IN THE UNITED
STATES DISTRICT COURT
FOR THE NORTHERN
DISTRICT OF WEST VIRGINIA
CLARKSBURG
DIVISION
GLORIA L. NOWLIN, |
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Plaintiff |
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v. |
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Civil Action No. 1:02 CV 51 |
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EASTERN ASSOCIATED COAL |
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CORPORATION, |
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Defendant |
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BRIEF OF AMICUS CURIAE,
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR
CONTENTS
INTRODUCTION
INTEREST OF AMICUS
ARGUMENT
CONCLUSION
CERTIFICATE OF COMPLIANCE
INTRODUCTION
Gloria
Nowlin, the widow of coal miner Malcolm Nowlin, asks this Court to enforce U.S.
Department of Labor ("DOL") Administrative Law Judge Clement J.
Kichuk's May 14, 1999 final order awarding compensation under the Black Lung
Benefits Act ("BLBA"), as amended (30 U.S.C. §§901-945). Pursuant to section 14(f) of the Longshore and
Harbor Workers' Compensation Act ("LHWCA"), Mrs. Nowlin claims that
she is entitled to twenty-percent additional compensation based on Eastern
Associated Coal Corporation's ("EACC") failure to pay benefits
covering eighteen of the twenty years that it took to litigate Malcolm Nowlin's
BLBA claim to finality. 33 U.S.C. §914(f), incorporated into the
BLBA by 30 U.S.C. §932(a); 20 C.F.R. §725.607.
Mrs. Nowlin brings this action under LHWCA section 21(d). 33 U.S.C. §921(d), incorporated into the
BLBA by 30 U.S.C. §932(a); 20 C.F.R. §725.604.
EACC has filed a motion to dismiss, claiming that Mrs. Nowlin was
required to obtain a supplementary default order from DOL before proceeding to
district court under section 21(d).
This
Court conducted a hearing to consider EACC's motion on November 25, 2002, and the
next day, issued an order directing the parties to ascertain "the
Department of Labor's interest, if any, in intervening or filing an amicus
brief in the pending litigation."
November 26, 2002 Order at 1.
The order also stated that "[t]he issue of concern to the Court is
whether a 20% penalty assessment imposed under Section 914(f) of the . . . BLBA
. . . can be enforced under Section 21(d) of the BLBA when a claimant has not
received a supplementary order declaring the amount of the default." Id. Although the parties have addressed additional issues in
connection with the pending motion to dismiss, we will address only the
question specified by the Court.
Having
filed her action under section 21(d), Mrs. Nowlin was not required to apply to
the DOL for a supplemental default order.
ALJ Kichuk's May 14, 1999 decision and order awarding benefits became
final after EACC failed to appeal the Benefits Review Board's June 22, 2000
affirmance of the ALJ's award. Pursuant to section 21(d), the ALJ's decision,
once final, entitled Mrs. Nowlin to "apply for the enforcement of"
that order to this Court. We urge the
Court to reject EACC's attempt to add a requirement for a supplementary default
order onto sections 14(f) and 21(d), neither of which contain such a
requirement.
We
detail the basis for this position in the argument section below, after
explaining the Director's interest as amicus in this case.
INTEREST OF AMICUS
The Secretary of Labor has
designated the Director, Office of Workers' Compensation Programs
("OWCP"), the administrator of several workers' compensation programs
falling within DOL's jurisdiction, including the LHWCA and the BLBA. 20 C.F.R. §701.202(a), (f). The Director therefore has a significant
administrative interest in the issue posed by the Court. See Director, OWCP v. Newport News
Shipbuilding, 8 F.3d 175, 180 (4th Cir. 1993) (Director has
standing under the LHWCA to petition for review of Benefits Review Board
decision when Board's decision "adversely affect[s] the Director's
legitimate administrative interests . . . . [such as] if a Board decision
substantially augmented the nature of the administrative duties delegated to
the Director, [or] increased the Director's necessary expenditure of
administrative resources . . . .").
Under EACC's theory, claimants
seeking to enforce an employer's section 14(f) liability in a section 21(d)
action would have to apply to the District Director – a subordinate of the
Director – before filing an action in district court. This procedure in a section 21(d) action
would be contrary to the Director's longstanding policy and practice and would
entail the additional expenditure of DOL administrative and fiscal
resources. The procedure EACC suggests is
neither required nor advisable, as explained in detail below.
ARGUMENT
A supplementary default order from the District Director
is not a prerequisite to filing an action to enforce a BLBA award under section
21(d).
A. Statutory and Regulatory Background
Procedures governing claims filed
under the BLBA are incorporated from the LHWCA, 33 U.S.C. §§919(a)-(c),
921(a)-(c) (except to the extent these provisions are overridden by superceding
sections of the BLBA or by regulations promulgated by the Secretary). See 30 U.S.C. §932(a) (listing LHWCA
provisions that are not incorporated into BLBA); Director, OWCP v. National
Mines Corp., 554 F.2d 1267, 1274 (4th Cir. 1977) (Secretary
of Labor has authority to depart from incorporated LHWCA provisions by
regulation). After a miner or his survivor
files a BLBA claim, the District Director notifies the potentially liable
parties, investigates the miner's health and employment history, and makes a
preliminary determination with respect to the claimant's eligibility for
benefits. The District Director also
determines which, if any, coal mine employer and insurance carrier should be
held responsible for paying the claim.
The liable coal mine employer is known as the responsible operator. 20 C.F.R. §§725.301-725.421. Any party dissatisfied with the District
Director's determination may request a hearing before an ALJ. 20 C.F.R. §§725.450-725.479. Any party aggrieved by an ALJ's decision may
appeal to the Department's Benefits Review Board, and then to the United States
Court of Appeals for the circuit in which the miner was exposed to coal mine
dust. 33 U.S.C. §921(a)-(c).
Filing an appeal does not, however,
relieve the responsible operator of its obligation to pay benefits during the
pendency of the appeal unless it obtains a stay of payment from the Benefits
Review Board or Court of Appeals based on a showing of "irreparable
injury." 33 U.S.C. §921(b)(3),
(c), incorporated by 30 U.S.C. §932(a).
Rather, upon the issuance of an effective award, the responsible
operator is legally obligated to commence the payment of monthly benefits, and
to pay the claimant any retroactive benefits ordered by the award (i.e.,
benefits for periods of disability before issuance of the award). An ALJ's decision is effective when it is
filed in the District Director's office in Washington, D.C., regardless of
whether it is appealed. 20 C.F.R.
§§725.478, 725.502(a)(2); e.g., Daugherty v. Director, OWCP, 897 F.2d
740, 742 (4th Cir. 1990).
If the responsible operator fails to
pay benefits due during the pendency of an appeal, as EACC did here, there are
two consequences. First, the Black Lung
Disability Trust Fund is statutorily required to pay the claimant the benefits
due. 26 U.S.C. §9501(a), (b), (d)(1)(A)(ii). Second, the operator becomes liable to the
claimant for an additional twenty-percent of the compensation it has failed to
pay. 33 U.S.C. §914(f), incorporated by
30 U.S.C. §932(a); 20 C.F.R. §725.607.
An employer's liability for the additional twenty-percent compensation
under LHWCA section 14(f) arises automatically if the employer fails to make a
payment within ten days of it being due.
Providence Washington Ins. Co. v. Director, OWCP, 765 F.2d 1381,
1385 (9th Cir. 1985); Tidelands Marine Service v. Patterson,
719 F.2d 126, 128 n. 2 (5th Cir. 1983). Section 14(f) is, therefore, self-executing. Id.
A claimant need not wait until the
responsible operator's appeal has been resolved to enforce the operator's
liability. Rather, a claimant may
immediately enforce the operator's liability under LHWCA section 18(a). 33 U.S.C. §918(a), incorporated by 30 U.S.C.
§932(a); 20 C.F.R. §725.605. Section
18(a) provides that if an operator fails to make a payment within thirty days
of it being due, the claimant may apply to the District Director who issued the
"compensation order" for a "supplementary order" to declare
the amount in default. The claimant has
one year from the date of the default to apply to the District Director. After investigation and notice, the District
Director (or ALJ, if a hearing is requested) may issue a supplementary order
declaring the amount in default. The
claimant may then file a certified copy of the District Director's (or ALJ's)
default declaration with the appropriate federal district court. If the court determines that the default
declaration is "in accordance with law," it must enter judgment for
the amount declared in default. 33
U.S.C. §918(a).
Mrs. Nowlin, however, did not choose
to proceed under section 18(a) while EACC's successive appeals to the Benefits
Review Board were pending. Rather, she
chose to wait until the appeals were concluded. Her award became final on August 21, 2000, when EACC failed to
petition for review of the Board's June 22, 2000 affirmance of ALJ Kichuk's May
14, 1999 benefit award. Mrs. Nowlin
then filed this action under section 21(d) to enforce a final award.
Unlike section 18(a), section 21(d)
does not mention a "supplementary order" and requires the
"compensation order" to have "become final" before a
claimant (or a District Director) may "apply for the enforcement of the
order to the Federal district court for the judicial district in which the
injury occurred . . . ." 33 U.S.C.
§921(d), incorporated into the BLBA by 30 U.S.C. §932(a); 20 C.F.R.
§725.604. If the compensation order was
"made and served in accordance with law," the court must enforce
it. 33 U.S.C. §921(d); e.g.,
Marshall v. Barnes & Tucker Co., 432 F. Supp. 935, 938 (W.D. Pa. 1977).
Sections
18(a) and 21(d) serve distinct roles.
Section 18(a) permits enforcement of effective but not-yet-final awards,
while section 21(d) permits the enforcement of final awards. Kinder v. Coleman & Yates Coal Co.,
974 F. Supp. 868, 871 (W.D. Va. 1997).
Section 18(a) thus affords injured employees a mechanism for
immediate enforcement of effective compensation awards even before they become
final, to alleviate the severe financial hardships that could befall injured
employees when employers fail to comply with a compensation award during the
pendency of appeals. Williams v.
Jones, 11 F.3d 247, 254 (1st Cir. 1993); Tidelands, 719
F.2d at 129. A successful plaintiff
under section 18(a) obtains a money judgment against the employer from the
district court. Section 21(d), by
contrast, generally affords injured employees a mechanism by which to obtain an
injunction ordering an employer to comply with a final compensation award. A successful plaintiff under section 21(d)
obtains injunctive relief, which subjects a non-complying employer to the risk
of contempt proceedings. Williams,
11 F.3d at 255.
A claimant's failure to seek
enforcement of a non-final award under section 18(a) does not preclude him from
seeking enforcement of the award under section 21(d) once it becomes
final. Rather, if the employee succeeds
in defending his award to finality, the employee may then obtain an injunction
under section 21(d) compelling the employer to pay any outstanding
benefits. Kinder, 974 F. Supp.
at 879 (" . . . an employee who effectively waives his section 918(a)
rights would still have two years after an award becomes final to seek
enforcement pursuant to section 921(d)."). A claimant may thus seek enforcement of an
employer's section 14(f) liability under either section 18(a) or 21(d). Reid v. Universal Maritime Service Corp.,
41 F.3d 200, 202 (4th Cir. 1994).
B. Section 21(d)'s only procedural prerequisite is a final
compensation order made and served in accordance with law.
EACC
has confused the procedures required in section 18(a) and 21(d) actions. Section 18(a) expressly requires that a
claimant apply to the District Director for a supplementary order of default
before proceeding to district court.
Section 21(d) does not. Courts
have recognized this distinction. In Cassell
v. Taylor, 243 F.2d 259, 260 (D.C. Cir. 1957), the court noted that
"[s]ection 918 [i.e., section 18(a)] instructs the court to
enter judgment upon the filing of a supplementary order" whereas section
21(d), "on the other hand, enables the court . . . to 'enforce obedience
to the (original) order'" (emphasis added). Similarly, in Williams v. Jones, 11
F.3d 247, 252-54 (1st Cir. 1993), the Court compared section 18's
"bifurcated enforcement mechanism" with section 21(d)'s direct
enforcement mechanism under which the district court is the "first and
only forum for a full hearing of . . . factual disputes . . .
." (Emphasis in original.) The First Circuit also characterized the
District Director's default order in that case as "supererogatory,"
stating that "[u]nlike §918(a), §921(d) expressly reserves such matters
for resolution by the district court."
11 F.3d at 253 n. 7.
EACC provides little explanation of its
assertion that a supplemental default order is a prerequisite to a section
21(d) action. It suggests that section
21(d)'s requiring a final compensation order means that there must be an order
specifically addressing section 14(f) liability. Motion to Dismiss at 13.
This is incorrect. Section 14(f)
liability arises automatically – without any requirement for a supplementary
order – upon the employer's default. Providence
Washington Ins. Co., 765 F.2d at 1385; Tidelands Marine Service, 719
F.2d at 128. Section 14(f) "does
not, itself, provide for the issuance of any order," and is
"self-executing." Id. Indeed, section 14(f) is substantive and
contains no procedural requirements; the procedural requirements for
enforcement of the provision depend upon whether enforcement is sought under
section 18(a) or 21(d). Reid, 41
F.3d at 202. Only when attempting to
enforce an employer's section 14(f) liability under section 18(a) must a
claimant apply to a District Director for a supplemental default order. When attempting to enforce an employer's
section 14(f) liability under section 21(d), a claimant may proceed directly to
federal district court provided the original compensation order has become
final.
In
its reply to Mrs. Nowlin's response to its motion to dismiss, EACC adds a
second reason to support its assertion that a supplemental default order is
necessary to this section 21(d) enforcement action. Specifically, EACC argues that a supplementary default order is
necessary so that there will be a determination of the amount of "unpaid
benefits" for which the additional twenty-percent compensation is
due. Reply to Motion to Dismiss at
4. EACC does not cite any language in
section 21(d) to support this contention; instead, it cites Quintana v.
Crescent Wharf and Warehouse Co., 18 BRBS 254 (Ben. Rev. Bd. 1986).
EACC's
reasoning is faulty. Supplemental
compensation orders are not necessary to establish the amount of "unpaid
benefits" under section 14(f).
There is no reason why this Court could not determine the amount of
"unpaid benefits" based upon evidence adduced by the parties if the
amount is in dispute. See Providence Washington Ins. Co.,
765 F.2d at 1386 (in a case involving twenty-percent additional compensation
under section 14(f), "computational problems . . . could be easily
resolved at the enforcement stage in federal district court . . . ."). Nor does the Board's Quintana
decision support EACC's position. In Quintana,
the employer failed to pay certain medical benefits while its motion for
reconsideration was pending with the ALJ.
The claimant asked the ALJ to hold the employer liable for additional
compensation under LHWCA section 14(f), but the ALJ refused. The Board affirmed, holding that the issue
was not properly before the ALJ.
Rather, the Board correctly held, "[i]f claimant desires to request
additional compensation as set out in Section 14(f), he must first apply to the
[district director]." 18 BRBS at
258. Because the claimant's award had
not yet become final, his only option for enforcing the employer's section
14(f) liability was under section 18(a), which required him to apply to the
District Director for a supplemental default order.
Finally, EACC argues that the Fourth
Circuit's decision in Reid, 41 F.3d 200, undermines Mrs. Nowlin's position because the claimant in that
case applied to the district director for a supplemental default order. A claimant has the option, however, of
seeking enforcement of an employer's liability for additional compensation
under section 14(f) by proceeding under either section 18 or section 21. In Reid, the claimant elected
to proceed under section 18 and, therefore, applied to the District Director
for a supplemental default order in compliance with the requirements of that
section. Nothing in Reid hints
that a claimant proceeding under section 21(d) has to apply to the District
Director for a default order. To the
contrary, the district court in Donovan v. McKee, 669 F. Supp. 138,
140-41 (S.D. WV 1987), aff'd., 845 F.2d 70 (4th Cir. 1988),
ordered the defendant to pay the additional twenty-percent compensation under
section 14(f) in a section 21(d) proceeding, despite the absence of any
supplementary default order by the District Director.
Having
filed this action under section 21(d), Mrs. Nowlin was not required to first
apply to the District Director for a supplemental default order. ALJ Kichuk's May 14, 1999 decision and order
awarding benefits, which became final following the Benefits Review Board's
June 22, 2000 affirmance, entitled her to apply directly to this Court for the
enforcement of that order under section 21(d).
We urge the Court to reject EACC's attempt to engraft section 18(a)'s
requirement for a supplementary default order onto sections 14(f) and 21(d),
neither of which contain such a requirement.
CONCLUSION
The
Director, OWCP, therefore respectfully urges the Court to reject EACC's contention
that a section 21(d) action may not proceed absent a District Director's
supplementary default order, and to deny EACC's motion to dismiss.
Respectfully submitted,
THOMAS
E. JOHNSTON
United
States Attorney
Northern
District of West Virginia
____________________________
BETSY STEINFELD JIVIDEN
Assistant
United States Attorney
1100
Main Street, Suite 200
P.O. Box 591
Wheeling,
WV 26003
(304)
234-7764
Of Counsel: HOWARD M. RADZELY
Acting Solicitor of Labor
DONALD S. SHIRE
Associate Solicitor
_____________________
EDWARD
WALDMAN
Counsel for Enforcement
U.S. Department of Labor
Office of the Solicitor
Suite N-2117
200 Constitution Ave., N.W.
Washington, D.C. 20210
(202) 693-5671
Attorneys for the Director, Office
of Workers’ Compensation Programs,
United States Department of Labor
CERTIFICATE
OF SERVICE
I hereby certify that on February
___, 2003, a copy of the foregoing Brief of Amicus Curiae was mailed,
postage prepaid, to the following:
Robert F. Cohen, Jr., Esq.
Cohen,
Abate & Cohen, L.C.
P.O.
Box 486
Morgantown,
WV 26507-0846
William
S. Mattingly, Esq.
Jackson
Kelly PLLC
P.O.
Box 619
Morgantown,
WV 26507
_________________________
BETSY
STEINFELD JIVIDEN
Assistant
U.S. Attorney