Burton v. Drummond Company Inc

Filing 16

MEMORANDUM OPINION. Signed by Judge R David Proctor on 10/12/2018. (KAM)

FILED
2018 Oct-12 AM 11:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

VERBY BURTON,
Plaintiff,
v.
DRUMMOND COMPANY INC,
Defendant.

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Case No.: 2:18-cv-00795-RDP

MEMORANDUM OPINION
This matter is before the court on Defendant’s Motion to Dismiss. (Doc. # 5). The Motion
requires the court to decide whether it has subject matter jurisdiction over Plaintiff’s claim and, if
so, whether Plaintiff has stated a claim upon which relief can be granted. See Fed. R. Civ. P.
12(b)(1), 12(b)(6). The court concludes the answer to both is yes. Thus, as more fully explained
below, Defendant’s Motion to Dismiss is due to be denied.
I.

Factual and Procedural Background
Plaintiff Verby Burton is the widow of a deceased coal miner, Allan Burton, who

Defendant Drummond Company employed to work in its coal mines in Alabama. (Doc. # 1 at
¶¶ 8-12). Allan Burton died in 2015 from coal workers’ pneumoconiosis, commonly known as
black lung disease. (Doc. # 15 at 9).
Prior to his death, Allan Burton filed a claim for benefits under the Black Lung Benefits
Act (“BLBA”) with the Department of Labor (“DOL”). (Doc. # 1 at ¶ 13; Doc. # 15 at 4-7).
After his death, Verby Burton filed an additional and separate claim for survivor’s benefits under
the Act. (Doc. # 1 at ¶ 14; Doc. # 15 at 11-12). The DOL granted both Allan and Verby Burton’s

claims. (Id. at ¶¶ 15-22; Doc. # 15 at 24-55, 91-100). On Allan’s claim, the DOL ordered
Drummond to (1) pay $12,197.90 in retroactive benefits to Verby (on behalf of Allan) and (2)
reimburse the Black Lung Disability Trust Fund $18,897.70 for interim benefits paid to Allan
prior to his death. (Doc. # 15 at 54). On Verby’s claim, the DOL ordered Drummond to (1) begin
paying Verby monthly benefits of $644.50 per month and (2) reimburse the Trust Fund
$12,832.40 for interim benefits paid to Verby beginning in April 2015, when the DOL initially
determined she was eligible for benefits. (Id. at 99). In its compensation orders, the DOL
informed Drummond that “by failing to initiate benefits . . . within 10 days of the date payment
is due, [Drummond] may be subject to payments of additional compensation of up to 20% of the
amount due,” pursuant to 33 U.S.C. § 914(f) and 20 C.F.R. § 725.607. (Doc. # 15 at 55, 100).
The orders also explained that “failure to pay benefits as ordered may result in enforcement of
the final award in Federal District Court” and that “[a]n appeal does not stay this penalty unless
an Order staying payments has been issued by the Board or Court.” (Id.).
Drummond declined to pay the benefits and instead appealed the decisions of the
administrative law judges (“ALJs”) to the Benefits Review Board. See 33 U.S.C. § 921(b);
(Docs. # 1 at ¶ 26; 5-1 at 2-4). Drummond did not obtain an order staying payment of the
benefits from the Board (Doc. # 1 at ¶ 24), so the compensation orders became effective, and
payment became due, after the orders issued. 20 C.F.R. § 725.502(a)(1). Because Drummond
failed to pay the benefits it owed Verby Burton during the pendency of its appeals, the Black
Lung Disability Trust Fund began paying Verby Burton’s benefits as provided for by statute, 26
U.S.C. § 9501(d)(1)(A), and the BLBA’s implementing regulations, 20 C.F.R. § 725.522(a).
(Doc. # 1 at ¶ 25).
The Benefits Review Board eventually affirmed in part and vacated in part the ALJ’s

2

decision on Allan Burton’s claim and remanded the claim to the ALJ. (Doc. # 15 at 106-12). On
remand, the ALJ considered additional medical evidence as required by the Board’s decision but
again awarded benefits on behalf of Allan Burton. (Id. at 127-37). Drummond then withdrew its
appeal of Verby Burton’s claim based on its earlier concession that Verby would be
automatically entitled to benefits if Allan’s claim succeeded. (Id. at 139; Doc. # 5-1 at 3). The
DOL’s compensation order awarding benefits on Verby Burton’s claim (Doc. # 15 at 99-100)
became final after Drummond withdrew its appeal. The DOL also issued a new compensation
order following the ALJ’s decision on remand regarding Allan Burton’s claim. (Id. at 142). That
compensation order awarded the same benefits as the DOL’s first compensation order on Allan
Burton’s claim—$12,197.90 in retroactive benefits to Verby Burton (on behalf of Allan) and a
reimbursement of $18,897.70 to the Black Lung Disability Trust Fund for interim benefits paid
to Allan prior to his death. (Id.). Once the compensation orders became final, Drummond paid all
of the benefits listed in the final compensation orders and reimbursed the Trust Fund for
compensation it had paid Verby Burton during the pendency of Drummond’s appeals. (Doc. # 51 at 4).
On May 24, 2018, Verby Burton filed this action against Drummond seeking additional
compensation and interest she claims Drummond owes her under the DOL’s final compensation
orders, pursuant to 33 U.S.C. § 914(f) and 20 C.F.R. § 725.607. Before addressing the merits of
Ms. Burton’s claim, the court first reviews the relevant statutory framework.
II.

Federal Black Lung Program Statutory Framework
The federal black lung program derives from several related statutes. In 1969, Congress

enacted the Federal Coal Mine Health and Safety Act, Pub. L. No. 91-173, 83 Stat. 742 (1969)
(codified as amended at 30 U.S.C. § 801 et seq.). Title IV of that Act established a benefits

3

program for coal miners who were totally disabled by pneumoconiosis and for the surviving
dependents of miners who died from the disease. See 30 U.S.C. § 901. Congress has amended
Title IV several times since it was enacted, including once in 1972 through the Black Lung
Benefits Act, Pub. L. No. 92-303, 86 Stat. 150 (1972) and again in 1977 with the Black Lung
Benefits Reform Act of 1977, Pub. L. No. 95-239, 92 Stat. 95 (1978) (both codified as amended
at 30 U.S.C. § 901 et seq.). At the same time it passed the 1977 Reform Act, Congress also
passed the Black Lung Benefits Revenue Act of 1977, Pub. L. No. 95-227, 92 Stat. 11 (1978),
which established the Black Lung Disability Trust Fund. The Trust Fund exists to pay benefits if
no responsible coal mine operator can be identified or if the operator fails to pay benefits after
they become due. 26 U.S.C. § 9501(d)(1); 20 C.F.R. §§ 725.1(c), 725.522(a).
Under the Black Lung Benefits Act (“BLBA”) and its amendments, disabled miners or
their surviving dependents may file benefits claims with the Secretary of Labor, who is
responsible for processing the claims and awarding benefits where appropriate. See 30 U.S.C.
§§ 902(c), 932(a); 20 C.F.R. § 725.1(a), (c). The Secretary is also responsible for promulgating
the Act’s implementing regulations. 30 U.S.C. § 932(a); 20 C.F.R. § 725.1(a). Individual coal
mine operators are primarily liable for benefits, though, as explained above, the Trust Fund may
pay benefits if no responsible operator can be identified or if the operator fails to pay benefits
during the pendency of its appeal, after an initial finding of liability. 20 C.F.R. §§ 725.1(c),
725.522(a).
BLBA claims are first evaluated and adjudicated by a district director within the
Department of Labor. Id. §§ 725.350(b), 725.401. If either a BLBA claimant or a mine operator
is dissatisfied with the district director’s determination of benefits, the party may request a
hearing before an ALJ. Id. §§ 725.421, 725.451. Any party dissatisfied with an ALJ’s decision

4

may appeal to the Benefits Review Board, and the Board’s decisions are in turn reviewable by
the U.S. Courts of Appeals. 33 U.S.C. § 921(b)-(c); 20 C.F.R. §§ 725.481, 725.482.
Various procedural and other provisions contained in the Longshore and Harbor
Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq., govern the adjudication of
BLBA claims filed on or after January 1, 1974. See 30 U.S.C. § 932(a) (incorporating the
LHWCA’s provisions, subject to enumerated exceptions); 20 C.F.R. § 725.1(j). Among the
provisions of the LHWCA incorporated into the BLBA are 33 U.S.C. §§ 914(f) and 921(d). This
case turns on the operation of these two provisions.
Section 914(f) provides additional compensation for BLBA beneficiaries when an
operator fails to timely pay an award, unless the operator appeals the award and obtains an order
staying payment. Section 914(f) states:
If any compensation, payable under the terms of an award, is not paid within ten
days after it becomes due, there shall be added to such unpaid compensation an
amount equal to 20 per centum thereof, which shall be paid at the same time as,
but in addition to, such compensation, unless review of the compensation order
making such award is had as provided in [33 U.S.C. § 921] and an order staying
payment has been issued by the Board or court.
33 U.S.C. § 914(f). The BLBA’s implementing regulations provide that an award of benefits
“shall be considered due after the issuance of an effective order requiring the payment of benefits
by a district director, administrative law judge, Benefits Review Board, or court, notwithstanding
the pendency of . . . an appeal to the Board or court.” 20 C.F.R. § 725.502(a)(1). The only
exception to this rule is “where the payment of such benefits has been stayed by the Benefits
Review Board or appropriate court.” Id. The regulations further provide that § 914(f)’s provision
of additional compensation for late payments applies with equal force where an operator fails to
timely pay an award and the Trust Fund pays the benefits in its stead. See 20 C.F.R.

5

§ 725.607(b).1
Notably, § 914(f) does not contain an independent enforcement mechanism. It does not,
for instance, create a private right of action authorizing a BLBA beneficiary to sue in federal
court to collect 20 percent additional compensation. This is where § 921(d) comes into play.
Section 921(d) provides a private cause of action for BLBA beneficiaries to enforce a
final benefits award in federal court. Section 921(d) states:
If any employer . . . fails to comply with a compensation order making an award,
that has become final, any beneficiary of such award or the deputy commissioner
making the order, may apply for the enforcement of the order to the Federal
district court for the judicial district in which the injury occurred . . . . If the court
determines that the order was made and served in accordance with law, and that
such employer or his officers or agents have failed to comply therewith, the court
shall enforce obedience to the order by writ of injunction or by other proper
process, mandatory or otherwise, to enjoin upon such person and his officers and
agents compliance with the order.
33 U.S.C. § 921(d). Thus, § 921(d) grants BLBA beneficiaries the right to sue in federal court to
enforce a final compensation order2 making an award of benefits under the BLBA. A
compensation order becomes “final” 30 days after it is filed in the office of the district director,
unless a party appeals the order. 33 U.S.C. § 921(a).
Plaintiff’s claim presents the court with two issues. The first is whether a BLBA
beneficiary who is owed 20 percent additional compensation under § 914(f) may obtain that
additional compensation directly through an action in federal court under § 921(d) to enforce a
final compensation order, or whether such a beneficiary must first obtain a supplemental order
from the DOL awarding it the 20 percent additional compensation. The second is whether a
1

20 C.F.R. § 725.607(b) provides: “If, on account of an operator’s or other employer’s failure to [timely]
pay benefits . . . , benefit payments are made by the fund, the eligible claimant will nevertheless be entitled to
receive [additional compensation under § 914(f)] with respect to all amounts paid by the fund on behalf of such
operator or other employer.”
2

“Compensation order” is defined by the LHWCA as “[t]he order rejecting the claim or making the
award.” 33 U.S.C. § 919(e). Section 919(e) is among the LHWCA provisions incorporated into the BLBA. See 30
U.S.C. § 932(a).

6

BLBA beneficiary has a right to additional compensation under § 914(f) where a responsible
operator failed to timely pay compensation owed under the terms of an award but the Trust Fund
timely paid the compensation in the operator’s stead.
III.

Analysis
Drummond argues Ms. Burton’s claim should be dismissed because this court lacks

subject matter jurisdiction over it and because Ms. Burton has failed to state a claim upon which
relief can be granted. See Fed. R. Civ. P. 12(b)(1), 12(b)(6). For the reasons explained below, the
court concludes both that it has subject matter jurisdiction and that Ms. Burton has stated a claim.
A. The Court Has Subject Matter Jurisdiction Over Ms. Burton’s Claim
Drummond makes three arguments to support its Rule 12(b)(1) motion to dismiss: that
Ms. Burton lacks Article III standing, that no federal statute confers subject matter jurisdiction
over Ms. Burton’s claim, and that Department of Labor regulations deprive this court of
jurisdiction over Ms. Burton’s claim. The court disagrees, and addresses each argument in turn.
1. Ms. Burton Has Article III Standing
Drummond argues Ms. Burton lacks Article III standing because she was timely paid all
benefits owed to her under the BLBA, either by Drummond or the Trust Fund, and thus has
suffered no injury in fact. But that is obviously wrong. Ms. Burton’s claimed injury in this
lawsuit is not that she failed to receive the benefits she was initially awarded by the DOL but that
she has failed to receive the 20 percent additional compensation she has a right to under § 914(f).
Assuming Ms. Burton has a right to additional compensation under § 914(f) (an issue the court
will return to below), there is no doubt that Drummond’s failure to pay her that additional
compensation creates Article III standing. See Via Mat Int’l S. Am. Ltd. v. United States, 446
F.3d 1258, 1263 (11th Cir. 2006) (holding that economic harm constitutes an injury in fact).

7

2. Ms. Burton’s Claim Is Properly Brought Under 33 U.S.C. § 921(d)
Drummond’s second argument is a closer call. Drummond argues the court lacks subject
matter jurisdiction over Ms. Burton’s claim because § 921(d) only authorizes district courts to
enforce “a compensation order making an award, that has become final.” 33 U.S.C. § 921(d).
Here the DOL has not issued any order awarding Ms. Burton the 20 percent additional
compensation she seeks under § 914(f), let alone one that has become final. Thus, Drummond
argues Ms. Burton must first obtain a supplemental order from the DOL awarding her additional
compensation under § 914(f) before seeking to enforce her right to such compensation via a
§ 921(d) action in federal district court. This is an issue of first impression in the Eleventh
Circuit.
Drummond is correct that § 921(d) only authorizes district courts to enforce existing final
compensation orders issued by the DOL; it does not authorize district courts to make their own
independent awards of benefits under the BLBA. That much is explicit in the statute’s text,
which provides that a BLBA beneficiary “may apply for the enforcement of the order to the
[appropriate] Federal district court.” 33 U.S.C. § 921(d) (emphasis added). “[T]he order” refers
to the “compensation order making an award, that has become final” mentioned earlier in
§ 921(d). Id.
It is also true that § 914(f) does not create a private cause of action by which BLBA
beneficiaries may enforce their right to additional compensation under that statute. The statute
grants BLBA beneficiaries a substantive right to additional compensation under certain
circumstances, but it creates no mechanism to enforce that right. See 33 U.S.C. § 914(f). Because
the text of § 914(f) neither expressly supplies nor clearly implies a private right of action, this
court may not create one. See Alexander v. Sandoval, 532 U.S. 275, 287 (2001) (“Raising up

8

causes of action where a statute has not created them may be a proper function for common-law
courts, but not for federal tribunals.”).
Finally, it is also undisputed in this case that the DOL has not issued any order awarding
Ms. Burton the 20 percent additional compensation she seeks under § 914(f). The only final
compensation orders the DOL has issued in this case are its final order on Verby Burton’s claim
for survivor’s benefits3 and its final order on Allan Burton’s disability claim.4 Neither of those
orders expressly awarded Ms. Burton additional compensation under § 914(f) (though they did
state Ms. Burton would be eligible for § 914(f) additional compensation if Drummond failed to
timely pay her benefits). (Doc. # 15 at 99-100, 142).
However, it does not follow from these premises that Ms. Burton may not collect any
additional compensation owed to her under § 914(f) through a § 921(d) action in federal court.
To understand why this is so, one must pay careful attention § 914(f)’s text. Section 914(f) does
not give a beneficiary the right to an additional award of benefits equal to 20 percent of the
compensation that was not timely paid under a previous award. (Were that the case, a BLBA
beneficiary would be required to seek a supplemental order from the DOL granting it that
additional award before seeking to enforce the award through a § 921(d) action in federal court.)
Rather, § 914(f) simply increases the amount of compensation owed under an existing award of
benefits. See 33 U.S.C. § 914(f) (“If any compensation, payable under the terms of an award, is
not paid within ten days after it becomes due, there shall be added to such unpaid compensation
an amount equal to 20 per centum thereof, which shall be paid at the same time as, but in

3

The DOL issued its last order on Verby Burton’s claim on December 5, 2016 (Doc. # 15 at 99-100), and
the order became final (at the latest) on October 22, 2017 (30 days after Drummond withdrew and dismissed its
appeal of the claim). See 33 U.S.C. § 921(a); (Doc. # 15 at 139).
4

The DOL issued its last order on Allan Burton’s claim on October 5, 2017 (Doc. # 15 at 142), and it
became final on November 4, 2017. See 33 U.S.C. § 921(a).

9

addition to, such compensation.”) (emphasis added). In this action, Ms. Burton seeks to enforce
two final compensation orders pursuant to § 921(d). Thus, if the compensation Drummond was
ordered to pay in the DOL’s final compensation orders was compensation “payable under the
terms of an award,” and if Drummond failed to pay that compensation “within ten days after it
[became] due,” then § 914(f) automatically “added to” such compensation “an amount equal to
20 [percent] thereof.” Id. By virtue of Drummond’s failure to timely comply with the two orders
and the effect of § 914(f), the amount of compensation Drummond owes Ms. Burton under the
final compensation orders is 20 percent more than the amounts listed on the face of the orders. It
is for this reason that some courts have referred to § 914(f) as “self-executing” or “automatic.”
See Combs v. Elkay Min. Co., 881 F. Supp. 2d 728, 732 (S.D.W. Va. 2012) (collecting cases);
Byrge on behalf of Estate of Byrge v. Premium Coal Co. Inc., 301 F. Supp. 3d 785, 797-98 (E.D.
Tenn. 2017) (same).
The two final compensation orders Ms. Burton seeks to enforce in this case are the final
orders issued on Ms. Burton’s survivor claim and Mr. Burton’s disability claim. The DOL issued
its final compensation order on Ms. Burton’s claim on December 15, 2016 and ordered
Drummond to pay Ms. Burton monthly compensation in a specified amount and to reimburse the
Trust Fund for interim payments it made to Ms. Burton. (Doc. # 15 at 99). That compensation
was “payable under the terms of an award,”—namely, the December 15, 2016 final
compensation order. See 33 U.S.C. § 914(f). Drummond failed to pay that compensation “within
ten days after it [became] due,” id.; see also 20 C.F.R. § 725.502(a)(1), and instead chose to
appeal the award. Similarly, the DOL issued its final compensation order on Mr. Burton’s claim
on October 5, 2017 and ordered Drummond to pay Ms. Burton retroactive benefits on behalf of
Mr. Burton and to reimburse the Trust Fund for interim payments it made to Mr. Burton. (Doc.

10

# 15 at 142). That compensation was likewise “payable under the terms of an award,”—namely,
the earlier December 29, 2015 compensation order (Doc. # 15 at 54-55) that initially granted Mr.
Burton’s claim, which Drummond then (unsuccessfully) appealed. Yet again, Drummond failed
to timely pay the compensation due under the December 29, 2015 compensation order and
instead chose to appeal.
Thus, once Drummond was late in paying Ms. Burton the compensation it owed her
under the December 29, 2015 and December 5, 2016 compensation orders, the language of
§ 914(f) operated to add 20 percent additional compensation to the amount Drummond owed.
This was purely by operation of law, and it is of no consequence that the DOL’s final orders do
not themselves award Ms. Burton additional compensation under § 914(f). Indeed, § 914(f) does
not by its terms require any action by the Secretary to make its increase in the amount of
compensation owed effective. Rather, the statute simply “add[s] to” an operator’s outstanding
debt 20 percent additional compensation as soon as the debt is ten days past due. 33 U.S.C.
§ 914(f). Because the DOL’s compensation orders have “become final,” 33 U.S.C. § 921(d), Ms.
Burton is entitled to enforce those orders in federal district court and collect the full amount of
compensation Drummond owes her under the orders, including the 20 percent additional
compensation § 914(f) added to the amount Drummond owes.
3. Department of Labor Regulations Do Not Divest This Court of Jurisdiction
Over Ms. Burton’s Claim
Finally, Drummond also argues that the BLBA’s implementing regulations required Ms.
Burton to obtain a supplemental order awarding additional compensation under § 914(f) before
bringing this action. Specifically, Drummond points to the regulation codified at 20 C.F.R.
§ 725.601(b), which states: “In all cases payments of additional compensation . . . will be sought
by the Director or awarded by the district director.”
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The court notes that 20 C.F.R. § 725.601(b) does not by its terms prohibit a beneficiary
from seeking § 914(f) additional compensation in federal court. Rather, it simply states the
DOL’s policy that, in cases of additional compensation, the agency itself will seek or award the
compensation. Because § 921(d) permits either a “beneficiary” or “the deputy commissioner”5 to
enforce a final compensation order, 20 C.F.R. § 725.601(b) likely was not meant to foreclose a
beneficiary from seeking additional compensation in a § 921(d) action if the agency fail to do so.
But whatever the import of 20 C.F.R. § 725.601(b), an administrative agency’s
regulations cannot deprive a district court of jurisdiction that Congress has vested in it by statute.
Congress has vested district courts with jurisdiction of all civil actions arising under the laws of
the United States, 28 U.S.C. § 1331, and it has created a cause of action by which BLBA
beneficiaries may enforce final compensation orders in federal court, 33 U.S.C. § 921(d); 30
U.S.C. § 932(a). If Ms. Burton’s claim for additional compensation under § 914(f) falls within
the scope of § 921(d) (and, as explained above, the court concludes it does), then the court has
jurisdiction over Ms. Burton’s claim. Because Congress has vested this court with jurisdiction
over Ms. Burton’s claim by statute, the DOL’s regulations cannot divest it of jurisdiction, even
assuming the agency intended that result. The court thus concludes it has subject matter
jurisdiction over Ms. Burton’s claim.
B. Ms. Burton Has Stated a Claim for Relief
Drummond also argues this case should be dismissed because Ms. Burton has failed to
state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Specifically,
Drummond claims Ms. Burton has no right to additional compensation under § 914(f) because

5

Though LHWCA provisions refer to this official as the “deputy commissioner,” the Department of Labor
has renamed this official the district director. 20 C.F.R. § 725.101(a)(16).

12

she was timely paid all of the compensation owed to her.6 Again, this is an issue of first
impression in the Eleventh Circuit.
Section 914(f) provides for additional compensation “[i]f any compensation, payable
under the terms of an award, is not paid within ten days after it becomes due.” 33 U.S.C. § 914(f)
(emphasis added). It is undisputed that Drummond did not pay the compensation it owed Ms.
Burton within ten days after it became due. But Drummond argues that, because the Trust Fund
did pay Ms. Burton’s benefits during the pendency of Drummond’s appeals, the compensation
was paid within ten days after it became due (even if not by Drummond), and Ms. Burton
therefore has no right to additional compensation under the statute.
Section 914(f)’s use of the passive-voice phrase “is not paid” complicates what would
otherwise be a straightforward exercise in statutory interpretation. As the inimitable grammarian
Bryan Garner has explained, the passive voice often “fails to say squarely who has done what”
making it “a prime source of unclarity.” Bryan A. Garner, Garner’s Modern American Usage
592 (2d ed. 2003). Here, § 914(f)’s passive-voice phrase “is not paid” invites the question, not
paid by whom? Does § 914(f) mandate additional compensation when “compensation, payable
under the terms of an award” is not paid by anyone? Or does it require additional compensation
whenever an award is not paid by the responsible operator, even if some other entity (like the
Trust Fund) does pay the benefits? The statute does not expressly say one way or the other.
A passive-voice construction like “is not paid” can mean that the actor -- here, the one
6

Drummond also argues that the Secretary of Labor unlawfully departed from § 914(f) in promulgating 20
C.F.R. § 725.607(b) (which authorizes additional compensation even where the Trust Fund pays a claimant’s
benefits) and that the regulation is therefore arbitrary, capricious, and unenforceable in this case. The court need not
address this argument for two reasons. First, because Ms. Burton is not seeking to enforce an agency award of 20
percent additional compensation pursuant to 20 C.F.R. § 725.607(b), the court questions whether Drummond has
standing to challenge the regulation as arbitrary and capricious. Simply put, because the agency has taken no action
pursuant to the regulation, Drummond has not been “injured” by operation of the regulation. Second, even if
Drummond could properly challenge the regulation in this lawsuit, the court would find that it is not inconsistent
with § 914(f). As explained below, § 914(f) provides beneficiaries with additional compensation when an operator
fails to timely pay an award of benefits, even when the Trust Fund pays benefits in the operator’s stead.

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who does the paying -- is either unimportant or unknown. See Garner, supra, at 593. But the
passive voice need not and does not always mean that the identity of the relevant actor is
indeterminate or unimportant. “To the contrary, despite the passive voice, [a text’s] grammatical
and structural logic often point to particular, identifiable . . . actors.” Nicholas Quinn
Rosenkranz, The Objects of the Constitution, 63 Stan. L. Rev. 1005, 1012 (2011). Consider, for
example, Article I, Section 9 of the Constitution, which provides that “No Bill of Attainder . . .
shall be passed.” U.S. Const. art. I, § 9, cl. 3 (emphasis added). Like § 914(f), Article I, Section 9
invites the question, shall be passed by whom? Does that constitutional provision only forbid the
federal government from passing bills of attainder, or does its passive-voice phrasing mean it
also prohibits state governments from passing bills of attainder? The text does not say expressly,
but that does not mean the question is hopelessly indeterminable. Chief Justice Marshall tackled
this very question in Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) in the course of resolving a
dispute about another passive-voice constitutional provision, the Takings Clause. He began by
looking to grammatical and contextual clues in other provisions of the Constitution that could
shed light on Article I, Section 9’s passive-voice prohibition on bills of attainder. As it turns out,
“the very next section of the Constitution includes a clause identical in subject matter but
different in subject: ‘No State shall . . . pass any Bill of Attainder, [or] ex post facto Law . . . .’”
Rosenkranz, supra, at 1013 (quoting U.S. Const. art. I, § 10, cl. 1) (emphasis, omissions, and
alteration in original). Chief Justice Marshall thus “reasoned that the passive-voice version of
this clause must not restrict states, because otherwise the active, ‘No State shall’ version would
be superfluous.” Id. (citing Barron, 32 U.S. (7 Pet.) at 248-49). As Marshall’s careful reasoning
demonstrates, a text’s internal grammar, structure, and logic can meaningfully resolve
ambiguities created by the passive voice.

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Just as a nearby constitutional provision clarified the meaning of Article I, Section 9’s
passive-voice prohibition on bills of attainder in Barron, § 914(f)’s surrounding statutory context
similarly clarifies its meaning. That context reveals that § 914(f) supplies additional
compensation whenever compensation due under an award is not timely paid by the responsible
operator, even if some other entity (like the Trust Fund) does in fact timely pay the benefits.
Several features of § 914(f)’s statutory context dictate this conclusion.
First, the text of § 914(f) itself suggests that additional compensation is available
whenever a responsible operator fails to timely pay an award of benefits. The statute speaks of
compensation that is “payable under the terms of an award” and “is not paid within ten days after
it becomes due.” 33 U.S.C. § 914(f). The most natural reading of the text is that the person
responsible for paying compensation “within ten days after it becomes due” is the person
identified by the “terms of [the] award,” not some other person who is not even mentioned in the
award’s terms. Id. Here, the terms of the two awards Ms. Burton received expressly instructed
Drummond (not the Trust Fund) to pay Ms. Burton’s benefits. (Doc. # 15 at 54, 99). Because
Drummond failed to pay Ms. Burton’s benefits while it appealed the ALJs’ decisions, the
compensation “payable under the terms” of the awards against Drummond was “not paid” within
the meaning of § 914(f), even though Ms. Burton received compensation from the Trust Fund
while Drummond’s appeals were pending.
Second, it is important to remember that § 914(f) was originally enacted as part of the
Longshore and Harbor Workers’ Compensation Act (“LHWCA”) in 1927, and only some forty
years later (in 1969) incorporated by reference into Title IV of the Federal Coal Mine Health and
Safety Act. See Pub. L. No. 91-173, § 422(a), 83 Stat. 742, 796 (1969) (codified as amended at
30 U.S.C. § 932(a)) (incorporating various provisions of the LHWCA, including § 914(f)).

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Notably, the LHWCA did not create a trust fund to pay LHWCA benefits when a responsible
employer failed to do so. In the LHWCA context, the only potential payer of benefits is the
responsible employer. At least in the LHWCA context, then, § 914(f)’s phrase “[i]f any
compensation . . . is not paid” must mean “if any compensation is not paid by the responsible
employer”—the only entity conceivably responsible for paying compensation under the
LHWCA. To give § 914(f) a different interpretation in the BLBA context, one would have to
conclude that Congress, by incorporating § 914(f) into the BLBA, changed the meaning of the
statute without changing its words. The court concludes that Congress did no such thing.
Had Congress simultaneously incorporated § 914(f) into the BLBA and created the Black
Lung Disability Trust Fund, there might be an argument that Congress changed the meaning of
§ 914(f) without changing its words. Such an argument would go as follows: By creating the
Trust Fund, which compensates BLBA beneficiaries when responsible operators fail to do so,
Congress established another entity potentially responsible for paying BLBA benefits that simply
was not present under the LHWCA. Under the LHWCA, it was perfectly reasonable to read
§ 914(f)’s phrase “[i]f any compensation . . . is not paid” to mean “if any compensation is not
paid by the responsible employer”—since the responsible employer was the only entity that had
any business paying compensation under the LHWCA. But since Congress has now established
another entity potentially responsible for paying BLBA benefits (the Trust Fund), § 914(f)’s
phrase “[i]f any compensation . . . is not paid” should arguably (in the BLBA context) be
understood to mean “if any compensation is not paid by the responsible employer or the Trust
Fund.”
But this is all merely academic because Congress did not simultaneously incorporate
§ 914(f) into the BLBA and create the Black Lung Disability Trust Fund. To be sure, those two

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events were separated by some eight years. Congress incorporated § 14(f) of the LHWCA
(codified as amended at 33 U.S.C. § 914(f)) into Title IV of the Federal Coal Mine Health and
Safety Act in 1969. See Pub. L. No. 91-173, § 422(a), 83 Stat. 742, 796 (1969) (incorporating by
reference Pub. L. No. 69-803, § 14(f), 44 Stat. 1424, 1433 (1927)). Eight years later, Congress
passed the Black Lung Benefits Revenue Act of 1977, creating the Black Lung Disability Trust
Fund. See Pub. L. No. 95-227, § 3(a), 92 Stat. 11, 12 (1978) (creating the fund). Thus, when
Congress incorporated § 914(f) into the BLBA, the provision was doubtless understood to have
the same meaning it bore under the LHWCA. Accordingly, there can be no argument that
Congress silently changed the meaning of § 914(f) when it incorporated the provision into Title
IV of the Federal Coal Mine Health and Safety Act of 1969, as the Trust Fund was not created
until more than eight years later.
Nor can there be any argument that the creation of the Trust Fund in 1977 silently
changed the meaning of § 914(f) in BLBA cases. On this silent-amendment theory, the creation
of the Trust Fund would have relieved operators of significant liability under § 914(f), since they
would never be liable for additional compensation so long as the Trust Fund timely paid benefits
in their stead. But the statute creating the Trust Fund refutes that theory by providing that
“nothing in this section shall affect the rights, duties, or liabilities, of any operator in proceedings
under [30 U.S.C. § 9327].” Pub. L. No. 95-227, § 3(d), 92 Stat. 11, 14 (1978) (codified as
amended at 30 U.S.C. § 934(b)(1)(B)) (emphasis added). In short, the phrase “is not paid” in
§ 914(f) means the same thing under the BLBA that it meant under the LHWCA: not paid by the
responsible operator. Unless a responsible operator appeals an award of benefits and obtains an
order staying payment of the benefits, beneficiaries are entitled to 20 percent additional

7

Title 30 U.S.C. § 932 is the provision of the BLBA that incorporates various LHWCA provisions,
including § 914(f).

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compensation whenever the operator fails to pay compensation “payable under the terms of an
award” “within ten days after it becomes due.” 33 U.S.C. § 914(f). Thus, Ms. Burton has alleged
facts sufficient to raise her right to relief under § 914(f) “above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Drummond’s motion to dismiss for failure to state
a claim is accordingly due to be denied.
IV.

Conclusion
After careful review, the court concludes that Defendant’s Motion to Dismiss (Doc. # 5)

is due to be denied. An Order consistent with this Memorandum Opinion will be entered.
DONE and ORDERED this October 12, 2018.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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