Mining Energy, Inc. v. Director, Office of Workers' Compensation Programs

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

MINING ENERGY, INCORPORATED; OLD 
REPUBLIC INSURANCE COMPANY,
Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS’  No. 02-2259
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; ANNA
RUTH POWERS, Widow of Woodrow
Wilson Powers,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(00-1134-BLA)

Argued: October 26, 2004

Decided: December 16, 2004

Before LUTTIG, KING, and DUNCAN, Circuit Judges.

Dismissed by published opinion. Judge King wrote the opinion, in
which Judge Luttig and Judge Duncan joined.

COUNSEL

ARGUED: Mark Elliott Solomons, GREENBERG TRAURIG,
L.L.P., Washington, D.C., for Petitioners. Gary K. Stearman, Office
2 MINING ENERGY v. DIRECTOR, OWCP
of the Solicitor, Black Lung Division, UNITED STATES DEPART-
MENT OF LABOR, Washington, D.C., for Respondents. ON
BRIEF: Laura Metcoff Klaus, GREENBERG TRAURIG, L.L.P.,
Washington, D.C., for Petitioners. Howard M. Radzely, Acting Solic-
itor of Labor, Allen H. Feldman, Associate Solicitor for Special
Appellate and Supreme Court Litigation, Nathaniel I. Spiller, Deputy
Associate Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondent Director.

OPINION

KING, Circuit Judge:

Mining Energy, Inc., and its insurer, Old Republic Insurance Com-
pany, (collectively "Mining Energy"), petition this Court for review
of the May 2002 decision of the Benefits Review Board of the
Department of Labor (the "Board"), which granted Mining Energy’s
motion for reconsideration but denied its request for relief. See Pow-
ers v. Mining Energy, et al., No. 00-1134 BLA (BRB May 30, 2002).
As explained below, the petition for review was not filed in a timely
manner and must be dismissed for lack of jurisdiction.

I.

This dispute has a long and contentious history. It began in 1988,
when an administrative law judge ("ALJ") first awarded black lung
benefits to Woodrow Powers, a retired twenty-eight-year veteran of
the coal mines of southwestern Virginia. Mining Energy, his former
employer, appealed the ALJ’s decision to the Board, which, on Janu-
ary 28, 1991, upheld the award of benefits.

Beginning in October 1991, Mining Energy declined to pay certain
of Powers’s medical bills, contending that his ailments were caused
by cigarette smoking rather than by pneumoconiosis resulting from
his coal mine employment. On April 30, 1994, before the medical
bills dispute with Mining Energy could be resolved, Mr. Powers died.
His widow, Ruth Ann Powers, filed a separate claim for survivor’s
benefits on May 17, 1994.
 MINING ENERGY v. DIRECTOR, OWCP 3
The ALJ thereafter conducted a joint hearing on Mr. Powers’s
claim for medical benefits and on Mrs. Powers’s claim for survivor’s
benefits. In a ruling of May 21, 1997, the ALJ denied both claims on
the basis that Mr. Powers’s illness and death were not due to coal
miner’s pneumoconiosis. On April 15, 1999, the Board vacated the
ALJ’s decision. It remanded both claims to the ALJ with directions
that he consider the prohibition on relitigation of entitlement to medi-
cal benefits explained in Doris Coal Co. v. Director, OWCP, 938 F.2d
492, 496-97 (4th Cir. 1991), and that he also consider the potential
collateral estoppel effect on Mrs. Powers’s survivor claim of the
ALJ’s earlier finding of pneumoconiosis.

Mining Energy moved for reconsideration of the Board’s remand
decision, but the Board, in a ruling of November 30, 1999, adhered
to its decision of April 15, 1999. On remand, an ALJ, on July 31,
2000, awarded benefits to the Powers on both claims. The Board
affirmed those awards on September 28, 2001, and Mining Energy
again moved for reconsideration. On May 30, 2002, the Board
granted the motion for reconsideration, and denied Mining Energy’s
request for relief (the "May 30 Ruling").

On October 28, 2002, 151 days after the May 30 Ruling, Mining
Energy filed its petition for review in this Court, seeking our review
of that ruling. Because the applicable statute, 33 U.S.C. § 921(c),
mandates that a petition for review be filed within sixty days of issu-
ance of a decision by the Board, Mining Energy wrote to the Court,
on October 24, 2002, explaining that it had no knowledge of the May
30 Ruling until September 23, 2002, when it received notification
from the Department of Labor ("DOL") regarding payment of bene-
fits. Mining Energy contends (and the Director agrees) that on May
30, 2002, Mining Energy was erroneously served with an opinion in
an unrelated case, rather than with the May 30 Ruling.

The Director initially moved in this Court to dismiss Mining Ener-
gy’s petition for review for lack of jurisdiction, asserting that the peti-
tion was not filed within sixty days of issuance of the Board’s
decision, as required by § 921(c). Mining Energy opposed the motion
to dismiss, contending that its petition for review was filed in a timely
manner, within sixty days of September 23, 2002, the date on which
Mining Energy received actual notice of the May 30 Ruling. Upon
4 MINING ENERGY v. DIRECTOR, OWCP
receiving evidence that Mining Energy was indeed served with an
unrelated Board decision, the Director, by letter dated October 22,
2004 (received and filed by our Clerk on October 26, 2004) withdrew
his motion to dismiss. At the oral argument conducted on October 26,
2004, the Director confirmed the withdrawal of his motion.

II.

The appellate process at issue in this case was established by Con-
gress in the Longshore and Harbor Workers’ Compensation Act
("LHWCA"), codified at 33 U.S.C. §§ 901-950. The Secretary of
Labor administers the Act, which includes section 921(c) of Title 33.
That section provides that:

Any person adversely affected or aggrieved by a final order
of the Board may obtain a review of that order in the United
States court of appeals for the circuit in which the injury
occurred, by filing in such court within sixty days following
the issuance of such Board order a written petition praying
that the order be modified or set aside.

33 U.S.C. § 921(c) (emphasis added). As we held in Butcher v. Big
Mountain Coal, Inc., 802 F.2d 1506, 1507-08 (4th Cir. 1986), the
sixty-day filing period established by Congress in § 921(c) is jurisdic-
tional. Several other circuits have agreed with our view. See Stevedor-
ing Servs. of Am. v. Dir., OWCP, 29 F.3d 513, 516 (9th Cir. 1994);
Brown v. Dir., OWCP, 864 F.2d 120, 122 (11th Cir. 1989); Bolling
v. Dir., OWCP, 823 F.2d 165, 166 (6th Cir. 1987); Dawe v. Old Ben
Coal Co., 754 F.2d 225, 227 (7th Cir. 1985); Clay v. Dir., OWCP,
748 F.2d 501, 502 (8th Cir. 1984); Pittston Stevedoring Corp. v. Del-
laventura, 544 F.2d 35, 43-44 (2d Cir. 1976), aff’d on other ground
sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249
(1977).

In this proceeding, Mining Energy maintains that a Board decision
has not been "issued," within the meaning of § 921(c), until and
unless it has been both filed with the Board and properly served on
the parties via certified mail, or until the party has received actual
notice. The Director initially moved to dismiss the petition, maintain-
ing that the certificate of service was legally sufficient and that "no-
 MINING ENERGY v. DIRECTOR, OWCP 5
where in the statute or regulation is actual notice required."
Respondent’s letter of 10/18/04, at 1. However, in his subsequent sub-
mission to the court, and at oral argument, the Director joined Mining
Energy in urging that, "where the Board did not send the decision to
the parties . . . it has not ‘issued’ the decision as that term has been
interpreted in the regulation" and, in such an event, "the statutory time
period does not begin to run until the petitioner receives actual notice
of the decision." Respondent’s letter of 10/22/04, at 2. The Director
thus now contends that "issuance," pursuant to § 921(c), requires fil-
ing and looking behind a certificate of service to confirm that the
decision was actually mailed.1

For support of this proposition, both parties point principally to two
DOL regulations, 20 C.F.R. §§ 802.403 and 802.410. The first of the
these regulations, § 802.403, is entitled "Issuance of decisions; ser-
vice," and it outlines the procedures that the Board is to follow in ren-
dering a decision. In its subsection (b), § 802.403 directs:

The original of the decision shall be filed with the Clerk of
the Board. A copy of the Board’s decision shall be sent by
certified mail or otherwise presented to all parties to the
appeal and the Director. The record on appeal, together with
a transcript of any oral proceedings, any briefs or other
papers filed with the Board, and a copy of the decision shall
be returned to the appropriate deputy commissioner for fil-
ing.
1
At oral argument, the Director suggested that his "interpretation"
should be entitled to "Skidmore" deference. See U.S. Dep’t of Labor v.
North Carolina Growers Ass’n, 377 F.3d 345, 353-54 (4th Cir. 2004)
(deferring to the agency’s interpretation "only to the extent that the inter-
pretation has the power to persuade," citing Skidmore v. Swift & Co., 323
U.S. 134 (1944)). It is unclear whether the Director meant this statement
to refer to his interpretation of the regulation or the regulation’s interpre-
tation of the statute. In any event, the Director’s interpretation of the reg-
ulation is entitled to "considerably less deference" because he has taken
essentially two contradictory positions. I.N.S. v. Cardoza-Fonseca, 480
U.S. 421, 446 n. 30 (1987) (quoting Watt v. Alaska, 451 U.S. 259, 273
(1981)). Further, because his most recent interpretation is "plainly erro-
neous" and "inconsistent with the regulation," it is not controlling. Auer
v. Robbins, 519 U.S. 452, 461 (1997).
6 MINING ENERGY v. DIRECTOR, OWCP
The second regulation, § 802.410, is entitled "Judicial review of
Board decisions." It provides in § 802.410(a) that:

[w]ithin 60 days after a decision by the Board has been filed
pursuant to § 802.403(b), any party adversely affected or
aggrieved by such decision may file a petition for review
with the appropriate U.S. Court of Appeals pursuant to sec-
tion 21(c) of the LHWCA.

Both of these regulations were adopted by the DOL without conduct-
ing the notice-and-comment procedure contemplated by the Adminis-
trative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. (2000), in
certain circumstances.2 See 52 Fed. Reg. 27288, 27290 (July 20,
1987).

Here, the parties maintain that §§ 802.403 and 802.410 clarify what
they contend is the statute’s ambiguous use of the term "issuance,"
and that these regulations support their position that the May 30 Rul-
ing was not "issued" on May 30 because it was not properly served.3
Despite what Mining Energy and the Director contend, however, nei-
ther § 802.403 nor § 802.410 defines the "issuance" of a Board deci-
sion as being when the decision has been both filed with the Clerk of
the Board and served on the parties. Section 802.403(b) does oblige
2
Section 553(b)(A) of Title 5, United States Code, exempts from the
APA’s notice-and-comment requirements, inter alia, agency "interpreta-
tive rules, general statements of policy, or rules of agency organization,
procedure, or practice." The DOL relied on this exception in the pream-
ble to the regulations. See 52 Fed. Reg. at 27290.
3
We have recently explained that a regulation that clarifies a statute’s
ambiguous use of a term, or explains how a provision operates, should
be characterized as "interpretive." Walton v. Greenbrier Ford, Inc., 370
F.3d 446, 452 (4th Cir. 2004) (discussing difference between deference
due to legislative regulation and that due to interpretive regulation).
While interpretive regulations are not entitled to the full "arbitrary and
capricious" review set forth in Chevron U.S.A., Inc. v. Nat’l Res. Def.
Council, Inc., 467 U.S. 837, 843-44 (1984), the courts (if Congress has
not spoken on the precise question at issue) are to accord them "consider-
able weight" and uphold them if they implement the congressional man-
date in "a reasonable manner." Walton, 370 F.3d at 454 (internal citations
omitted).
 MINING ENERGY v. DIRECTOR, OWCP 7
the Clerk of the Board to serve Board decisions by certified mail.
However, the mere fact that the DOL directs the Board’s Clerk to
serve Board decisions does not mean that the DOL has interpreted the
term "issuance" in § 921(c) to mean that an opinion has not been
issued until it has been both filed and served.

To the contrary, § 802.410(a) provides otherwise: it specifies that
an aggrieved party may file a petition for review with the court of
appeals within "60 days after" the decision by the Board has been
"filed pursuant to 20 C.F.R. § 802.403(b)." § 802.410(a) (emphasis
added). Because § 802.403(b) addresses how the Clerk of the Board
is to handle both "filing" and "service," § 802.410(a)’s selection of
one of those terms (filing), and not the other (service), makes it plain
that the sixty-day filing period begins to run with the filing of a Board
opinion with the Clerk of the Board.

In any event, this result is the commonsense and plain interpreta-
tion of the term "issuance," as it is used in § 921(c). Black’s Law Dic-
tionary defines "issue" as "to put forth officially," or "to send out or
distribute officially." Black’s Law Dictionary 850 (8th ed. 2004).
Similarly, Webster’s Third New International Dictionary defines "is-
suance" as the noun form of "issue" which, in the context of a written
order, means "the act of . . . proclaiming or promulgating." Webster’s
Third New Int’l Dictionary 1201 (1976). As with decisions issued by
other administrative and judicial bodies, the May 30 Ruling was "au-
thoritative" and "promulgated" upon its filing, not upon Mining Ener-
gy’s receipt. Further, it is significant that jurisdictional time
limitations have traditionally been construed by the courts to com-
mence to run at the entry of judgment. See Fed. R. App. P.
4(a)(1)(making entry of judgment date from which appeal period
runs). Finally, the fact that Congress inserted a service requirement
into nearby § 919(e), which governs the procedure for adjudicating
initial claims in front of the deputy commissioner, see Dominion Coal
Corp. v. Honaker, 33 F.3d 401, 404-05 (4th Cir. 1994), but did not
insert any such requirement into § 921(c), governing petitions for
review by the courts of appeals, is also persuasive.

Significantly, we have previously interpreted the "issuance" of a
decision by the Board not to include a service requirement. In our
Butcher decision, Judge Widener rejected the petitioner’s contention
8 MINING ENERGY v. DIRECTOR, OWCP
that, because there was no evidence that the Board’s decision had
been properly served as required by § 802.403(b), an otherwise
untimely petition was rendered timely. 802 F.2d at 1507-08. And
nearly every court of appeals to have faced the question of when a
Board opinion should be deemed as having been "issued" has agreed
with Butcher and with the conclusion we reach today. See Stevedor-
ing Servs. of Am., 29 F.3d at 516 (holding that issuance under
§ 921(c) means filing with Clerk of Board); Clay, 748 F.2d at 502-03
(rejecting petitioner’s contention that Board’s decision was never "is-
sued" within meaning of § 921(c) because Board did not serve deci-
sion on "all parties" as required by 403(b)); Pittson Stevedoring, 544
F.2d at 43-44 (interpreting § 921(c) to make "the time for seeking
review start to run with the entry of the agency’s order, even though
the agency is under a duty to give notice"). But see Peabody Coal Co.
v. Vigna, 22 F.3d 1388, 1392 n.10 (7th Cir. 1994) (finding petition for
review timely when received by court within sixty days of actual
notice).

In this proceeding, Mining Energy urges us to carve out an excep-
tion to our decision in Butcher, and to the consistent rulings of our
sister circuits, by maintaining that, unlike the parties in those proceed-
ings, it did not receive actual notice of the Board’s decision. In the
context of the statute and regulations at issue here, however, this
effort is unavailing. The DOL, in § 802.410(a), has properly contrued
§ 921(c)’s sixty-day filing period as commencing to run when a
Board decision is filed with the Clerk of the Board.4 And, "there is no
reason not to read 33 U.S.C. § 921(c) as meaning what it says."
Butcher, 802 F.2d at 1508 (quoting Pittston Stevedoring, 544 F.2d at
44).

Nor is there any constitutional reason why § 921(c), and 20 C.F.R.
§ 802.410(a), cannot be enforced as they are written. While Mining
Energy contends that permitting the sixty-day window for judicial
review to expire when there has been a lack of actual notice of the
Board’s decision contravenes constitutional due process requirements,
that contention is without merit and must be rejected. It is well-
4
Because Mining Energy has disclaimed any contention of equitable
tolling due to good cause or excusable neglect, we need not reach or
address any such issue.
 MINING ENERGY v. DIRECTOR, OWCP 9
established that the due process clause, alone, guarantees no right to
appellate review. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 110 (1996)
(concluding that due process clause alone did not require Mississippi
to provide indigent mother appellate review from termination of
parental rights); Ohio ex rel. Bryant v. Akron Metro. Park Dist., 281
U.S. 74, 80 (1930) (holding that "the right of appeal is not essential
to due process, provided that due process has already been accorded
in the tribunal of first instance"). Nor is "actual notice" ever the con-
trolling standard in such disputes, even in the context of service of pro-
cess.5 See Mullane v. Cent. Hanover Trust Co., 339 U.S. 306, 318
(1950) (evaluating whether notice was "reasonably calculated to reach
the interested parties").

III.

Pursuant to the foregoing, we lack jurisdiction in this proceeding
and the petition for review must be dismissed.

PETITION FOR REVIEW DISMISSED

5
Our conclusion on this point does not negate the seriousness of the
Board’s failure to properly conduct its affairs, nor our disapproval of it.
In any event, however, counsel for Mining Energy appears to have
received timely inquiry notice of the May 30 Ruling. Mining Energy
acknowledges that its counsel was served with a copy of a Board deci-
sion, also dated May 30, 2002, though it contends, and the Director
admits, that the opinion mailed to Mining Energy was for an unrelated
Board proceeding in which neither Mining Energy nor its counsel were
involved. This apparent error placed Mining Energy on notice that a
decision in one of its cases had likely been rendered by the Board, and
Mining Energy should have conducted an appropriate follow-up inquiry.