor played in evolving this legislation. Although the 1981 Amendments appear mainly to have been drafted by the DOL, they clearly constitute a “consensus package” arrived at by these various groups in an effort to preserve black lung benefits for afflicted miners and to ensure the continued solvency of both mine operators and the Fund. See id. at 677.
That the 1981 Amendments constitute an accommodation reached by mine operators, their insurers, and labor is overwhelmingly borne out by records of the House and Senate debates on this legislation. See 127 Cong.Rec. 31,508-13 (1981) (1981 Amendments enjoy support of “the administration and a broad coalition of coal producers, mineworkers, and others affected by the legislation“) (statement of Rep. Rostenkowski), (1981 Amendments represent “a compromise on the part of almost all the interested parties“) (statement of Rep. Conable), (1981 Amendments “preserve the program revisions which have been worked out with careful consideration of all interests involved and ... have the support of coal operators, insurance companies, and the United Mine Workers“) (statement of Rep. Benedict), 127 Cong.Rec. at 31,958, 31,965, 31,979-80 (1981 Amendments are supported by “alliance” comprising the administration, industry, insurers, and unions) (statement of Sen. Chafee), (1981 Amendments have been endorsed by “the administration, the coal industry, and the United Mine Workers” and represent “much deliberation and compromise by all parties concerned“) (statement of Sen. Ford), (1981 Amendments represent culmination of “a long counseling period” to promote consensus among parties, such as the National Coal Association, the United Mine Workers, and the American Insurance Association, “recognizing the human element and the financial considerations which are involved“) (statement of Sen. Randolph).
The 1981 Amendments doubled the excise tax on coal (largely paid by local purchasing electric companies) that financed the Fund, and transferred liability from mine operators to the Fund for a number of black lung claims that the SSA and the DOL originally denied but, under the 1977 Reform Act, subsequently approved. See generally 127 Cong.Rec. at 31,506, 31,508-13. The nub of the legislative package as it pertains to this case is that it relieved mine operators (and their insurance carriers) of the bulk of the unanticipated financial responsibility for black lung benefits that resulted from applying the 1977 Reform Act‘s liberalized criteria to previously denied claims. See id.; see also 127 Cong.Rec. at 31,958, 31,960-61. The 1981 Amendments provided that the burden for these benefits was to be shouldered by the Fund, financed indirectly by the new tax.
As is evidenced by the relative brevity of the legislative debate on the 1981 legislative accord--a debate in which the transfer provisions notably were not touched upon--Congress virtually rubber stamped the accommodation reached by the mine operators, their insurers, and labor. See 127 Cong.Rec. at 31,506, 31,958-82. As is explained in the margin, Congress appears, in particular, to have rubber stamped the accommodation that these parties reached concerning the transfer provisions in the 1981 Amendments.3-1 It is clear, moreover, that Congress, in enacting this accommodation, was motivated by two main concerns.
One obvious concern was to return the Fund to solvency. See Subcommittee on Oversight, Committee on Ways and Means, U.S. House of Representatives, 97th Cong., 1st Sess., Report and Recommendations on Black Lung Disability Trust Fund (Comm. Print 1981) [hereinafter Report on the Fund]; 127 Cong.Rec. at 31,506-14, 31,958-82. The other concern, which takes precedence in the House Committee on Education and Labor‘s Report on the 1981 Amendments, was to “correct an inequity that occurred out of the 1977 Amendments to the Black Lung Benefits Act.... [that] impacts significantly and adversely on coal operators and their commercial insurers“--namely, their unanticipated liability for claims granted under the liberalized standards of the 1977 Reform Act. H.R.Rep. No. 1410, 96th Cong., 2d Sess. at 1;4-1 see also Report on the Fund, supra, at 28 (transferring liability for claims previously denied and subsequently reopened and approved under standards of the 1977 Reform Act would “rectify the inequity of making mine operators liable for claims that were approved under retroactively-applied benefit entitlement standards“).
This is the legislative story behind the 1981 Amendments that the majority fails to read and apply. I believe, as I discuss next, that it is only within the overarching context of this story that the issue whether Helen Mining may effect a transfer of Burnsworth‘s claim to the Fund can, within the subcontext of the statutory scheme, be correctly resolved.
III. THE TRANSFER ISSUE IN THE LIGHT OF THE LEGISLATIVE HISTORY AND THE STATUTORY SCHEME
The issue before us, set against the background that I have discussed at length, is whether it is consistent with the statutory scheme of the black lung benefits program to permit Helen Mining to effect a transfer to the Fund of liability for a claim (1) of the type that Congress intended should transfer to the Fund, and (2) as to which good cause has been found for the claimant‘s failure timely to elect the review on which a transfer ordinarily is conditioned. I conclude not only that it is consistent with the statutory scheme to permit mine operators, such as Helen Mining, to effect the transfer to the Fund of claims such as Burnsworth‘s, but also that it would be patently unreasonable, in light of this statutory scheme, to prohibit operators from seeking transfers of these sorts of claims.
Burnsworth‘s original Part B claim, which was denied by the SSA prior to March 1, 1978, clearly is the type of claim that (if approved under the liberalized criteria of the 1977 Reform Act) the mine operators, their insurers, and, ultimately, Congress, intended should transfer to the Fund.5-1 Under the SSA and DOL regulations implementing the 1977 Reform Act, moreover, if a claimant such as Burnsworth, with duplicate Part B and Part C claims, requested review of his Part B claim (or had the failure timely to request review excused for good cause), the claimant‘s Part B claim clearly would transfer, thereby extinguishing the operator‘s potential liability for his Part C claim. See
It is central to emphasize that the administrative law judge (the “ALJ“) determined, based on Burnsworth‘s own testimony, that good cause existed for Burnsworth‘s failure to file an election card with the SSA for review of his Part B claim. As the majority notes, the ALJ ultimately concluded that Helen Mining could not effect a transfer of liability to the Fund for the benefits that the DOL granted to Burnsworth under Part C. See Majority Op. at 1274 n. 7. The ALJ, however, based this ultimate conclusion, as did the Benefits Review Board its affirmance, on Chadwick v. Island Creek Coal Co., 7 Black Lung Rep. (MB) 1-833 (Ben.Rev.Bd.1985)--a decision that I believe the majority, agreeing with the Seventh Circuit, rightly rejects. See Majority Op. at 1275 n. 7 (citing Old Ben Coal Co., 826 F.2d at 693-98).
I therefore believe that the majority mischaracterizes the ALJ‘s decision as a rejection of Helen Mining‘s “position” that a showing of good cause obviates the need for Burnsworth personally to seek the transfer of liability for his benefits to the Fund. Id. at 1274-1275. I also believe that the majority errs in thus glossing over the ALJ‘s good cause determination. See id. at 1274-1275. This factual determination is entitled to considerable deference and may be set aside only if it is not supported by substantial evidence. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971); Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1950); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.1988). Although the issue that faces us primarily is one of statutory interpretation, I nonetheless think that this “good cause” determination is entitled to far more attention than the majority accords to it.
As I repeatedly have emphasized, the transfer provision of the 1981 Amendments,
To my mind, it is illogical to construe a statutory scheme that provides for present and future “good cause” transfers of claims to the Fund so as to: (1) foreclose transfers instigated by the only parties who have an interest in effecting them; and (2) permit transfers only by parties who have no interest in seeking them. This construction of the statutory scheme seems to me to fly in the face of the long-standing rule of statutory construction that “interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative intent are available.” Griffin, 458 U.S. at 575, 102 S.Ct. at 3252 (citing United States v. American Trucking Ass‘ns., Inc., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940), and Haggar Co. v. Helvering, 308 U.S. 389, 60 S.Ct. 337, 84 L.Ed. 340 (1940)); see also Walling v. American Stores Co., 133 F.2d 840, 844 (3d Cir.1943) (“[W]e should not be justified in a literal application of [statutory] words where they would lead to a result plainly at variance with the policy of the legislation as a whole.“).
Yet this, I conclude, is the construction of the statutory scheme at which the majority arrives today.
I believe that it would show the appropriate deference to the ALJ‘s finding of good cause in this case and would be more consistent both with the black lung statutory scheme, in general, and with the 1981 Amendments, in particular, to hold that the establishment of good cause for a claimant‘s failure to request the reopening of a denied Part B claim during the six-month statutory period functions as a surrogate for a transfer request personally filed by a claimant.It is important to note that such a holding would not implicitly adopt for claimants such as Burnsworth, with concurrently reviewable Part B and Part C claims, an “automatic election,” effectively waiving the statutory and regulatory requirement of a claimant‘s timely request for review of a Part B claim (and, in its absence, a showing of good cause).6 Permitting a showing of good cause to obviate the need for a claimant‘s personal request that a Part B claim be reopened does not endorse such an “automatic” or “implicit” election theory, because it is possible that a duplicate claimant, such as Burnsworth, would not meet the good cause criteria.7 Further, as my previous analysis suggests, I believe that it would be more consistent with the enacted accommodation reached by mine operators, their insurers, and labor, as well with Congress‘s intent to relieve mine operators of unanticipated liability for claims such as Burnsworth‘s, to hold that the establishment of good cause functions as a surrogate for a transfer request personally filed by the claimant.8
In addition, I disagree with the majority that its conclusion “is at least partially supported by Old Ben,” 826 F.2d at 688, that Quarto, 901 F.2d at 532, “holds little more than Luker,” and that both decisions are “inapposite in a case in which the claimant remained uninvolved in the transfer dispute.” Majority Op. at 1277, 1277 n. 8. Although I believe that the holding of Old Ben is, as the majority ultimately concludes, irrelevant to this case, I do not believe that the Seventh Circuit‘s decision in Old Ben by any means supports the majority‘s decision here. I believe, however, that the Sixth Circuit in Quarto reached a decision that is highly relevant to cases, such as this one, in which the claimant remains uninvolved in the transfer dispute, and that the holding in Quarto directly contravenes that which the majority reaches today, thus creating a circuit split.
In Old Ben, the court briefly considered, as the majority notes, whether good cause had been established for the claimant‘s failure to request review, under the liberalized criteria of the 1977 Reform Act, of his previously denied Part B claim. 826 F.2d at 688. In addressing this issue, the Old Ben court tersely and by no means explicitly inquired whether the affidavit from the widow of the duplicate claimant, requesting that the SSA again review her late husband‘s Part B claim, sufficed to reopen the claim. See id. at 697. In the footnote pertaining to the good cause issue, from which the majority quotes at length, the Old Ben court, prior to concluding that the controlling regulation had required the claimant to make a timely and specific election in order to have his Part B claim reviewed, considered an argument involving a variation of the fallacious “automatic election” theory that I previously have discussed. See id. at 697 n. 5. The Old Ben court observed at the outset in this footnote that the operator had contended that the claimant, by pursuing the automatic review of his Part C claim, “in effect elected by the simplest means to obtain DOL review” and that therefore “it was not necessary for [the claimant] to submit a formal election card to obtain review of his denied Part B claim.” Id. The Old Ben court considered the operator‘s argument, in other words, that a passive election of review of a Part C claim, under the liberalized criteria of the 1977 Reform Act, constituted an implicit and automatic election for review of a previously denied Part B claim.
It was in this context that the Old Ben court made the statement that the majority quotes, asserting, inter alia, “[w]e reject this argument as a way around the SSA regulations which require a specific election--whether by formal election card or by some other means--to have the Part B claim reviewed.” Id. This was the “argument” by the operator that the Seventh Circuit was rejecting in the passage quoted by the majority, see Majority Op. at 1277, and rightly so, because it flies in the face of both the statutory and regulatory language requiring the specific election of review of a denied Part B claim absent a showing of good cause. See
In contrast, in my opinion it is clear that the Sixth Circuit in Quarto faced and decided the issue whether, based upon the establishment of good cause for a claimant‘s failure timely to request review of a Part B claim, an operator may effect a transfer of liability for the claimant‘s benefits to the Fund. As the majority observes, the Quarto court noted in passing that the claimant joined in the operator‘s motion to be dismissed from liability under the 1981 Amendments. 901 F.2d at 534. The claimant‘s joinder in the operator‘s motion, however, appears in no way to have driven the Sixth Circuit‘s outcome in Quarto. The Sixth Circuit clearly stated that the issue before it compelled “the consideration of the consequences of a total lack of notice to the claimant on that claimant‘s ability to reopen a Part B claim and the operator‘s ability to transfer its liability to the trust fund.” Id. at 537 (emphasis added). The Sixth Circuit, moreover, framed its holding in Quarto as follows: “We hold ... that where the claimant has failed to receive an election card, that claimant‘s presentation of that issue or the operator‘s raising of the transfer liability issue at a formal disability hearing suffices as the legitimate filing of a Part B claim. Id. (emphasis added).9
I therefore cannot agree with the majority that the Quarto court in substance held that a joint motion by a claimant and an operator before an ALJ to transfer liability for the claimant‘s benefits--and only such a joint motion--is “tantamount to a formal request to Social Security that [a] Part B claim be reopened” and sufficient to effect the transfer of the operator‘s liability to the Fund. Majority Op. at 1277 n. 8. I also cannot conclude that the Sixth Circuit‘s holding in Quarto is inapposite in cases in which claimants remain uninvolved in the transfer dispute or that Quarto‘s holding stands in anything other than direct opposition to the holding that the majority arrives at today.
IV. CONCLUSION
In sum, I conclude, in contrast to the majority, that a deliberative reading of the statutory and regulatory language governing the black lung benefits program reveals an interstice in the statutory scheme on the question whether an operator, such as Helen Mining, may, through a showing a good cause for a duplicate claimant‘s failure to elect review of a Part B claim, effect a transfer to the Fund of liability for the claimant‘s benefits. I believe that this interstice necessitates recourse to the legislative story behind the relevant statutory provisions--a story that the majority unfortunately has failed to ponder and apply.
In my view, this statutory interstice necessitates careful analysis of the governing statutory provisions and their implementing regulations, not only within the overarching context of the legislative story behind them, but also within the context of the general statutory scheme. Such an analysis, to my mind, demonstrates that the majority‘s conclusion that the statute and the regulations prohibit Helen Mining from effecting a transfer to the Fund of liability for Burnsworth‘s benefits is both illogical and in contravention of clear Congressional intent.
I would thus arrive at the result that I conclude the Sixth Circuit reached in Quarto and would hold that an operator‘s establishment of good cause for a claimant‘s failure timely to request the reopening of a denied Part B claim functions as a surrogate for a transfer request personally filed by a claimant. To the extent that such a holding would require us to overrule our earlier decision in Rochester & Pittsburgh Coal Co. v. Krecota, 868 F.2d 600 (3d Cir.1989), I believe that the legislative and statutory analysis, in which this case calls upon us to engage, requires that we do so.
I respectfully dissent.
Notes
[i]f a request for review [of a denied Part B claim] by [Social Security] or [Labor] is not received by [Social Security] within 6 months from the date the notice is mailed, the claimant shall be considered to have waived the right of review ... unless ‘good cause’ can be established for not responding within this time period.
Similarly, Labor regulations provide that, for Part B claims,
[i]f there is no response to notification [of the right to review by Social Security] ... within 6 months from the date notice is sent, unless the period is enlarged for good cause shown, the claimant shall be considered to have waived the right to review by [Social Security].
Finally, in
[n]o claim filed with and denied by [Social Security] is subject to the transfer of liability provisions unless a request was made by or on behalf of the claimant for review of such denied claim under section 435 [
In its brief and in oral argument, Helen explicitly foreswore any challenge to the validity of the regulations requiring that an election card be mailed back to Social Security within 6 months before Part B claims could be reviewed. We therefore do not have occasion to consider the validity of the regulations.
The Director asserted before the Board that the judge‘s determination that liability for Burnsworth‘s benefits could not transfer was correct--not because of Chadwick but, “since [a] claimant is required to specifically elect review of [a] previously denied claim with ... [Social Security] under Part B of the Act....” (Emphasis added.) On April 28, 1989, slightly more than three months after we decided Krecota, the Board affirmed on the basis of Chadwick.
In this court, citing Krecota, the Director again asserts that it is the claimant and not the mine operator who can request review of a claim. In light of the fact that the Director specifically asserted to the Board that the claimant must specifically request review of a Part B claim for liability to transfer, we find that the Director‘s right to put forward the “Krecota” issue here was not waived through failure to raise it before the Board. We therefore reject the suggestion in Helen‘s brief on rehearing in banc that “[t]echnically” the Director could be deemed to have waived an argument against transfer based on Krecota. See Director, Office of Workers’ Compensation Programs v. North American Coal Corp., 626 F.2d 1137, 1143 (3d Cir.1980).
We note that in their briefs in this court Helen and the Director suggest that Chadwick was erroneously decided. We agree. See Old Ben Coal Co. v. Luker, 826 F.2d 688, 693-98 (7th Cir.1987).
We recognize that the opinion in Quarto contains dictum that is in conflict with the decision of this court in Krecota. In both Quarto and Krecota, the claimant had not received notice of his right to elect review of his denied Part B claim. In Krecota, we held that a lack of notice does not obviate the need for a claimant to elect review in order for liability to transfer. In Quarto, the Court of Appeals for the Sixth Circuit did not need to address the issue because the claimant had joined with the operator in seeking review. Nonetheless, as Judge Becker correctly notes, that court stated in dictum that in a case where the claimant has not received notice, the operator may elect review of the denied Part B claim. We have no occasion to comment on this aspect of Quarto since the issue there presented is not currently before us. We note, however, that our decision today, contrary to Judge Becker‘s suggestion, does not create a conflict with anything the Court of Appeals for the Sixth Circuit has said in dicta or otherwise. In this case, unlike in Quarto and Krecota, the claimant received notice of his right to elect review of his denied Part B claim.
With regard to the majority‘s first grounds for distinguishing Quarto, the Sixth Circuit, as I have noted, framed its holding specifically to pronounce that, in the event that a claimant has failed to receive an election card, “the operator‘s raising of the transfer liability issue at a formal disability hearing suffices as a legitimate filing of a Part B claim.” 901 F.2d at 537. Because, as the majority emphasizes, the miner joined with the operator in Quarto in seeking the transfer of his claim, the Sixth Circuit could have avoided the issue whether the operator‘s raising of the transfer liability issue would suffice as a legitimate filing of a Part B claim. The Sixth Circuit, however, plainly chose not to avoid this issue and clearly prefaced its conclusion that the operator‘s raising of the transfer issue would suffice as a legitimate filing with the words “[w]e hold.” Id. at 537. In contrast to the majority, therefore, I do not conclude that the Sixth Circuit‘s resolution of this issue constitutes dicta.
Further, I believe that the majority errs in concluding that the absence of notice to the Quarto claimant creates a material factual distinction between that case and this one. The importance of the absence of notice in Quarto is that, like the confusion created by the seemingly conflicting notices that Burnsworth received, it gave rise to good cause for the claimant‘s failure timely to elect review of his Part B claim. See id. at 534. I do not read Quarto to imply that, should an ALJ find that grounds other than an absence of notice supported a finding of good cause, the operator‘s raising of these grounds at a formal disability hearing would for some reason not suffice as the legitimate filing of a Part B claim.