Eastern Associated Coal Co. v. DOWCP

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 11-0871-BLA Copies to all parties and the district court/agency. [999388859].. [13-1553]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1553

EASTERN ASSOCIATED COAL COMPANY,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondent,
ROY M. VEST,
Claimant.

On Petition for Review of an Order of the Benefits Review Board.
(11-0871-BLA)

Argued:

May 14, 2014

Decided:

July 3, 2014

Before GREGORY and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Petition denied by unpublished per curiam opinion.

ARGUED:
Mark
Elliott
Solomons,
GREENBERG
TRAURIG,
LLP,
Washington, D.C., for Petitioner.
Sarah Marie Hurley, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent.
ON
BRIEF:
Laura
Metcoff
Klaus,
GREENBERG
TRAURIG
LLP,
Washington, D.C., for Petitioner.
M. Patricia Smith, Solicitor
of Labor, Rae Ellen James, Associate Solicitor, Gary K.

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Stearman, Office of the Solicitor, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Eastern

Associated

Coal

Company

(“Petitioner”)

petitions for review of the Benefits Review Board’s (“BRB” or
“Board”)

decision

and

order

affirming

the

administrative

law

judge’s (“ALJ”) grant of living miner benefits to its former
employee, Roy Michael Vest (“Claimant”), 1 under the Black Lung
Benefits Act (“BLBA”), 30 U.S.C. §§ 901–945.
that

the

benefits

award

must

be

vacated

Petitioner argues
because

20

C.F.R.

§ 725.465(d), a regulation invoked by the Director of the Office
of Workers’ Compensation Programs (“Director”) in the underlying
proceedings, violates the Administrative Procedure Act (“APA”),
5 U.S.C. §§ 551-559, 701-706.
previously
benefits

adjudicated
filed

by

and

Petitioner also contends that a

unsuccessful

Claimant’s

widow,

claim

Kimberly

for

survivor’s

Vest

McKinney

(“Mrs. Vest”), operates to collaterally estop the benefits award
in the instant case.

1

Claimant died on May 8, 2006. The Black Lung Disability
Trust Fund paid interim benefits pending final adjudication of
his claim, and our decision denying Petitioner’s appeal will
obligate Petitioner to reimburse that fund.
See 30 U.S.C.
§ 934(b); 20 § C.F.R. 725.603(a).
This appeal therefore
presents a justiciable case or controversy regardless of the
interest (if any) retained by Claimant’s beneficiaries in the
benefits award.
See Old Ben Coal Co. v. Dir., OWCP, 292 F.3d
533, 538 n.4 (7th Cir. 2002); see also Dir., OWCP v. Nat’l Mines
Corp., 554 F.2d 1267, 1271-72 (4th Cir. 1977).

3

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As

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explained

below,

argument on both fronts.

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we

disagree

with

Petitioner’s

First, we conclude that there is no

conflict between the APA and 20 C.F.R. § 725.465(d).

Second, we

conclude that Claimant is not precluded from relitigating issues
decided in his widow’s claim because, as a non-party, he did not
have a full and fair opportunity to litigate the issues decided
in that proceeding.

We therefore deny the petition for review.
I.
A.
Statutory Background

Congress enacted the BLBA and created the Black Lung
Disability

Trust

Fund

(“Trust

Fund”

or

“Fund”)

in

order

to

provide benefits to coal miners disabled by pneumoconiosis 2 and
the surviving dependents of miners who died of the disease.
30 U.S.C. § 901(a); 26 U.S.C. § 9501(d)(1).
Labor

(“Secretary”)

is

vested

with

See

The Secretary of

“broad

authority

to

implement” this statutory mandate, Elm Grove Coal Co. v. Dir.,
OWCP, 480 F.3d 278, 293 (4th Cir. 2007), by promulgating “such
regulations

as

[he]

deems

appropriate

provisions” of the BLBA, 30 U.S.C. § 936.

2

to

carry

out

the

The Director, as the

“Pneumoconiosis,” or black lung disease, is a “chronic
dust disease of the lung and its sequelae” caused by inhaling
coal dust into the lungs over a long period of time. 30 U.S.C.
§ 902(b).

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Secretary’s designee, is charged with administering the BLBA and
is

a

party

to

all

benefits

adjudications.

See

30

U.S.C.

§ 932(k); 20 C.F.R. § 725.482(b).
Both miners and their survivors may seek benefits
under the BLBA by filing claims with the district director in
the

Department

Compensation
725.311.

of

Labor’s

Programs

(“DOL”)

(“OWCP”).

See

Office
20

of

C.F.R.

Workers’

§§

725.301-

After investigating the claim, the district director

determines whether the claimant is eligible for benefits and
which of the miner’s former employers, if any, will be held
responsible.

See id. §§ 725.401-725.423, 725.490-725.497.

Any

party may appeal the district director’s determination to the
Office of Administrative Law Judges and request a formal hearing
before an ALJ.
“adversely

See id. §§ 725.450-725.483.

affected

or

aggrieved”

by

the

A party who is
ALJ’s

subsequent

decision may, in turn, appeal that decision to the BRB.
§§ 802.201(a),
Finally,

“[a]ny

725.481;
person

see

also

adversely

33

U.S.C.

affected

or

§

Id.

921(b)(3).

aggrieved

by

a

final order of [the BRB]” may seek judicial review in the Court
of Appeals for the circuit in which the injury occurred.

33

U.S.C. § 921(c); 20 C.F.R. § 725.482.
The Trust Fund, which is financed by an excise tax on
coal production, is responsible for the payment of black lung
benefits in certain circumstances, such as when “there is no
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operator who is liable” for a benefits award.
§§ 9501(d), 4121.

See 26 U.S.C.

In cases implicating the Fund, the Director

is “charged with a fiduciary duty to protect” the Fund’s assets,
Dir., OWCP v. Hileman, 897 F.2d 1277, 1281 n.2 (4th Cir. 1990),
and operates as the Fund’s “trustee,” Boggs v. Falcon Coal Co.,
17 Black Lung Rep. 1-62, 1-65 (Ben. Rev. Bd. 1992) (internal
quotation marks omitted); see also 26 U.S.C. § 9501(a)(2) (the
Secretary is a “trustee[] of the [Trust Fund]”).
the

BRB

has

observed,

unprotected.”

Boggs,

“the
17

Trust

Black

Fund

Lung

Otherwise, as

would

Rep.

at

be

completely

1-65

(internal

quotation marks omitted); see also Dir., OWCP v. Newport News
Shipbuilding & Dry Dock Co., 676 F.2d 110, 114 (4th Cir. 1982)
(“[O]nly the Director has any real interest in protecting the
[Trust Fund] against unjustified payments.”).
After a claim is filed, the Trust Fund is required to
make interim payments to a claimant pending final resolution of
his

claim

if

determination

the

of

district

director

eligibility”

and

the

makes

an

“initial

responsible

operator

“fails or refuses to commence . . . payment” within thirty days.
20 C.F.R. §§ 725.522, 725.420; see also 26 U.S.C. § 9501(d)(1).
The Trust Fund is automatically subrogated to the rights of a
claimant when it makes these payments, and the Director “may, as
appropriate,
§§ 725.602(b),

exercise

such

725.482(b).

subrogation
Upon
6

final

rights.”

20

adjudication

C.F.R.
of

the

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the

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Director

may

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seek

reimbursement

of

the

interim

payments from the responsible operator, see 30 U.S.C. § 934(b),
or,

if

the

claim

“overpayments,”

is

denied,

from

the

20 C.F.R. § 725.522(b).

claimant

himself

for

The Director thus “has

a direct financial interest in the outcome in cases . . . in
which the Trust Fund has paid interim benefits.”

Boggs, 17

Black Lung Rep. at 1-66.
B.
Procedural History
Claimant, a retired coal miner, filed an application
for living miner’s benefits on May 16, 2001.

See 30 U.S.C.

§ 922(a)(1) (authorizing living miner’s benefits for coal miners
totally disabled due to pneumoconiosis). 3
the

district

benefits
employers,
contested

and
the
the

director
named

determined
Petitioner,

On December 31, 2002,

Claimant

was

one

Claimant’s

operator

responsible

district

director’s

for

of

eligible

payment.

determination,

for

former

Petitioner
refused

to

commence benefit payments, and requested a formal hearing before

3

Because Claimant’s claim was filed after January 19, 2001,
it is governed by 20 C.F.R. Parts 718 and 725, see 20 C.F.R.
§§ 718.2, 725.2, and is not affected by the Patient Protection
and Affordable Care Act’s amendments to the BLBA, which apply
only to claims filed after January 1, 2005, that are pending on
or after March 23, 2010, see Patient Protection and Affordable
Care Act, Pub. L. No. 111–148, § 1556, 124 Stat. 119, 260
(2010).

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an ALJ.
for

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The Trust Fund, consequently, assumed responsibility

paying

interim

benefits

adjudication of his claim.
claim

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was

thus

“in

February 1, 2001.”
On

pay

to

Claimant

pending

final

See 26 U.S.C. § 9501(d)(1).

status

from

[the

Trust

Fund]

His
as

of

J.A. 86. 4

January

12,

2005,

ALJ

Edward

T.

Miller

(“ALJ

Miller”) conducted a formal hearing on Claimant’s application.
While awaiting a decision, Claimant died on May 8, 2006, at the
age of 52.

Two days later, ALJ Miller issued a decision and

order awarding Claimant benefits and holding Petitioner liable
as the responsible operator.

Following Petitioner’s appeal, the

BRB affirmed in part, vacated in part, and remanded on May 23,
2007.

The BRB reasoned, inter alia, that ALJ Miller had failed

to provide an adequate foundation for his responsible operator
determination and two of his evidentiary rulings, which tainted
his

ultimate

benefits

and

conclusions
Petitioner’s

as

to

Claimant’s

liability

for

the

eligibility

for

same.

BRB

The

remanded the case with instructions to reconsider the inadequate
rulings and, concomitantly, reweigh the relevant evidence.
Following

her

husband’s

death,

Mrs.

Vest

separate claim for survivor’s benefits on May 31, 2006.

4

filed

See 30

Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.

8

a

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U.S.C. § 922(a)(2) (providing for survivor’s benefits “[i]n the
case of death of a miner due to pneumoconiosis”). 5

On January

10, 2007, the district director determined that Mrs. Vest was
ineligible for benefits, reasoning that Claimant’s death was not
caused
award

by
of

pneumoconiosis
survivor’s

and,

as

benefits

such,

under

would

the

not

BLBA.

support
Mrs.

an

Vest

contested this determination and requested a hearing before an
ALJ.

The following year, on May 6, 2008, Administrative Law

Judge Jeffrey Tureck (“ALJ Tureck”) conducted a formal hearing
on her claim.
Meanwhile,

Claimant’s

remanded

claim

miner’s benefits remained largely dormant.

for

living

After more than a

year of inactivity, ALJ Miller issued an order on October 3,
2008,

directing

evidence

in

order

Claimant’s claim.
advising

ALJ

the

parties
to

to

designate

facilitate

his

certain

final

pieces

decision

as

of
to

Claimant’s counsel responded with a letter

Miller

that

Claimant

was

deceased,

he

had

no

authority to act on behalf of Claimant’s estate, and Claimant’s
widow had remarried and was no longer interested in pursuing his
claim.

Given this information, ALJ Miller issued a show cause

5

Because Mrs. Vest’s claim was filed after January 19,
2001, and was not pending as of March 23, 2010, it is governed
by the same version of the BLBA and regulations that govern
Claimant’s claim.

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order soliciting input “as to how, in [the parties’] respective
interests, this tribunal should proceed with the disposition of
this claim.”

J.A. 87.

In his response to the show cause order, the Director
urged that the claim be resolved on its merits, as the Trust
Fund

had

made

adjudication
determine

on

the

interim
the

payments

merits

Director’s

of

right

to

Claimant

[his]
to

claim

and
is

“[a]

final

necessary

reimbursement

for

payments[,] from the employer or [Claimant’s] estate.”

to

those

J.A. 84.

The Director pointed to 20 C.F.R. § 725.465(d) 6 in support of the
proposition

that,

in

light

of

the

Trust

Fund’s

payment

of

interim benefits, the case could not be dismissed without the
Director’s consent.

Id. at 85.

Petitioner did not file a

response.
On November 3, 2008, ALJ Tureck issued a decision and
order

denying

Mrs.

Vest’s

claim

for

survivor’s

benefits,

concluding that she had failed to establish a necessary element
of her claim, i.e., that Claimant suffered from pneumoconiosis.
6

This regulation provides:
No claim shall be dismissed in a case with
respect to which payments prior to a final
adjudication have been made to the claimant
in accordance with [20 C.F.R.] § 725.522,
except upon the motion or written agreement
of the Director.

20 C.F.R. § 725.465(d).

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J.A.

82

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(“Since

Pg: 11 of 26

[Claimant]

did

not

have

pneumoconiosis,

[Mrs. Vest’s] black lung survivor’s claim must be denied.”). 7
Inasmuch as neither Mrs. Vest nor the Director filed an appeal
or otherwise contested ALJ Tureck’s decision, it became final on
December 3, 2008.

See 33 U.S.C. § 921(a) (“A compensation order

. . . shall become final at the expiration of the thirtieth day”
after it is “filed in the office of the deputy commissioner.”).
On January 27, 2009, ALJ Miller issued his second
decision and order awarding living miner’s benefits to Claimant
under the BLBA.
responsible
sufficient

In addition to holding Petitioner liable as the

operator,
to

ALJ

establish

Miller
that

determined

Claimant

7

the

suffered

evidence
from

was

totally

Although the underlying merit of Mrs. Vest’s benefits
determination is not at issue in this appeal, we are compelled
to note that ALJ Tureck found “the [negative] CT scan
interpretations by Dr. [Paul] Wheeler,” an Associate Professor
of Radiology at the Johns Hopkins Medical institutions, to be
“most probative” in concluding that Claimant did not suffer from
pneumoconiosis.
J.A. 82.
Dr. Wheeler’s opinions have since
been challenged in a joint investigation by ABC News and the
Center for Public Integrity (“CPI”), which found that he had
never once, in reading more than 3,400 x-rays over the course of
thirteen
years,
interpreted
an
x-ray
as
positive
for
pneumoconiosis.
The DOL recently issued a bulletin instructing
its district directors to “(1) take notice of this reporting and
(2)
not
credit
Dr.
Wheeler’s
negative
readings
for
pneumoconiosis in the absence of persuasive evidence either
challenging
the
CPI
and
ABC
conclusions
or
otherwise
rehabilitating Dr. Wheeler’s readings.”
Div. of Coal Mine
Workers’ Comp., U.S. Dep’t of Labor, BLBA Bulletin No. 14-09
(June 2, 2014), available at http://www.dol.gov/owcp/dcmwc/
blba/indexes/BL14.09OCR.pdf.

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disabling

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clinical

and

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legal

complicated pneumoconiosis.

pneumoconiosis

as

well

as

Following this decision, Petitioner

filed a motion to dismiss, which ALJ Miller denied, and a motion
for

reconsideration,

Colwell”) denied.
The
denying

BRB

which

ALJ

William

S.

Colwell

(“ALJ

Petitioner timely appealed both orders.
affirmed

reconsideration

the

on

benefits

September

award

27,

and

2012.

the

order

Petitioner

unsuccessfully sought reconsideration before the BRB, and this
petition for review followed.

We have jurisdiction pursuant to

33 U.S.C. § 921(c). 8

8

Prior to oral argument in this case, we directed the
parties
to
be
prepared
to
address
the
jurisdictional
implications of the petition for review to this court, in which
Petitioner sought “review of the order of the [BRB] . . . issued
on February 25, 2013, affirming the decision and order of the
[BRB] dated September 27, 2012.” J.A. 1. Because the February
25, 2013 order referenced in the petition was a summary order
denying Petitioner’s motion for reconsideration, over which we
do not have jurisdiction, see Betty B Coal Co. v. Dir., OWCP,
194 F.3d 491, 496 (4th Cir. 1999), we questioned whether
Petitioner had adequately preserved the BRB’s September 27, 2012
final order for our review. During oral argument, however, the
Director
conceded
that,
despite
Petitioner’s
inartful
presentation, its intent to appeal the final order was clear.
See MLC Automotive, LLC v. Town of Southern Pines, 532 F.3d 269,
279 (4th Cir. 2008) (noting parenthetically that “‘a party may
demonstrate its intention to appeal from one order despite
referring only to a different order in its petition for review
if the petitioner’s intent can be fairly inferred from the
petition or documents filed more or less contemporaneously with
it,’” and that “‘without a showing of prejudice by the appellee,
technical errors in the notice of appeal are considered
harmless’” (quoting Indep. Petrol. Ass’n of Am. v. Babbitt, 235
F.3d 588, 593 (D.C. Cir. 2001))).

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II.
We review the BRB’s conclusions of law de novo. See
Collins v. Pond Creek Min. Co., --- F.3d ----, 2014 WL 1711718,
at *3 (4th Cir. 2014).
exclusively

to

the

In so doing, “our review is confined

grounds

actually

invoked

by

the

[BRB].”

Island Creek Coal Co. v. Henline, 456 F.3d 421, 426 (4th Cir.
2006) (internal quotation marks omitted).
III.
Petitioner raises two arguments on appeal.
contends

20

impermissibly

C.F.R.

§

curtailing

725.465(d)
the

ALJ’s

violates

First, it

the

discretion.

APA

Second,

by
it

contends the BRB erred in failing to give preclusive effect to
ALJ Tureck’s finding that Claimant did not have pneumoconiosis.
We address each argument in turn.
A.
We
§ 725.465(d).
and

permits

begin

with

Petitioner’s

challenge

to

20

C.F.R.

Section 725.465 is titled “dismissals for cause”
an

ALJ

to

dismiss

a

claim

prior

to

a

final

adjudication of eligibility when (1) a claimant fails to attend
a hearing without good cause, (2) a claimant fails to comply
with a lawful order, or (3) there has been a prior lawful final
adjudication

of

a

§ 725.465(a)(1)-(3).

claim

or

defense.

See

20

C.F.R.

The specific subsection at issue here, 20

C.F.R. § 725.465(d), prohibits an ALJ from dismissing a claim
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that otherwise meets these eligibility requirements “in a case
with respect to which payments prior to a final adjudication
have been made to the claimant in accordance with [20 C.F.R.]
§ 725.522” –- i.e., those cases in which the Trust Fund has paid
interim benefits pending final adjudication -- “except upon the
motion or written agreement of the Director.”

Id. § 725.465(d).

In

observed,

terms

of

Claimant’s

case,

as

ALJ

Miller

“[t]he

Director invoked § 725.465(d)” in response to the show cause
order, “preclud[ing] dismissal without the Director’s consent.”
J.A. 53. 9
Petitioner contends 20 C.F.R. § 725.465(d) is invalid
on

its

face

because

it

interferes

with

an

ALJ’s

independent

decision-making authority under the APA, specifically 5 U.S.C.
§§ 554(d)(1), 554(d)(2), and 556(b). 10

In Petitioner’s view, the

9

We decline the Director’s invitation to find Petitioner’s
challenge to this regulation waived.
See Toler v. Eastern
Assoc. Coal Corp., 43 F.3d 109, 113 (4th Cir. 1995) (“[W]aiver
is a nonjurisdictional doctrine that calls for flexible
application.” (citation omitted)).
Although Petitioner did not
articulate its argument below in terms of the APA, it did
challenge the Director’s standing, premised upon 20 C.F.R.
§ 725.465(d), to pursue the case to a merits determination in
Claimant’s absence.
See id. (rejecting waiver argument where
petitioner asserted the same fundamental claim before the agency
and district court, but used different arguments in each forum
to press that claim).
10

Section 422(a) of the BLBA, 30 U.S.C. § 932(a),
incorporates Section 19(d) of the Longshore and Harbor Workers’
Compensation Act (“LHWCA”), 33 U.S.C. § 919(d), which in turn
requires that hearings be conducted in accordance with the APA,
(Continued)
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regulation

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“impermissibly

Pg: 15 of 26

cabins

an

ALJ’s

discretion

by

requiring the Director’s consent in order to dismiss a claim.”
Appellant’s Br. 9.

This, Petitioner claims, is in violation of

the provisions of the APA that require an ALJ to make decisions
in an “impartial manner,” 5 U.S.C. § 556(b), and prohibit an ALJ
from “consult[ing] a person or party on a fact in issue . . .
[without]

notice

participate,”

and

id.

opportunity

§ 554(d)(1),

or

for

“be[ing]

all

parties

responsible

to

to

or

subject to the supervision or direction of an employee or agent
engaged

in

the

performance

of

investigative

or

prosecuting

functions for an agency,” id. § 554(d)(2).
Petitioner’s argument is meritless.

As we have noted,

the Director is a party to all benefits proceedings under the
BLBA,

responsible

for

both

protecting the Trust Fund.
Fund

makes

interim

benefit

administering

the

statute

and

In cases where, as here, the Trust
payments,

the

Director

is

also

responsible for seeking reimbursement from either the employer
or the claimant upon final adjudication of the claim.

See 30

20 C.F.R. § 725.452(a); see also Dir., OWCP v. Greenwich
Collieries, 512 U.S. 267, 271 (1994) (“The BLBA . . .
incorporates the APA (by incorporating parts of the LHWCA), but
it does so ‘except as otherwise provided . . . by regulations of
the Secretary.’” (quoting 30 U.S.C. § 932(a))); Bethlehem Mines
Corp. v. Henderson, 939 F.2d 143, 148 (4th Cir. 1991) (“The
requirements of the APA are . . . applicable to [DOL] black lung
adjudications[.]”).

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U.S.C.

Filed: 07/03/2014

§ 934(b)(4)(B)

Pg: 16 of 26

(requiring

the

operator’s

liability

be

“finally determined” before the reimbursement obligation may be
enforced);

20

C.F.R.

§ 725.522(c)

“determined”

(requiring

before

the

claimant’s

eligibility

be

overpayments

may

be

recovered).

As the BRB stated more than twenty years ago, in

rejecting an identical challenge to the same regulation:
The Director . . . has a direct financial
interest in the outcome in cases arising
under the [BLBA] in which the Trust Fund has
paid interim benefits or medical benefits
pending
a
final
determination
of
eligibility. Therefore, when the Trust Fund
has commenced benefit payments to claimant
prior
to
a
final
determination
of
entitlement, the Director, as trustee of the
Trust Fund, must be afforded the opportunity
to recoup Trust Fund expenditures in the
event
that
the
award
of
benefits
is
ultimately reversed on final adjudication.
It follows that the Director’s consent must
be obtained before a case in which the Trust
Fund has paid interim or medical benefits
may be dismissed.
Boggs v. Falcon Coal Co., 17 Black Lung Rep. 1-62, 1-66 (Ben.
Rev.

Bd.

footnotes

1992)

(emphasis

omitted).

supplied)

Petitioner’s

(internal

efforts

to

citations
discredit

and
this

opinion notwithstanding, 11 it retains its persuasive force.

11

Petitioner cites to Greenwich Collieries and Dir., OWCP
v. Newport News Shipbuilding & Dry Dock Co. (“Harcum”), 514 U.S.
122 (1995), for the proposition that the Supreme Court has,
post-Boggs, rejected the BRB’s “approach.”
Appellant’s Br. 10.
These two cases are inapposite.
In Greenwich Collieries, for
example, the Director took the position that an existing BLBA
regulation permitted it to deviate from an APA standard. See 30
(Continued)
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Further,
regulation
725.465(d),

and
by

we

the
its

see

no

cited
plain

Pg: 17 of 26

conflict

provisions

between
of

language,

the

the

challenged

APA.

cannot

Section

reasonably

be

interpreted to permit the Director to “supervis[e] or direct[]”
an

ALJ

in

the

performance

of

his

advise” in an ALJ’s decision.

duties

or

“participate

5 U.S.C. § 554(d)(2).

or

To the

contrary, as the Director points out, the regulation does not
dictate

any

particular

result,

only

that

the

DOL

make

“some

final determination on the merits when . . . the Trust Fund has
paid

interim

original),

so

benefits,”
that

the

Appellee’s
Director

Br.
may

30

(emphasis

thereafter

reimbursement of the Fund from the appropriate party.

in
seek

In so

doing, the regulation does not implicate an ALJ’s impartiality
under 5 U.S.C. § 556(b), but “simply protects the interests of
the Trust Fund, and ensures that the Director, as a party to the
litigation, receives a complete adjudication of his interests,”
65 Fed. Reg. 79920-01, 80005 (December 20, 2000) (discussing a

U.S.C. § 932(a) (The BLBA incorporates the APA “except as
otherwise provided . . . by regulations of the Secretary.”
(emphasis supplied)). The Supreme Court rejected the Director’s
argument, concluding that a regulation must unambiguously reject
an APA standard in order to preclude its incorporation into the
BLBA under 30 U.S.C. § 932(a).
See Greenwich Collieries, 512
U.S. at 271.
Harcum involved a question of the Director’s
standing to appeal an award of disability benefits under the
LHWCA and did not touch on the APA provisions that are relevant
to this case. See Harcum, 514 U.S. at 132-36.

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similar regulation, 20 C.F.R. § 725.465(b), that prohibits the
ALJ from dismissing the operator designated as the responsible
operator without the Director’s consent).
The Secretary is statutorily authorized to promulgate
regulations “appropriate to carry out the provisions” of the
BLBA

in

accordance

with

provisions of the APA.

the

notice-and-comment

rule-making

30 U.S.C. § 936(a); see also Smiley v.

Citibank (South Dakota), N.A., 517 U.S. 735, 741 (1996) (APA
notice

and

comment

“designed

to

assure

due

deliberation”).

Section 725.465(d) originated from just such an exercise of this
“broad authority.”

Elm Grove Coal Co. v. Dir., OWCP, 480 F.3d

278, 293 (4th Cir. 2007).
regulation

under

Chevron,

We are therefore bound to uphold this
U.S.A.,

Inc.

v.

Nat’l

Res.

Def.

Council, 467 U.S. 837, 842–43 (1984), unless it is “procedurally
defective, arbitrary or capricious in substance, or manifestly
contrary to the statute.”

United States v. Mead Corp., 533 U.S.

218, 227 (2001) (citing 5 U.S.C. §§ 706(2)(A), (D))).
no such flaw here.

We find

The Director, as trustee of the Fund and

administrator of the BLBA, is a real party in interest in the
category of claims exempted from summary dismissal by 20 C.F.R.
§ 725.465(d), and the Secretary has, consistent with the APA,
determined that the Director should be entitled to fully pursue
his interests in order to maintain the Fund’s fiscal integrity

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and

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promote

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the

BLBA’s

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compensatory

purpose.

We

will

not

second-guess that decision.
B.
We turn next to Petitioner’s contention that the BRB
erred in failing to accord preclusive effect to the finding,
made in ALJ Tureck’s November 3, 2008 decision in Mrs. Vest’s
survivor’s

claim,

that

Claimant

did

not

have

pneumoconiosis.

The Director counters that Petitioner waived this defense by not
raising

it

until

after

ALJ

Miller

had

fully

adjudicated

Claimant’s claim, or, in the alternative, that Petitioner cannot
establish the fifth element of the defense, namely, “that the
party against whom collateral estoppel is asserted ‘had a full
and

fair

forum.’”

opportunity

(4th

to

litigate

the

issue

in

the

previous

Collins v. Pond Creek Mining Co., 468 F.3d 213, 217

Cir.

2006)

(“Collins

I”)

(quoting

Sedlack

v.

Braswell

Servs. Group, Inc., 134 F.3d 219, 224 (4th Cir. 1998)).
1.
The doctrine of collateral estoppel, also termed issue
preclusion, bars “successive litigation of an issue of fact or
law

actually

litigated

and

resolved

in

a

valid

court

determination essential to the prior judgment, even if the issue
recurs

in

the

context

of

a

different

claim.”

Taylor

v.

Sturgell, 553 U.S. 880, 891 (2008) (internal quotation marks
omitted); see also In re Microsoft Corp. Antitrust Litig., 355
19

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F.3d 322, 326 (4th Cir. 2004).
fact

in

administrative

Pg: 20 of 26

We have held that findings of

adjudications

of

black

lung

benefits

claims “are to be accorded the same collateral estoppel effect
they would receive if made by a court.”

Collins I, 468 F.3d at

217 (citing Jones v. SEC, 115 F.3d 1173, 1178 (4th Cir. 1997)).
We require the party invoking collateral estoppel to establish
the following elements:
(1) that “the issue sought to be precluded
is identical to one previously litigated”
(“element one”); (2) that the issue was
actually determined in the prior proceeding
(“element
two”);
(3)
that
the
issue’s
determination was “a critical and necessary
part
of
the
decision
in
the
prior
proceeding” (“element three”); (4) that the
prior judgment is final and valid (“element
four”); and (5) that the party against whom
collateral estoppel is asserted “had a full
and fair opportunity to litigate the issue
in the previous forum” (“element five”).
Collins I, 468 F.3d at 217 (quoting Sedlack, 134 F.3d at 224).
Here, the BRB rested its decision on the fifth element
of this test, concluding that Claimant was “the party against
whom the doctrine is being asserted” and did not have a “full
and fair” opportunity to litigate the issue of pneumoconiosis in
Mrs. Vest’s case because he was deceased.

J.A. 13-14.

Under

the Chenery doctrine, 12 then, our review of the BRB’s decision to

12

The Chenery doctrine provides, “an administrative order
cannot be upheld unless the grounds upon which the agency acted
in exercising its powers were those upon which its action can be
(Continued)
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reject Petitioner’s collateral estoppel defense is limited to
this element.

See Island Creek Coal Co. v. Henline, 456 F.3d

421, 426 (4th Cir. 2006) (“Affirming the Board’s [decision] on
an alternative ground not actually relied upon by the Board is
prohibited under the Chenery doctrine.”).

We thus decline to

address the Director’s alternative waiver argument and proceed
to the merits of Petitioner’s claim.

See Grigg v. Dir., OWCP,

28 F.3d 416, 418 (4th Cir. 1994) (noting that we are “unable to
affirm” on a ground not relied on by the BRB, “even if we were
so inclined.” (citations omitted)).
2.
In order to evaluate whether “the party against whom
collateral estoppel is asserted” was adequately represented in
the

prior

proceeding,

Collins

I,

468

F.3d

at

217

(citation

omitted), we must first identify the operative “party.”
front,

it

estoppel

is

clear

argument

that

Petitioner

directs

against

Claimant’s

living

its

On this

collateral

miner’s

claim,

regardless of its current ownership, and that the Director’s

sustained.”
SEC v. Chenery Corp., 318 U.S. 80, 95 (1943).
We
have held that this doctrine applies to black lung claims. See
Henline, 456 F.3d at 426 (“[I]n reviewing an order of the Board
directing payment of black lung benefits, our review is confined
exclusively to the grounds actually invoked by the Board.”
(citing Gulf & W. Indus. v. Ling, 176 F.3d 226 (4th Cir.
1999))).

21

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interest

in

Filed: 07/03/2014

pursuing

this

case

Pg: 22 of 26

is

wholly

derivative

limited by, Claimant’s eligibility for the same.
agree

with

against

the

whom

BRB
to

that

Claimant

measure

is

the

Petitioner’s

of,

and

We therefore

appropriate
collateral

“party”
estoppel

defense. 13
It is undisputed that Claimant was deceased when Mrs.
Vest brought her survivor’s action and, as such, was not a party
to her claim.

As observed by the Supreme Court, “[a] person who

was not a party to a suit generally has not had a ‘full and fair
opportunity to litigate’ the claims and issues settled in that
suit,”

such

that

“[t]he

application

of

claim

and

issue

preclusion to nonparties . . . runs up against the ‘deep-rooted
historic

tradition

court.’”

Taylor,

that

everyone

should

have

553

U.S.

892-93

(quoting

at

his

Jefferson Cnty., Ala., 517 U.S. 793, 798 (1996)).

own

day

in

Richards

v.

Consequently,

“collateral estoppel ordinarily applies only against persons who
13

The Director, although a party to Mrs. Vest’s claim, was
not entitled to appeal ALJ Tureck’s decision to the BRB because
he was not “aggrieved” by the denial of benefits.
20 C.F.R.
§ 802.201(a). As such, even if we were to view the Director as
the “party against whom collateral estoppel is asserted” for the
purposes of this appeal, it is evident that he did not have a
“full and fair opportunity to litigate the issue in the previous
forum” as a matter of law. Collins I, 468 F.3d at 217 (internal
quotation marks omitted); see also 62 Fed. Reg. 3338-01, 3353
(Jan. 22, 1997) (noting that a party in a black lung proceeding
may not be bound by an ALJ’s prior finding if the party was not
entitled to appeal the decision in which that finding was made
to the BRB).

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were parties to the prior suit.”

Martin v. Am. Bancorp. Ret.

Plan, 407 F.3d 643, 654 n.18 (4th Cir. 2005) (internal quotation
marks omitted); see also Taylor, 553 U.S. at 893.

Like other

rules, however, “the rule against nonparty preclusion is subject
to exceptions.”

Taylor, 553 U.S. at 893.

In Taylor, the Supreme Court enumerated six categories
of historically-accepted exceptions where preclusion principles
may be applied to a person who was not a party to the first
proceeding.

The

Eleventh

Circuit

has

summarized

these

exceptions as follows:
A court may apply nonparty preclusion if:
(1) the nonparty agreed to be bound by the
litigation of others; (2) a substantive
legal
relationship
existed
between
the
person to be bound and a party to the
judgment; (3) the nonparty was adequately
represented by someone who was a party to
the suit; (4) the nonparty assumed control
over the litigation in which the judgment
was
issued;
(5)
a
party
attempted
to
relitigate issues through a proxy; or (6) a
statutory
scheme
foreclosed
successive
litigation by nonlitigants.
Griswold v. Cnty. of Hillsborough, 598 F.3d 1289, 1292 (11th
Cir. 2010) (citing Taylor, 553 U.S. at 893-95).
Court

has

cautioned,

however,

23

that

these

The Supreme

categories

are

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“discrete

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exceptions

that

Pg: 24 of 26

apply

in

limited

circumstances.”

Taylor, 553 U.S. at 898 (internal quotation marks omitted). 14
Petitioner neither cites Taylor nor explicitly argues
that this case fits any of the recognized exceptions.

It does,

however, argue that issue preclusion is appropriate here because
Claimant

and

Mrs.

Vest

were

in

“a

fiduciary

relationship.”

Appellant’s Br. 20 (citing Sea-Land Servs. v. Gaudet, 414 U.S.

14

Notably, nonmutual collateral estoppel may be invoked
either offensively, by a plaintiff who “seeks to foreclose the
defendant from litigating an issue the defendant has previously
litigated unsuccessfully in an action with another party,” or,
as in this case, defensively, by a defendant who seeks to bar a
plaintiff from relitigating an issue previously decided in its
favor in a suit involving another plaintiff.
See Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4 (1979). It is only
in the latter category –- where a party to a prior judgment
seeks to bind a nonparty to that judgment in a subsequent
proceeding -- that the specific, delineated categories set forth
in Taylor come into play. See Taylor, 553 U.S. at 892 (setting
forth explicit limitations on “[t]he application of claim and
issue preclusion to nonparties” of the proceeding sought to be
given preclusive effect (emphasis supplied)); see also Parklane,
439 U.S. at 327 (emphasizing the “obvious difference in position
between a party who has never litigated an issue and one who has
fully litigated and lost”).
The instant case is thus readily
distinguishable from our line of cases permitting the widow of
a black lung benefits recipient to use offensive nonmutual
collateral estoppel to establish pneumoconiosis in a survivor’s
action against her husband’s employer.
See, e.g.,
Collins I,
468 F.3d at 222-23.
In such claims, “[a]lthough the widow was
not a party to the miner’s claim, [the employer] itself was.
Treating [the employer] as bound by the outcome is a
straightforward
application
of
offensive
nonmutual
issue
preclusion.” Zeigler Coal Co. v. Dir., OWCP, 312 F.3d 332, 334
(7th Cir. 2002) (emphasis supplied) (citation omitted).

24

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573 (1974)).

Pg: 25 of 26

In so doing, it effectively invokes Taylor’s third

category, which provides,
“in
certain
limited
circumstances,”
a
nonparty may be bound by a judgment because
[]he was “adequately represented by someone
with the same interests who [wa]s a party”
to the suit.
Richards, 517 U.S. at 798
(internal
quotation
marks
omitted).
Representative suits with preclusive effect
on nonparties include . . . suits brought by
trustees, guardians, and other fiduciaries,
see [Gaudet, 414 U.S. at 593]. See also 1
[Restatement (Second) of Judgments] § 41.
553 U.S. at 894-95.
“[a]

party’s

The Supreme Court went on to stress that

representation

of

a

nonparty

is

‘adequate’

for

preclusion purposes only if, at a minimum: (1) the interests of
the

nonparty

either

the

and

h[is]

party

representative

representative

understood

capacity

or

are

aligned,

to

be

herself

the

original

protect the interests of the nonparty.”

and

acting

court

took

in

care

(2)
a
to

Id. at 900 (emphasis

supplied) (internal citations omitted).
Petitioner theorizes that Mrs. Vest was a fiduciary –or “adequate representative,” in the language of Taylor -- for
Claimant

because

benefits claim.

of

the

“derivative”

Appellant’s Br. 20.

nature

of

her

spousal

To the contrary, however,

Mrs. Vest survivor’s claim is a distinct cause of action that
she filed in her own name, on her own behalf, and for her own
award of benefits.

See, e.g., Charles v. Director, OWCP, 1 F.3d

251, 254 (4th Cir. 1993) (“[A] survivor’s benefit . . . is the
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personal claim of the dependent spouse, child, or parent.”).
Indeed, Mrs. Vest was not even entitled to file such a claim
prior to Claimant’s death.

See 30 U.S.C. § 901(a).

The interests of a miner and his survivor with respect
to establishing the miner’s pneumoconiosis are plainly aligned.
But

the

record

is

devoid

of

any

indication

that

Mrs.

Vest

“understood herself to be acting in a representative capacity”
for

her

deceased

spouse

or

that

ALJ

protect” Claimant’s separate interests.
900.

Tureck

“took

care

to

Taylor, 553 U.S. at

Without something more, Petitioner is not entitled to hold

a nonparty miner to the result reached in his widow’s claim.

We

therefore

to

agree

with

the

BRB

that

Petitioner

has

failed

establish Claimant had a “full and fair” opportunity to litigate
the pneumoconiosis issue in Mrs. Vest’s case.

Collins I, 468

F.3d at 217 (citation omitted).
III.
For the foregoing reasons, we deny the petition for
review.
PETITION DENIED

26