Principles of Finality
I. Appellate decisions
A. Holding
vacated
In Dale v. Wilder Coal Co., 8 B.L.R. 1-119
(1985), the Board held that when it "vacates an administrative law judge's
decision, be it an award or denial of benefits, it annuls or sets aside that
decision rendering it of no force or effect." The Board further stated
that the parties are returned "to the status quo ante the
administrative law judge's decision." Said differently, "the parties
resume the position together with all rights, benefits and/or obligations they
had prior to the issuance of the administrative law judge's decision."
B. Effect of
remand
The Fourth Circuit, in Eggers v. Clinchfield
Coal Co., 11 F.3d 35 (4th Cir. 1993), holds that a remanded
claim is not "final and appealable." Specifically, the court
declined jurisdiction over consolidated widow's and miner's claims where the
Benefits Review Board affirmed the denial of widow's benefits, but remanded the
miner's claim due to a change in the law.
On the other hand, in Muscar v. Director, OWCP,
18 B.L.R. 1-7 (1993), the Board held that an administrative law judge is
without jurisdiction to transfer a case back to the Board, as the Board "is
only empowered to accept appeals from any party who has been adversely affected
by a decision of an administrative law judge or district director. The Board
reasoned that an administrative law judge cannot "return the jurisdiction
of any case to the Board." Under the facts of Muscar, the judge
issued an Order on Remand transferring jurisdiction of the case back to the
Board stating that, subsequent to the Board's earlier decision of remand, the
law changed significantly such that the remand instructions were erroneous.
C. Law of the
case
1.
Generally
The "law of the case" principle is
discretionary and is based on the notion that once an issue is litigated and
decided, it should not be re-litigated. United States v. U.S. Smelting,
Refining & Mining Co., 339 U.S. 186 (1950), reh'g denied, 339
U.S. 972 (1950). Thus, in Brinkley v. Peabody Coal Co., 14 B.L.R. 1-147
(1990), the Board held that rebuttal under § 727.203(b) was precluded where it
previously affirmed the judge's finding that the employer failed to demonstrate
such rebuttal in an earlier decision in the claim and no exception to the
doctrine was established. See also Dean v. Marine Terminals Corp., 15
B.R.B.S. 394 (1983). Exceptions to application of the "law of the
case" doctrine include a change in an underlying fact situation,
intervening controlling authority demonstrating that the initial decision was
erroneous, or demonstrating that the Board's initial holding resulted in
manifest injustice. C.C. v. Westmoreland Coal Co., BRB Nos. 07-0359 BLA
and 07-0359 BLA-A (May 29, 2008).
2.
Clearly erroneous,
"law of the case" inapplicable
Departure from the "law of the case"
doctrine is appropriate, however, where the prior holding is "clearly
erroneous" and its continued application would constitute a "manifest
injustice." Cale v. Johnson, 861 F.2d 943, 947 (6th
Cir. 1988) (citing to Arizona v. California, 460 U.S. 605 (1983)).
3.
Petitions for modification,
"law
of the case" inapplicable
By
unpublished decision in Mitchell v. Daniels Co., BRB Nos. 01-0364 BLA
and 03-0134 BLA (Feb. 12, 2004) (unpub.), aff'd, 479 F.3d 321 (4th
Cir. 2007), the Board held that the "law of the case" doctrine does
not apply to a modification proceeding; rather, all judicially determined
facts, including length of coal mine employment and designation of the proper
responsible operator, must be reviewed de novo on modification.
D. Changes in the
law
The law in effect at the time the decision is
rendered is controlling. Berka v. North American Coal Corp., 8 B.L.R.
1-183 (1985); Rapavi v. Youghiogheny and Ohio Coal Corp., 7 B.L.R. 1-435
(1984).
E. Effect
of multiple motions for reconsideration
In Midland Coal Co. v. Director, OWCP, 149
F.3d 558 (7th Cir. 1998), the court held that it did not have
jurisdiction to decide an appeal of a black lung claim where Employer filed
three motions to reconsider the award of benefits with the Benefits Review
Board. In so holding, the court stated the following:
[A] motion for reconsideration filed within 30 days
of a decision tolls the time to appeal to this court, and sec. 10(c) of the APA
does not apply to the first motion for reconsideration. When the first motion
is denied, the original, 'non-interlocutory order' stands, and the loser has 60
days to appeal to the United States Court of Appeals.
. . .
The final non-interlocutory decision on the merits
is appealable to this court. Once 60 days expires after the original decision,
or after the first denial of reconsideration, this court has no jurisdiction
over an appeal.
The
court cited to Peabody Coal Co. v. Abner, 118 F.3d 1106, 1108 (6th
Cir. 1997) where the Sixth Circuit arrived at the same conclusion.
In Knight v. Director, OWCP, 14 B.L.R. 1-166
(1991), the Board held that a second motion for reconsideration, which was
filed within 30 days of the decision on reconsideration, but not within 30 days
of the original decision and order, was untimely. The Board concluded that,
even if the second motion had been timely filed, it improperly raised issues
that were not raised in the first motion.
F.
Interlocutory appeals,
criteria for accepting
In Cochran v. Westmoreland Coal Co., 21
B.L.R. 1-89 (1998), the administrative law judge issued an order dismissing
certain named operators and remanded "the case for a complete medical
examination as he found the record void of a complete assessment based on a
correct employment history." The Director requested reconsideration to
state that, on remand, he should be able to further investigate the responsible
operator issue and Westmoreland Coal should not be dismissed prior to that investigation.
The administrative law judge denied the reconsideration request and the
Director appealed his interlocutory orders.
The Board initially noted that "[a]n order
that leaves the question of entitlement on the merits unresolved does not constitute
a final appealable order." It then set forth the factors for the "collateral
order exception" as follows: (1) the order must conclusively determine the
disputed issue; (2) the order must resolve an important issue separate from the
merits of the action; and (3) the order must be effectively unreviewable on
appeal from final judgment. Upon consideration of these factors, the Board
concluded that the exception applied because the administrative law judge's
orders "conclusively determined that Westmoreland was not a potentially
responsible operator in this case and have undermined any further investigation
concerning the potential liability of ICI." The Board noted that, if
benefits are awarded, then the Director would be precluded from "proceeding
against any putative responsible operator which had not been a participant in
every stage of the prior adjudication."
Under the amended regulations, the administrative
law judge is prohibited from dismissing the designated responsible operator.
If the administrative law judge concludes that the operator was not properly
named, and the miner is found to be entitled to benefits, then the Trust Fund
will commence the payment of benefits. For further discussion of this issue, see
Chapters 4 and 7.
II. Clerical corrections
In Coleman v. Ramey Coal Co., 18 B.L.R. 1-9
(1993), the Board applied Rule 60(a) of the Federal Rules of Civil Procedure to
hold that a clerical mistake may be corrected at any time before an appeal is
docketed or, if an appeal is pending, such a correction may be made with leave
of the appellate court. If no appeal is filed, there is no time limit
regarding the correcting of a clerical mistake. The Board was careful to note,
however, a clerical error is "'one which is a mistake or omission
mechanical in nature which does not involve a legal decision or judgment by an
attorney and which is apparent on the record.'"
III. Res judicata
A. Generally
Application of the doctrines of res judicata
and collateral estoppel in black lung claims is problematic. Because of the
progressively worsening nature of pneumoconiosis, the Act and its implementing
regulations permit petitions for modification and multiple claims.
B.
Multiple claims under 20
C.F.R. § 725.309
The multiple claim provisions at 20 C.F.R. § 725.309
(2000) and (2008) provide relief from ordinary principles of res judicata
on the basis that the miner's condition has worsened due to the progressive
nature of pneumoconiosis. Thus, it is critical that the adjudicator make the
threshold determination of whether the claimant has established an element of
entitlement previously adjudicated against him or her prior to
adjudicating the entire claim on the merits.
C.
Prior claim untimely,
res judicata bars subsequent claim
In Stolitza v. Barnes and Tucker Co., 23 B.L.R.
1-93 (2005), the Board held that the district director's denial of a prior
claim on grounds that it was untimely filed under 20 C.F.R. § 725.308 "is res
judicata and its effect is to bar the filing of the instant subsequent
claim." Under the facts of the case, Claimant filed a subsequent claim
asserting that the district director incorrectly concluded that his prior claim
was untimely. Citing to Hughes v. Clinchfield Coal Co, 21 B.L.R. 1-134
(1999) (en banc), the administrative law judge held that collateral estoppel
did not apply to preclude relitigation of the timeliness of the miner's prior
claim since the miner "did not have a full and fair opportunity to
litigate the issue in the previous forum." The Board disagreed and concluded
that "claimant did, in fact, have a full and fair opportunity to litigate
the timeliness issue before the district director but did not take advantage of
the opportunity." As a result, the Board concluded that the subsequent
claim was barred and it vacated the administrative law judge's award of
benefits.
IV. Collateral estoppel
A. Factors to consider
The following requirements must be satisfied prior
to application of collateral estoppel or issue preclusion. The issue to be
precluded must be (1) the same as that involved in the prior action, (2)
actually litigated in the prior action, and (3) essential to the final judgment
in the prior action. Additionally, (1) the party against whom estoppel is
invoked must have been fully represented in the prior litigation, and (2) the
parties in both actions must be the same or in privity.
B. Losing on an issue, prevailing overall
In a case involving a multiple claim under 20
C.F.R. § 725.309 (2000), the prevailing party in the first claim (which will be
either the employer or Director) is entitled to relief from collateral estoppel
in a second claim with regard to any adversely decided issues. This is because
the employer or Director, who prevailed in the first claim, could not appeal any
adversely decided issue since the overall decision was in the party's favor.
For example, in
Sellards v. Director, OWCP, 17 B.L.R. 1-77 (1993), the administrative
law judge adjudicating a miner's second claim adopted the findings of fact made
by another administrative law judge in the first claim, to wit, that the
claimant worked as a "miner" and established ten years of coal mine
employment in the first claim.
The Board agreed with the Director that the adoption of these findings this
constituted error and reasoned:
The doctrine of res judicata generally has
no application in the context of a duplicate claim, as the purpose Section
725.309(d) is to provide relief from the principles of res judicata to a
miner whose physical condition worsens over time. (citation omitted). In
addition, as the Director has noted, one of the criteria that must be met
before the doctrine can be applied is that the party against whom estoppel is
sought must have had a full and fair opportunity to litigate the issue in the
prior proceeding. (citation omitted). The Director was not able to fully
litigate the issue of whether the miner was a coal miner, as the Director was
not adversely affected by the prior Decision and Order denying benefits and,
therefore, did not have standing to appeal the administrative law judge's
finding that the labor performed by claimant constituted qualifying coal mine
employment. (citations omitted). Thus, we vacate the administrative law
judge's finding that claimant established at least ten years of coal mine
employment and remand the case to the administrative law judge for further
consideration of this issue.
Id. at 1-78. See
also White v. Elrod, 816 F.2d 1172
(7th Cir. 1987).
C.
Stipulation in prior claim,
effect
of in subsequent claim
The amended regulations at 20 C.F.R. § 725.309(d)(4)
(2008) address the findings made in a prior claim and provide the following:
If the claimant demonstrates a change in one of the
applicable conditions of entitlement, no findings made in connection with the
prior claim, except those based on a party's failure to contest an issue (see §
725.463), shall be binding on any party in the adjudication of the subsequent
claim. However, any stipulation made by any party in connection with the prior
claim shall be binding on that party in the adjudication of the subsequent
claim.
20
C.F.R. § 725.309(d)(4) (2008).
D.
Parts 718 and 727,
collateral estoppel inapplicable
In Alexander v. Island Creek Coal Co., 12
B.L.R. 1-44 (1988), the Board held that collateral estoppel only precludes the
re-litigation of issues arising from the same legal standards and burdens of
proof between the same parties or those parties in privity. In this vein, the
Board concluded that the entitlement standards under Part 727 are
different than those of Part 718 such that collateral estoppel was
inapplicable.
E.
Subsequent state agency
determinations,
collateral estoppel inapplicable
In Freeman United Coal Mining Co. v. Director,
OWCP, 20 F.3d 289 (7th Cir. 1994), the court held that
collateral estoppel was not available to the employer who argued that a finding
by the Illinois Industrial Commission that the miner was only partially
disabled due to pneumoconiosis constituted a complete bar to the administrative
law judge's earlier finding of total disability due to pneumoconiosis. The
court noted that "[c]ollateral estoppel, also known as issue preclusion, 'refers
to the effect of a judgment in foreclosing relitigation in a subsequent action
of an issue of law or fact that has been actually litigated and decided in the
initial action.'" The Seventh Circuit further stated that collateral
estoppel is an affirmative defense and the party asserting it has the burden of
establishing its propriety. In this case, because the determination of the
Illinois Industrial Commission was subsequent to that of the judge, the
employer could not use collateral estoppel to bar the administrative law judge's
finding of total disability.
F.
Social Security
Administration findings,
collateral estoppel generally inapplicable
In Wenanski v. Director, OWCP, 8 B.L.R.
1-487 (1986), the Board held that "[e]xcept as provided by 20 C.F.R. § 410.470,
Social Security Administration findings are not binding on the Department of
Labor adjudication officer" (citing to Tackett v. Director, OWCP, 7
B.L.R. 1-703 (1985). See also Reightnouer v. Director, OWCP, 2
B.L.R. 1-334 (1979); Beck v. Mathews, 601 F.2d 376 (9th Cir. 1978).
Thus, it was determined in Wenanski that SSA's finding of 30 years of
coal mine employment was not binding in the subsequent Department of Labor
proceeding.
G. Miner's and
survivor's claims,
existence of pneumoconiosis
For
a discussion of the effect of stipulations in the miner's claim on a survivor's
claim, see Chapter 11.
1. Parklane Hosiery factors
a.
Generally
The Board and some circuit courts have utilized
the Supreme Court's analysis in Parklane Hosiery Co. v. Shore, 439 U.S.
322 (1979) to determine whether collateral estoppel may be applied in a
survivor's claim to preclude re-litigation of an issue decided in a successful
miner's claim. The factors are as follows: (1) whether the claimant could
easily have joined in the earlier proceeding; (2) whether the employer had an
incentive in the prior action to have defended the action fully and vigorously;
(3) whether the employer has ever obtained a ruling that the miner did not
suffer from pneumoconiosis; and (4) whether procedural opportunities are
available to the employer in the survivor's claim that were unavailable in the
proceeding involving the miner's claim.
b. Application of
factors
In
Collins v. Pond Creek Mining Co.,
468 F.3d 213 (4th Cir. 2006), the Fourth Circuit analyzed the Parklane
Hosiery factors and determined that collateral estoppel could be applied in
the survivor's claim to bar re-litigation of the existence of coal workers'
pneumoconiosis. First, the court noted that the survivor could not have joined
the proceeding involving her husband's claim because "spouses of living
miners with pneumoconiosis are not entitled to seek benefits under the
Act." Second, the court found that Employer had incentive to present a
vigorous defense in the miner's claim and there was no finding subsequent to
the award of benefits in the miner's claim that he did not suffer from coal
workers' pneumoconiosis. Finally, the court concluded that no procedural
opportunities were available to Employer in the survivor's claim, which were
not also available to it in the earlier miner's claim. Consequently,
application of offensive non-mutual collateral estoppel to preclude
re-litigation of the existence of coal workers' pneumoconiosis in the
survivor's claim would not be "unfair" to Employer.
c. No opportunity
to fully litigate,
"unfair"
to apply collateral estoppel
In Cline v. Westmoreland Coal Co., 21 B.L.R.
1-69 (1997), the Board noted that "Employer correctly argues that the
administrative law judge erred in finding that employer could not challenge its
designation as the responsible operator because it did not appeal Judge Chao's Decision
and Order wherein he found that employer was the responsible
operator." The Board held, to the contrary, that "[b]ecause
claimant's appeal from Judge Chao's denial of benefits was untimely filed and
dismissed by the Board, employer was not an aggrieved party."
2. Miner's claim denied,
collateral estoppel
inapplicable
In Hughes v. Clinchfield Coal Co., 21 B.L.R. 1-134 (1999), the Board held that litigation
of presence of coal workers' pneumoconiosis is not precluded in survivor's
claim where the miner's claim was denied.
3.
Collateral estoppel may
apply if
miner's claim awarded and no autopsy evidence
In Zeigler Coal Co. v. Director, OWCP [Villain],
312 F.3d 332 (7th Cir. 2002), the court held that an employer is
collaterally estopped from re-litigating the existence of coal workers'
pneumoconiosis in a survivor's claim where the miner was awarded benefits based
on a lifetime claim and no autopsy evidence is presented in the survivor's
claim. In this vein, the court noted the following:
Not all kinds of black lung are progressive; the
milder forms of the condition do not get worse over time unless the miner
inhales more dust. Yet unless pneumoconiosis sometimes goes into remission,
there is no reason to hold a new hearing on the question whether a person who
had that condition during life also had it at death. Zeigler does not offer us
(and did not introduce before the agency) any medical evidence suggesting that black
lung can be cured.
. . .
Radiologists frequently disagree about the
interpretation of x-ray films; only for the most serious forms of the disease
are the opacities indicative of pneumoconiosis easy to distinguish from
opacities with other causes. Death offers a considerably better source of
evidence: analysis of the lung tissue removed in an autopsy. The Benefits
Review Board therefore has created an autopsy exception to the rule of issue
preclusion. Both a mine operator and a survivor are allowed to introduce
autopsy evidence in an effort to show that the determination made during the
miner's life was incorrect.
As a result, the court held that, because no
autopsy evidence was submitted in the survivor's claim, Employer was
collaterally estopped from re-litigating the issue of whether the miner
suffered from coal workers' pneumoconiosis.
4.
Williams and Compton,
applicability
of collateral estoppel
In Penn Allegheny Coal Co. v. Williams, 114 F.3d 22 (3rd Cir. 1997) and Island
Creek Coal Co. v. Compton, 211 F.3d 203 (4th Cir. 2000), the
Third and Fourth Circuits held that pneumoconiosis cannot be established by any
one of the methods set forth at 20 C.F.R. § 718.202(a) (2008); rather, all
types of evidence must be weighed together to determine whether the disease
exists. This engendered some conflict regarding whether collateral estoppel
could be applied in a survivor's claim filed after issuance of Williams and
Compton using a finding of pneumoconiosis in the successful miner's claim
filed prior to issuance of these opinions.
In
Collins v. Pond Creek Mining Co., 468 F.3d 213 (4th Cir.
2006), the court concluded that collateral estoppel was applicable under such
circumstances. The court noted that Compton "left unaltered the
legal definition of pneumoconiosis, the methods by which a claimant may
establish the existence of pneumoconiosis, and the statutory requirement that a
claimant must prove that the coal miner developed pneumoconiosis by a
preponderance of the evidence." As a result, the court concluded that the
legal standard had not been changed and collateral estoppel could be applied in
a survivor's claim to preclude re-litigation of the existence of coal workers'
pneumoconiosis.
5.
Miner's claim awarded under
20
C.F.R. Part 725 (2000), effect of
By unpublished decision in Lester v. Royalty Smokeless
Coal Co., BRB Nos. 06-0640 BLA and 06-0640 BLA-A (Mar. 27, 2007) (unpub.),
the Board held that it is proper to apply collateral estoppel regarding the
issue of pneumoconiosis where the miner's claim was awarded under regulations
in effect prior to 2000, but the survivor's claim was filed after January 19,
2001 such the evidentiary limitations at 20 C.F.R. § 725.414 (2008) were in
effect. In footnote 6 of its opinion, the Board stated:
As noted by the administrative law
judge, there were changes in the law since Judge Brenner's decision in the
living miner's claim, based on the new regulations that became effective on
January 19, 2001. (reference omitted). However, contrary to the
administrative law judge's finding, the new evidentiary limitations at 20
C.F.R. § 725.414, and the amendment to the definition of pneumoconiosis at 20
C.F.R. § 718.201, did not change the method of proving pneumoconiosis under 20
C.F.R. § 718.202(a)(1)-(4).
Slip op. at 6, fn. 6.
6.
Stipulation of
pneumoconiosis in
miner's claim binding in survivor's claim
In Richardson v. Director, OWCP, 94 F.3d 164
(4th Cir. 1996), the Director stipulated to the existence of coal
workers' pneumoconiosis in the living miner's claim.
The court held that it was error, therefore, for the administrative law judge
to find that the record did not support a finding of the disease in the
survivor's claim. The court further stated that the stipulation was binding
even though presence of the disease was not "manifest from the medical
records." The court then remanded the case to the administrative law
judge for a determination of whether coal workers' pneumoconiosis hastened the
miner's death.
