dissenting.
Harold Milliken’s widow filed for surviving spouse benefits under the Black Lung Benefits Act in 1975, more than a year following her husband’s death. She was represented by counsel and presented evidence bearing upon her right to collect benefits. She had ample opportunity to present all her claims. An ALJ decided in early 1986, based upon medical opinions and the death certificate, that the primary cause of death was heart disease. The ALJ found that the deceased miner was not shown to be totally disabled by respiratory or pulmonary impairment at the time of death, although he smoked regularly for many years in addition to working around the mines.
The ALJ, in his 1986 findings, pointed to autopsy reports and analyses which indicated either no finding of pneumoconiosis, or, at best, “simple minimal coal workers’ pneumoconiosis.” None of the doctors opined the latter as contributing to the miner’s death. The reports did indicate, however, the presence of carcinoma in the left lower lobe. Resolving considerable doubt on this issue of the presence of anthracosis or pneumoconiosis, the ALJ adopted the minority minimal indication. The ALJ concluded, however, that the employer had rebutted plaintiffs interim presumption that death was caused by this minimal indication of pneumoconiosis arising out of coal mine employment and that he was totally disabled by this condition at the time of his death. The final conclusion was that Milliken’s disability and death “did not arise out of coal mine employment.” The only competent medical evidence on the question at issue was that *958“the minimum level of pneumoconiosis ... would make no contribution to his death.” The Director’s appeal from this decision was dismissed. After the Board first dismissed the widow’s appeal as untimely on July 30, 1986, it later accepted a cross-appeal. This demonstrates the beginning of a pattern throughout this case: bending or ignoring the rules in favor of respondent. I dissent from any award of benefits, accordingly.
A divided Board, in January of 1988, reversed the ALJ based on its interpretation of Sixth Circuit law and 20 C.F.R. § 410.490 of the regulations. The case was appealed to this court, and we concluded in 866 F.2d 195 (6th Cir.1989), that the Board erred. Y&O, supported by the Director, successfully argued that the Board misinterpreted the regulations and Sixth Circuit law. Among other things, we held:
In this case, the only evidence regarding Milliken’s pneumoconiosis consists of the autopsy report conducted by Dr. Karanjawala and the death certificate with an illegible entry of pneumoconiosis as a contributing cause of death. The autopsy report also revealed evidence of heart disease and cancer. The death certificate lists heart disease as the primary cause of death. Moreover, one physician claimed Milliken did not have pneumoconiosis and another found exceedingly mild pneumoconiosis that could not have caused disability or death. A review of the record indicates that the ALJ’s finding of rebuttal is supported by substantial evidence. We decline to disturb those findings.
866 F.2d at 202-03.
One might assume that this decision, dated January 23,1989, would have settled this controversy absent a reversal or remand by the Supreme Court or m banc consideration by the Sixth Circuit. No such later court action occurred, but now — ten years later — after a multitude of questionable procedural moves and actions by the Board and the agency, the majority decides that administrative actions and decisions may effectually overrule this 1989 decision of our court.1 This is permitted by the majority in the guise of liberal construction for the benefit of the claimant.
The next action by respondent was to file a petition for rehearing, and a motion for enlargement of time, because, as conceded by the majority, “the time for filing a petition for rehearing had already elapsed.” In this petition, respondent reviewed an argument she had raised before the ALJ in 1986, but not before the Board or the Sixth Circuit, based on the “widow’s presumption.” This court denied the petition, presumably having considered and rejected the arguments advanced. I would hold that respondent, under the circumstances, raised the “widow’s presumption” issue but did not pursue it effectually, and failed in this contention before this court.2
In sum, I would hold that the 1989 decision of this court, coupled with denial of the petition for review on March 15, 1989, terminated respondent’s claims under the Black Lung Benefits Act. But, there were many more unusual and, I believe, unau*959thorized actions which took place administratively thereafter. I deem them unauthorized and improper because:
(1) The Secretary, an ALJ, and the Board cannot overrule the determination of this court.
(2) The “widow’s presumption” issue was presented, although ineptly, in the administrative proceedings prior to, and in the Sixth Circuit (by the contested petition for review).
(3) The findings of the ALJ in 1986, not disturbed by the Board, foreclosed any successful outcome of the “widow’s presumption” claim.
On February 5, 1990, more than fifteen years after Harold Milliken’s death, and the issuance of a death certificate indicating that Milliken died from heart problems primarily and another “significant condition,” carcinoma, Milliken’s new attorney mailed to a claims examiner of the Department of Labor a letter “notice.” It indicated that respondent did not appeal the Sixth Circuit decision, but that he would set forth grounds of “mistake” in that decision to be “more fully set forth in a modification request I am preparing.” He contended that “the denial of her claim (not appealed) was not final.” It should be pointed out that up to the time of the 1989 decision, respondent had been receiving black lung benefits, and by about 1980, respondent had been eligible for social security benefits.
The February 5, 1990 letter was not an appeal, but some kind of advance notice of a requested modification of the Sixth Circuit opinion based upon “mistakes.” Prior respondent’s counsel had sought to do this very thing by the rejected petition for review. Respondent, then, sought administratively to modify or overturn this court’s decision which had affirmed an ALJ determination by means of this vague letter. In a somewhat similar context, this type of letter reference to modification was rejected in I.T.O. Corp. v. Pettus, 73 F.3d 523 (4th Cir.), cert. denied, 519 U.S. 807, 117 S.Ct. 49, 136 L.Ed.2d 14 (1996). The court had this to say about this type of approach:
The Director of OWCP argues that § 922 allows threadbare letters, such as those sent by Pettus in September and December of 1989, to initiate the review process without any subsequent action on the part of the district director. We find this argument unpersuasive. Section 922’s requirement that review commence within one year is not automatically fulfilled by just any communication from the claimant. A request for modification constitutes the commencement of review only if it is sufficient to initiate the process required under § 922, a process whose next step must occur within ten days of claimant’s request for modification. While a claimant’s application for modification need not meet any particular form, there must be some basis for a reasonable person to conclude that a modification request has been made.
Id. at 527 (emphasis added). As in the Pettus case, respondent’s attorney’s letter made no reference to any “change in [claimant’s] condition” or to “additional evidence concerning claimant’s disability,” or, in this case, to the cause of death. Id. There was, furthermore, a “next step” in the process which “must occur within ten days.” Pettus submitted a more particular letter request for modification which was adequate, but like Milliken’s March 26 letter, it came too late.
We should not countenance, much less approve, such an action. Respondent’s counsel followed through on March 28, 1990, with another letter to the claims examiner enclosing the post-decision filings in the Sixth Circuit which, he said, “sets forth the principal grounds of my February 5, 1990 Request.” He proffered no newly discovered evidence, and he did not argue “previously litigated facts.” It is apparent that he was contending that a mistake of law had been made; he was not contesting factual determinations, nor presenting new evidence, but asserting a *960wrong legal determination by the Sixth Circuit.
There are several things to be said about these letters by respondent’s new counsel. The District Director rejected the February 5, 1990 communication as untimely. This should have ended the matter. Instead, as pointed out by the majority, the Director then changed course. Three courts have held that the Director “is without statutory authority under 33 U.S.C. § 922 [dealing with modification of black lung awards] to propose modifications for any mistaken determinations of fact other than his own.” Director v. Kaiser Steel Corp., 860 F.2d 377, 379 (10th Cir.1988). See also Director v. Peabody Coal Co., 837 F.2d 295 (7th Cir.1988); Director v. Drummond Coal Co., 831 F.2d 240 (11th Cir.1987). This circuit’s case of Saginaw Mining Co. v. Mazzulli, 818 F.2d 1278 (1987), was deemed inapposite in Kaiser Steel to this particular issue. Saginaiu Mining simply held that “a claimant for benefits under the BLBA must file with a deputy commissioner, rather than an ALJ, a request for modification of an ALJ decision.” 818 F.2d at 1283 (emphasis added). Saginaw Miming did not involve an ALJ decision that had been reviewed without a challenge to the facts by the Board, and which decision had been affirmed by this court.3 I would hold that the Director had no authority, under these circumstances, to entertain a request for modification based on a claimed mistake of fact.
Section 922 limits modification to “a change in conditions,” not demonstrated in this case, or “because of a mistake in a determination of fact by the deputy commissioner.” 33 U.S.C. § 922. The Director in this case stands § 922 on its head as does the majority in overturning effectively (“modifying”) through administrative gyrations the prior decision of this court. As stated, there is no authority for the Director (much less a claims examiner) to consider a modification of a Sixth Circuit judgment based on a purported “mistake” of fact, when respondent offered no new evidence nor a dispute over litigated facts. This is apart from the controversy as to whether the request for modification was timely.
The February 5, 1990 communication was not a request for modification nor did it set forth grounds. The first purported request was Mai*ch 28, 1990, and this was untimely. This is an additional basis for rejection of the ultimate, subsequent administrative decision favoring respondent. Furthermore, respondent demonstrated no factual error in the ALJ decision affirmed by this court, nor in any factual determination made by this court in 866 F.2d 195. The time limit for filing expired, at the latest, on March 23, 1990. I would hold that the time period expired a year from the earlier date of the judgment of the Sixth Circuit, January 23,1989.
The majority attempts to convert what clearly is a claim by respondent that a mistake of law occurred by suggesting that the ultimate determination by the ALJ, and by this court, that Milliken’s claim be denied.
Despite the deficiencies in the process, there was a subsequent decision administratively to deny the requested modification in 1993. The Board, in 1995, reversing and remanding the sound decision of the ALJ, which ratified the rationale of the 1986 ALJ determination, observed about the timeliness of the modification request:
[Cjlaimant’s February 5, 1990 letter to Claims Examiner Michael McClaran is sufficient notification of claimant’s intention to request modification of her denied claim, by stating that the formal petition for modification was being prepared for filing with the district director [similar to the previous term, deputy commissioner].
*961The only import of the February 5, 1990 letter in controversy was that it stated that a petition for modification ivas being prepared. Will we permit indefinite extensions of statutory time limits by some vague indication, without specifying reasons, that a petition is being prepared for filing sometime in the future? This judge certainly hopes that we will not countenance such winking and shrugging-off of the demands of the law which, after all, set an ample one-year limit. The Board was in error in disregarding that this court had affirmed the 1986 findings — there was no erroneous “finding [of fact] rendered by an administrative law judge” in 1986. Consolidation Coal Co. v. Worrell, 27 F.3d 227 (6th Cir.1994), simply holds that a deputy commissioner may “rethink a prior finding of fact at any time during the first year after a final order.” Id. at 230 (emphasis added). Woirell,4 however, did not involve a final order of this court ratifying and affirming a prior ALJ determination of fact. No case cited by the majority involves the circumstances involved in this case, attempted modification of a judgment of a court of appeals by a later, long delayed action of an administrative agency. Nothing by way of adequate request for modification, in any event, it occurred within the one year permitted. Respondent even sought, properly I believe, by a petition for review and answered by Y&O, to raise the new contention in the Sixth Circuit, but this was denied and should have ended any administrative modification effort.
In the Board’s 1995 holding moreover, the alleged error in the 1986 ALJ decision was “in failing to apply the presumption set forth in Section 727.204, see Section 411(c)(5) of the Act.” Unquestionably, if this was error, it was an error of law, not of fact, and was not subject to modification.
The only new evidence of any import introduced at a modification hearing was a “consultive medical report by Dr. D.C. Rasmussen.” This came about seventeen years after Milliken’s death and medical evidence much more current and relevant to the pertinent times.
The 1997 ALJ decision, on remand, affirmed by the Board this time, required Y&O to establish that Milliken was not, at death, partially or totally disabled by pneumoconiosis. At the time of death, Milliken had already retired. In his analysis of Dr. Rasmussen’s consultive report, the ALJ noted that (1) “the record did not contain pulmonary function studies, and that it is impossible to determine whether the miner suffered impairment of lung function as a result of pneumoconiosis,” and (2) “the anatomical evidence is insufficient to establish or disconnect a link between the miner’s symptoms and pneumoconiosis.” It is difficult to see how Dr. Rasmussen added anything to the extensive previous discussions of other doctors indicating, at most, minimal signs of pneumoconiosis but major symptoms of heart disease and cancer that brought about Mil-liken’s death. Coupled with these conditions were broken ribs that caused breathing problems and long-term smoking.
On the merits of the case, then, I would not disturb the earlier fact findings and conclusions of the ALJ in 1986 and this court’s judgment. Respondent abandoned or waived her widow’s presumption argument before our court before filing a petition to review. There was no miscarriage of justice in those decisions by any stretch. The earlier ALJ decision, based on essentially the same facts and circumstances, was that “neither Milliken’s death or disability was caused by pneumoconiosis.” That was affirmed by the Sixth Circuit. That precludes a proposed finding of factual error or any basis for modification under the circumstances.
I must express my concern that the majority opinion extends, without any *962sound basis, any prior court law and thus allows a kind of extended and haphazard procedure, without any effective limitation, to allow modification of a circuit court decision. This majority view certainly encourages parties who fail to exercise due diligence in pursuing their claims or defenses to become “ ‘never-say-die’ litigators who abuse the modification procedure by filing repetitive requests.”
I would REVERSE the granting of benefits in this case.
. The majority concedes that
The Supreme Court, in Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 111 S.Ct. 2524, 115 L.Ed.2d 604 (1991), subsequently held, in apparent agreement with this court's 1989 opinion in this case, that the Labor Department regulations were not inconsistent with 30 U.S.C. § 902(f)(2) to the extent that they allowed the interim presumption to be rebutted with evidence demonstrating that the miner does not or did not have pneumoconiosis or that the miner’s disability does not or did not arise out of coal mine employment.
. Milliken did also fully present the "widow's presumption” issue, and moved to stay the mandate, mentioning a possible subsequent petition for certiorari. Y&O filed a memorandum contra to this action of plaintiff indicating a Board decision, Freeman v. Old Ben Coal Co., 3 BLR 1-599, that foreclosed such claim under the findings of the ALJ in 1986.
. Saginaw Mining discussed modification proceedings based upon the facts in that case: should a claimant file a modification request in a pending proceeding with the ALJ pending a Board Review or with the deputy commissioner in order to present new evidence. This is inapposite to the issues before, us in this controversy.
. Worrell involved study of new medical evidence and conflicting medical studies, unlike the situation in the instant case.