Legal Case Summary

Okay. Good morning. May I please court? This is a black long case. I think it has several significant issues in it. But first let me address the jurisdictional question that you raised by court order a few days ago. The question I guess that you're asking is whether the filing of a motion for reconsideration operates in black long claims as a stay on the time for filing appeal to this court. You cite two authorities, Brotherhood of Locomotive Engineers and Bitty B, suggesting perhaps that there is no jurisdiction because the appeal has to be filed under Section 10C of the Administrative Procedure Act within the time of loud. That was standing any motions for reconsideration. There's a lot of law on this. And I think that the principal law is not ICC or Bitty B. First of all, there's a statutory provision in the Longshore Act, 33 USC 921B5, which directs the benefits of view board regulations about its reconsideration procedure. Benefits of view board is written regulations describing its reconsideration procedure and defining for purposes of the Longshore Act, the meaning of the term finality in that program. Regulations are 20 CFR 802 406. And I can read them to you. You can read them yourself. But with the regulations very clearly and undeniably say is that the time to appeal to a court of appeals is stayed. Now let me address the cases just briefly

. So you'd have to find that regulation invalid. I don't think there's any way to do that. And Department of Labor can't ask you to because they're not statutorily authorized to argue that they, one of their regulations is invalid. As far as ICC is concerned, that's case where they held it under the Hobbes Act and under 10C of the Administrator Procedure Act, a motion for reconsideration did not stay the time for filing an appeal. After deciding the case under the Hobbes Act, Justice Scalia went off on a flight of fancy with pages after pages of dictum about how, which suggests that 10C would absolutely prohibit the filing of a, the stay of the appeal time during the penance of a motion for reconsideration. That was too much for the Supreme Court in Darby versus Cisneros case some years later. It clearly repudiated all that dictum, said so, that it was all dictum. And came up with a new rule and said that 10C of the long chart of the APA, and I don't even know the 10C applies to the board, but that's not a question we really even need to reach here. Under 10C, the 10C is not supposed to be a trick to mess up lawyer strategy. It's supposed to be an acknowledgement of, well, it's supposed to define the principles of exhaustion of administrative remedies. It's not a trick to mess up lawyers. What it is is it tells lawyers who are representing parties who are coming up to an appeal that the optional choices prior to an appeal to the Court of Appeals are wherever goes in the federal court system are not required. It's not required for exhaustion. So the Supreme Court, how the Supreme Court defines 10C and how, and I think that's binding. I don't think there's any question about it. And so all we did is we selected the option, and it's perfectly permissible to do so

. The regulation. And what is the option again? The option in the point- Oh, the option is to just go straight to the court of appeals or to go try reconsideration. So the order that you're appealing is the February 25th, 2013 order, which denied the motion for reconsideration. Is that correct? Well, what I notice of appeals says it denies the motion for reconsideration of the order of the board that preceded it. Now, the thing is, you want to trick us, you want to make it into a big game. I can't stop you from doing that. But that's not what we're saying. Well, what's your answer? That's a question. She's not trying to take the innovation. I'm trying to understand what you are saying. We appealed the decision of the benefits review board and the decision on reconsideration. The decision on reconsideration was on the merits. It addressed all the same issues that we had found inappropriately decided in the board's first decision. It was on the merits. And that's the February 25th, 2013 order. That's the order you're appealing

. Well, no, we're appealing both that order and the underlying decision. I mean, I don't know how, I suppose we could say it differently, but it seems to me that we've been doing this for 40 years. This has never come up as an issue except in the few cases where the board had, where we had filed two motions for reconsideration. And in those cases, the courts, and you'd be splitting from them to find that one was insufficient. The six circuit, and in the seven circuit, the seven circuit, the Lumen, the six circuit was the Abner decision that the second motion for reconsideration was not sufficient to toll the statute limitation, the jurisdictional period for failing appeal, but the first one was. And so, I mean, there have been reconsiderations in this program and in the Longshore Act under those regulations for 40 years and those regulations were written specifically in 1987 to be in response to ICC versus Brotherhood of Locomotive Training. That's where they wrote them following a decision by the seven circuit in a case called Archimitar versus Director, where it got to be a little confusing as it is here, but it shouldn't be confusing anymore. Well, your petition says, refers to the order, quote, issued on February 25, 2013, affirming the decision in order of the Pen of Fitz Review Board dated September 27, 2012. But the February 25, 2013 order does not affirm. It doesn't do what your petition for review says it does. Well, you know what I said? I denied the motion for reconsideration. Well, I don't see what difference it makes. I mean, you know, in Betty B, you had to take one or the other. There were two appeals. And the thing is that we can play these word games with this and I think it's inappropriate. I don't see why the word game is going to decide jurisdiction

. Okay, this is for council council. I know you in advocacy would be very careful. It was a quote to not play any games with you. I stepped on. This is a matter of response. No, I know you. I know you. But I just want to be careful. I'll just go ahead and argue. And in Darby versus his narrows, the Supreme Court very clearly said this is not a game of tricks. They described what this is for. You know, we, you know, the Pen of Fitz Review Board used to use a different approach. And that's when you liked in Betty B. Then he changed the style. They didn't change anything else. They changed the style of their denial of reconsideration from a statement that reconsideration was granted

. But then the relief was denied to a statement that it was denied. A purely stylistic change makes no difference. These are all argued on the merits. The reconsideration is on the merits and the very issues that were brought up to this court. And I don't know. We can write it differently, but I don't think it should matter. All right. I mean, let's defer the questions about jurisdiction. May I see it on the merits? Let me go to the question of waiver. We've raised two significant issues here. One of which is the validity of 725-465B, which is the regulation requiring the administrative law judge to get the Department Labor's permission to dismiss an employer. And the other is whether collateral stop will apply in this case. The Department of Labor's waiver argument, I'm not going to spend a lot of time on it, but I think it's really not a valid argument in any respect. They raised that on both accounts. This is not a case where there was any requirement that, or even possibility that these arguments or these points could have been raised in a response of pleading. They happened later

. Things happened later. The Department of Labor raised issues, the 456 issue. In briefs, we responded in the brief. I don't know how you could have done it any faster. With respect to the collateral stop will issue. The, as soon as the decision, the, the, the, the, the claimant, the, the, the, the, the widow's claim said she wasn't interested in pursuing her case, then that meant it was final. And so what we said was that at that point, there was a, there's the, the, the requirements of collateral stop will be the principles of collateral stop will attach to the other pending case. And the letters crossed in the mail. And so it was like, you know, the time for appeal ran out on the 30 of the dates. It's like, you know, a month or two in here where I suppose you could, if there was some kind of law, some kind of case, there were to require us to do something in some particular period of time. We could talk about it. But I think we were pretty reasonably timely in all of these things. And principles of labor clearly would not apply in these cases. It's just an opportunity that the labor department does in all these kinds of cases to give the courts a way to get out of having to decide the underlying issues. You do it all the time and it's inappropriate here. And I think it's inappropriate

. Now, on the 456 issue. This regulation was last for about five seconds in the Supreme Court. And that should be its life here. This is a case. This is this is a situation where the Department of Labor took away from the administrative law judge. The right to decide whether to dismiss ungrounds of of collateral stop. And the regulation says he can't do it. Matter of fact, we just got to that. I just got a decision yesterday where administrative law judge found that the new circuit, who you may see it. Administrative law judge found the employer wasn't responsible. And the LJ said, I can't dismiss the case. So we're still in a case even though we have a finding on the record that we're not responsible. And it will benefit too. And that's what happened essentially here, although we had unadjudicated issue on collateral stop and on the responsible party issue. So you have a regulation and buts versus kind of this Supreme Court's decision. Its description to end the APA's specific provisions are dispositive on 456

. This regulation cannot stand. And there's no virtue to it in any way. And so let me go on to the stop Polish. Let me go on to collateral stop. You know, there was a reason why the widow's claim was denied and the miners claim was approved. Because in the widow's claim had the medical evidence relating to the terminal illness of this man. It had lots more, much better evidence. Permanent labor puts strict limitations on evidence for black long cases. And doesn't let you get out of it very easily, even though the total DC circuit they would. But what happened is that this man had a disease, nothing to do with coal mining. It caused the reaction as long as, cause kidney failure, caused heart failure, it's called familial amyloidosis. It is well established and is the basis for the denial of the widows as survivors claim. But he didn't die nor did he have any kind of black long disease. But in the miners claim, he didn't have a seven. It was perfectly appropriate for us to come forward on the basis of this. And the minor in the widow in this court is held it

. And boy, and Stevenson, it's held it in Supreme Court held it in C-land versus Godette, that a husband and a wife in a situation like this, particularly are tied by privity. And therefore, you don't even need to get the non-mutual, which is permissible, and would apply here to non-mutual offensive collateral, a stop-o. Ordinary garden variety collateral, a stop-o would apply here, because there is clear privity between a husband and a wife in connection with a worker's compensation claim like this. And all of the requirements in concrete, all of the requirements in the valain decision in the seventh circuit, all of the requirements in Parkland, Houserie, which is a non-mutual offensive collateral stop-o case, are met. The parties, and the department labor says, the miner didn't have a fair chance to litigate the widows because he was dead. Of course, that's kind of cute, but irrelevant, because the widow was in privity with her husband. And she had every opportunity to litigate that case. And let me say that the labor department's first recourse, and they say that she didn't have any interest in the case. Well, she did have any interest in the case, if she was involved with the estate, which I'm sure she was, where she was served on everything. The department labor's first recourse in the case of an overpayment, is to go after the estate. And then do that. They said, we're just going to force the employer to litigate this for the next five years. There's only $1,700, and these issues are important, and that's why we're here. But it seems like a kind of wasteful decision on the department labor, especially since they made the decisions, this is all of their own making. They decided they didn't want to go after the estate. Well, I can understand that, but the law requires them to do it

. The law does not require them to go chase after an employer for five years and litigate a case on half a record, which is what they did. Why was the delay in raising collateral stock? Well, I mean, the delay was maybe 45-60 days. It was if you call it a delay. We had to do a brief. You got to put it on the schedule. It wasn't late. It was raised before the agency. There was no delay, really. I suppose it's not like five years or with the kinds of cases, the labor department sites, where you have long periods of time, or are you waiting till the decision is final? Now, they're the final decision in our motion across the mail. We didn't wait for anything. I can't imagine that you can make a believable case that we were illiterate in pursuing that issue. I really don't see it. They may tell you that it's different, but that's all I have. All right. Thank you, Mr. Salomon. Ms. Hurley. Okay. May I please support my name is Sarah Hurley, and I represent the Director of Office of Workers' Compensation Programs, the United States Department of Labor. I'd just like to briefly address the jurisdictional question here. It is a matter of black letter law that you can't appeal a summary order that denies reconsideration. Here, eastern's petition on its face appears just to do that exact thing. They were only appealing the BRB's February 25, 2013 order denying recon. I think the courts overarching concern here is whether eastern's petition complied with the federal rule of appellate procedure 15, which is concerned with whether the petition for review adequately specified the order to be reviewed. And in exact specification is not fatal if the petitioner's intent to seek review of a specific order can be fairly inferred from the pleadings or other contemporaneous findings, and the respondent is not misled by the mistake. And I think here we have to concede that we were not misled here. When eastern did file its petition, it did attach both of those orders. So we knew that they were appealing both of them, and we weren't misled. So I think that you're the court has jurisdiction here. Now to the merits of the case, your honors were here today in an appeal which eastern is actually requesting relief from its own self-inflicted wounds. Now, eastern first argues that ALG Miller was wrong to an issue of final decision on the merits and the minors claim

. Ms. Hurley. Okay. May I please support my name is Sarah Hurley, and I represent the Director of Office of Workers' Compensation Programs, the United States Department of Labor. I'd just like to briefly address the jurisdictional question here. It is a matter of black letter law that you can't appeal a summary order that denies reconsideration. Here, eastern's petition on its face appears just to do that exact thing. They were only appealing the BRB's February 25, 2013 order denying recon. I think the courts overarching concern here is whether eastern's petition complied with the federal rule of appellate procedure 15, which is concerned with whether the petition for review adequately specified the order to be reviewed. And in exact specification is not fatal if the petitioner's intent to seek review of a specific order can be fairly inferred from the pleadings or other contemporaneous findings, and the respondent is not misled by the mistake. And I think here we have to concede that we were not misled here. When eastern did file its petition, it did attach both of those orders. So we knew that they were appealing both of them, and we weren't misled. So I think that you're the court has jurisdiction here. Now to the merits of the case, your honors were here today in an appeal which eastern is actually requesting relief from its own self-inflicted wounds. Now, eastern first argues that ALG Miller was wrong to an issue of final decision on the merits and the minors claim. But eastern never made this argument to ALG Miller despite the fact that three months before he issued his decision awarding benefits to the minor, he specifically issued a procedural order to the parties, including the employer, that requested input as to how the case should proceed, and eastern ignored ALG Miller's order. And in essence, acquiesce to his decision on the merits and the minors claim. And eastern also argues that ALG Miller should have applied collateral a stopper to deny the minors claim based on findings made by ALG Turic in the survivors claim three months before. But eastern didn't alert ALG Miller to its collateral a stopper argument until after ALG Miller had adjudicated the minors case and awarded benefits. Now, eastern was represented by the same counsel in both the minors and the widow's claim. And there was no excuse for them not alerting ALG Miller at the earliest opportunity. How does separate ALG get assigned the same matter? It doesn't happen. It happens not that often. Usually we try and keep the widows and the minors claims together. But at this time for some reason they were separated. And I don't know the reason. I'm sorry, I don't know the reason why it does happen sometimes that they're on separate tracks. But here and here they have the reason. The respondent could have fixed that. Could it not? Well, I think it probably had gone too long for us to really. No, when I say the respondent, I mean the employer or the responsible part

. But eastern never made this argument to ALG Miller despite the fact that three months before he issued his decision awarding benefits to the minor, he specifically issued a procedural order to the parties, including the employer, that requested input as to how the case should proceed, and eastern ignored ALG Miller's order. And in essence, acquiesce to his decision on the merits and the minors claim. And eastern also argues that ALG Miller should have applied collateral a stopper to deny the minors claim based on findings made by ALG Turic in the survivors claim three months before. But eastern didn't alert ALG Miller to its collateral a stopper argument until after ALG Miller had adjudicated the minors case and awarded benefits. Now, eastern was represented by the same counsel in both the minors and the widow's claim. And there was no excuse for them not alerting ALG Miller at the earliest opportunity. How does separate ALG get assigned the same matter? It doesn't happen. It happens not that often. Usually we try and keep the widows and the minors claims together. But at this time for some reason they were separated. And I don't know the reason. I'm sorry, I don't know the reason why it does happen sometimes that they're on separate tracks. But here and here they have the reason. The respondent could have fixed that. Could it not? Well, I think it probably had gone too long for us to really. No, when I say the respondent, I mean the employer or the responsible part. Maybe request that the vote. In solidation. Yeah, I think you're right. Actually, you probably already. Is there any reason they couldn't have? They probably could have. Sure, they sure they got the same lawyer. I have them both cases. Exactly. Exactly. So if you lost the first one, why would you want to do it? You know, if you take your chance, still don't know them. I'm just saying. That's true. But in any event, the substance of the two arguments that Eastern presents in this appeal have no merit. Okay, Eastern first is challenging the validity of our regulation. 725-465-D as contrary to the Administrative Procedure Act. And Section 725-465-D allows an ALJ to dismiss a claim prior to a final education of eligibility

. Maybe request that the vote. In solidation. Yeah, I think you're right. Actually, you probably already. Is there any reason they couldn't have? They probably could have. Sure, they sure they got the same lawyer. I have them both cases. Exactly. Exactly. So if you lost the first one, why would you want to do it? You know, if you take your chance, still don't know them. I'm just saying. That's true. But in any event, the substance of the two arguments that Eastern presents in this appeal have no merit. Okay, Eastern first is challenging the validity of our regulation. 725-465-D as contrary to the Administrative Procedure Act. And Section 725-465-D allows an ALJ to dismiss a claim prior to a final education of eligibility. When a claimant or representative fails to attend a hearing or comply with a lawful order. But before an ALJ may similarly dismiss due to a claimant's inaction, Section 725-465-D provides that the ALJ must obtain the director's consent to dismissal in cases where the Black Long Disability Trust Fund has paid the claimant interim benefits. And that's exactly what happened here in this minor's case. We had paid this minor benefits. And a final adjudication of eligibility determines who is responsible to reimburse the trust fund. Therefore, the director has to consent to any kind of summary dismissal for cause. We have to ensure that we receive a completed adjudication of our interest and preserve our opportunity to recoup expenditures from the trust fund. Now, Eastern argues that the regulation violates the APA's grant of Decisional Independence to the ALJ. But Eastern didn't raise this argument before the ALJ or even in its opening briefed before the BRB and so its way of this argument. And the ALJs actually did not rely on this regulation at all in allowing the minor's case to proceed. So the regulation played no role in the ALJ's decision making. And in any event, Section 725-465-D does not interfere with an ALJ's Decisional Independence. It simply ensures a complete adjudication of the director's interest where he has a direct financial stake in the case by virtue of having paid interim benefits. By giving the director the approval rights before acclaimance in action can cause a summary dismissal, the regulation merely ensures that adjudication on the merits will occur when needed. The regulation does not interfere with the ALJ's ability to render an impartial decision nor affect the final decision itself. It doesn't direct the ALJ to rule for the director or for any party

. When a claimant or representative fails to attend a hearing or comply with a lawful order. But before an ALJ may similarly dismiss due to a claimant's inaction, Section 725-465-D provides that the ALJ must obtain the director's consent to dismissal in cases where the Black Long Disability Trust Fund has paid the claimant interim benefits. And that's exactly what happened here in this minor's case. We had paid this minor benefits. And a final adjudication of eligibility determines who is responsible to reimburse the trust fund. Therefore, the director has to consent to any kind of summary dismissal for cause. We have to ensure that we receive a completed adjudication of our interest and preserve our opportunity to recoup expenditures from the trust fund. Now, Eastern argues that the regulation violates the APA's grant of Decisional Independence to the ALJ. But Eastern didn't raise this argument before the ALJ or even in its opening briefed before the BRB and so its way of this argument. And the ALJs actually did not rely on this regulation at all in allowing the minor's case to proceed. So the regulation played no role in the ALJ's decision making. And in any event, Section 725-465-D does not interfere with an ALJ's Decisional Independence. It simply ensures a complete adjudication of the director's interest where he has a direct financial stake in the case by virtue of having paid interim benefits. By giving the director the approval rights before acclaimance in action can cause a summary dismissal, the regulation merely ensures that adjudication on the merits will occur when needed. The regulation does not interfere with the ALJ's ability to render an impartial decision nor affect the final decision itself. It doesn't direct the ALJ to rule for the director or for any party. Rather, it only requires some final determination on the merits when a claimant fails to timely act and the trust fund has paid benefits. Now as to the collateral stop-alargument, Eastern argues that the award in the minor's case is barred by collateral stop-alght. But Eastern didn't raise this argument at the earliest opportunity before ALJ miller, so Eastern has waived it. And Eastern's tardy assertion of its defense, it was raised only after ALJ miller had awarded benefits undercuts the whole purpose of collateral stop-alght. In any event, Eastern can't prevail on its collateral stop-alght defense because all the elements have not been met here. Eastern has not cannot establish the parties against whom collateral stop-alght asserted had a full and fair opportunity to litigate the issue of pneumoconiosis in the widow's claim. The deceased minor was not a party to his wife's survivor's claim and she did not act as his fiduciary in prosecuting her claim because the minor had no protectable interest in her survivor's benefits. And the director, who was Eastern's real party opponent here, did not have a full and fair opportunity to litigate the issue because we agreed with ALJ turics denial of survivor's benefits but on different grounds. Therefore, the director wasn't agreed by ALJ turics decision and had no incentive to appeal his finding of known pneumoconiosis in the survivor's claim. And that's all I have unless you have any questions, Your Honor. Thank you very much. Thank you. The government has a lot of misleading things to say and a lot of things that are just not not accurate or true. First of all, the motion to dismiss was made under the ALJ's regs not under the BRB regulations, 29 CFR Part 18. And that's where it says you can dismiss on the same grounds as some regedment in a federal district court. The Department of Labor argues that we didn't raise it in time

. Rather, it only requires some final determination on the merits when a claimant fails to timely act and the trust fund has paid benefits. Now as to the collateral stop-alargument, Eastern argues that the award in the minor's case is barred by collateral stop-alght. But Eastern didn't raise this argument at the earliest opportunity before ALJ miller, so Eastern has waived it. And Eastern's tardy assertion of its defense, it was raised only after ALJ miller had awarded benefits undercuts the whole purpose of collateral stop-alght. In any event, Eastern can't prevail on its collateral stop-alght defense because all the elements have not been met here. Eastern has not cannot establish the parties against whom collateral stop-alght asserted had a full and fair opportunity to litigate the issue of pneumoconiosis in the widow's claim. The deceased minor was not a party to his wife's survivor's claim and she did not act as his fiduciary in prosecuting her claim because the minor had no protectable interest in her survivor's benefits. And the director, who was Eastern's real party opponent here, did not have a full and fair opportunity to litigate the issue because we agreed with ALJ turics denial of survivor's benefits but on different grounds. Therefore, the director wasn't agreed by ALJ turics decision and had no incentive to appeal his finding of known pneumoconiosis in the survivor's claim. And that's all I have unless you have any questions, Your Honor. Thank you very much. Thank you. The government has a lot of misleading things to say and a lot of things that are just not not accurate or true. First of all, the motion to dismiss was made under the ALJ's regs not under the BRB regulations, 29 CFR Part 18. And that's where it says you can dismiss on the same grounds as some regedment in a federal district court. The Department of Labor argues that we didn't raise it in time. Well, it wasn't time. Who says what's in time? You know, a month, two months, we raised it. Administrative law judges usually take years to issue decisions. We raised it at the same time as it turns out that the administrative law judge decisions crossing in the mail. We raised it right there. And he said he didn't have jury. He wasn't going to consider it. So we felt for a time we for reconsideration. You could not have raised it earlier. Unless there was some obligation, some place to raise this issue immediately after decision came out. I mean, you know, we represent clients. We got to go to them. We got to ask them what they want to do. We have arguments. Takes a couple of weeks, a couple of months. That's not unreasonable

. Well, it wasn't time. Who says what's in time? You know, a month, two months, we raised it. Administrative law judges usually take years to issue decisions. We raised it at the same time as it turns out that the administrative law judge decisions crossing in the mail. We raised it right there. And he said he didn't have jury. He wasn't going to consider it. So we felt for a time we for reconsideration. You could not have raised it earlier. Unless there was some obligation, some place to raise this issue immediately after decision came out. I mean, you know, we represent clients. We got to go to them. We got to ask them what they want to do. We have arguments. Takes a couple of weeks, a couple of months. That's not unreasonable. And that's not waiver. And that's what happened here. Now, as far as you know, the collateral, the collateral is a stable issue and how the Department of Labor doesn't have any interest. Fact of the matter is the Department of Labor's regulation violates the APA period. And so whether they don't think it's fair, I think that's just too bad. The violation of the APA is so apparent. It is so clear. It is so obvious. If you read the Supreme Court's decision and bots, but you don't even need to read it. How does the regulation interfere with judicial independence? Does the regulation interfere with judicial independence? Sure does. How would you like it if there was a rule that said, you know, you can decide this and this and this. You can't decide that unless me, the party agrees that you can do it, that you can decide it in a particular way. That's interference. That's not a marriage decision. That's just to make sure the party is not removed from the case. That's not a marriage decision

. And that's not waiver. And that's what happened here. Now, as far as you know, the collateral, the collateral is a stable issue and how the Department of Labor doesn't have any interest. Fact of the matter is the Department of Labor's regulation violates the APA period. And so whether they don't think it's fair, I think that's just too bad. The violation of the APA is so apparent. It is so clear. It is so obvious. If you read the Supreme Court's decision and bots, but you don't even need to read it. How does the regulation interfere with judicial independence? Does the regulation interfere with judicial independence? Sure does. How would you like it if there was a rule that said, you know, you can decide this and this and this. You can't decide that unless me, the party agrees that you can do it, that you can decide it in a particular way. That's interference. That's not a marriage decision. That's just to make sure the party is not removed from the case. That's not a marriage decision. You're on, they're all marriage decisions. This a marriage decision, whether we're responsible, that's on the merits. And that's what this decision, that's what this regulation prohibits. It can't be something different. You can't candy coat this. This is an invalid rule. Could the director recover the payments from the estate in the absence of a final judgment? No. So the case had to go to final judgment? No it didn't. Okay, I didn't understand your two answers. Well, you know, the thing is that if the administrative law judge could have decided it, if the administrative law judge could have relied upon the decisions that we've cited saying that the the departmental labor can't go pursuing this kind of thing, then yeah, they would have had a final decision. And then if the regulation wasn't there, and if they had a final decision, then they could have gone after the estate. And as a matter of fact, they're supposed to go after the estate first, not push litigation. Can you imagine how complicated and difficult it is of every time? The departmental labor didn't even go look. It's $1,700. So this isn't going to break most of the states. I know that these people are not rich, but you know, my may have been there

. You're on, they're all marriage decisions. This a marriage decision, whether we're responsible, that's on the merits. And that's what this decision, that's what this regulation prohibits. It can't be something different. You can't candy coat this. This is an invalid rule. Could the director recover the payments from the estate in the absence of a final judgment? No. So the case had to go to final judgment? No it didn't. Okay, I didn't understand your two answers. Well, you know, the thing is that if the administrative law judge could have decided it, if the administrative law judge could have relied upon the decisions that we've cited saying that the the departmental labor can't go pursuing this kind of thing, then yeah, they would have had a final decision. And then if the regulation wasn't there, and if they had a final decision, then they could have gone after the estate. And as a matter of fact, they're supposed to go after the estate first, not push litigation. Can you imagine how complicated and difficult it is of every time? The departmental labor didn't even go look. It's $1,700. So this isn't going to break most of the states. I know that these people are not rich, but you know, my may have been there. They didn't even look for it. They just decided they want to go litigate for the next five years with the coal company. I don't know if you suggest one or the thing. You've asked for brief on the jurisdictional question. You know, I got a client just coming out of bankruptcy here. You know, if you could find it in your hearts. Do you think we have hearts up here? Yeah. We've rescinded that order. Council, you read my mind because we're going to do a little sidebar, hold on it, you would with that. That's the other thing further? No. Okay, hold on for a second. Council, you see, we do things fast sometimes and sometimes favorable to you. We're rarely, we're going to spend our order asking for briefs here and hopefully we don't have to weaken. So you don't need to file briefs with the only jurisdictional matter. But that, I think both council will come down and greet council.

Okay. Good morning. May I please court? This is a black long case. I think it has several significant issues in it. But first let me address the jurisdictional question that you raised by court order a few days ago. The question I guess that you're asking is whether the filing of a motion for reconsideration operates in black long claims as a stay on the time for filing appeal to this court. You cite two authorities, Brotherhood of Locomotive Engineers and Bitty B, suggesting perhaps that there is no jurisdiction because the appeal has to be filed under Section 10C of the Administrative Procedure Act within the time of loud. That was standing any motions for reconsideration. There's a lot of law on this. And I think that the principal law is not ICC or Bitty B. First of all, there's a statutory provision in the Longshore Act, 33 USC 921B5, which directs the benefits of view board regulations about its reconsideration procedure. Benefits of view board is written regulations describing its reconsideration procedure and defining for purposes of the Longshore Act, the meaning of the term finality in that program. Regulations are 20 CFR 802 406. And I can read them to you. You can read them yourself. But with the regulations very clearly and undeniably say is that the time to appeal to a court of appeals is stayed. Now let me address the cases just briefly. So you'd have to find that regulation invalid. I don't think there's any way to do that. And Department of Labor can't ask you to because they're not statutorily authorized to argue that they, one of their regulations is invalid. As far as ICC is concerned, that's case where they held it under the Hobbes Act and under 10C of the Administrator Procedure Act, a motion for reconsideration did not stay the time for filing an appeal. After deciding the case under the Hobbes Act, Justice Scalia went off on a flight of fancy with pages after pages of dictum about how, which suggests that 10C would absolutely prohibit the filing of a, the stay of the appeal time during the penance of a motion for reconsideration. That was too much for the Supreme Court in Darby versus Cisneros case some years later. It clearly repudiated all that dictum, said so, that it was all dictum. And came up with a new rule and said that 10C of the long chart of the APA, and I don't even know the 10C applies to the board, but that's not a question we really even need to reach here. Under 10C, the 10C is not supposed to be a trick to mess up lawyer strategy. It's supposed to be an acknowledgement of, well, it's supposed to define the principles of exhaustion of administrative remedies. It's not a trick to mess up lawyers. What it is is it tells lawyers who are representing parties who are coming up to an appeal that the optional choices prior to an appeal to the Court of Appeals are wherever goes in the federal court system are not required. It's not required for exhaustion. So the Supreme Court, how the Supreme Court defines 10C and how, and I think that's binding. I don't think there's any question about it. And so all we did is we selected the option, and it's perfectly permissible to do so. The regulation. And what is the option again? The option in the point- Oh, the option is to just go straight to the court of appeals or to go try reconsideration. So the order that you're appealing is the February 25th, 2013 order, which denied the motion for reconsideration. Is that correct? Well, what I notice of appeals says it denies the motion for reconsideration of the order of the board that preceded it. Now, the thing is, you want to trick us, you want to make it into a big game. I can't stop you from doing that. But that's not what we're saying. Well, what's your answer? That's a question. She's not trying to take the innovation. I'm trying to understand what you are saying. We appealed the decision of the benefits review board and the decision on reconsideration. The decision on reconsideration was on the merits. It addressed all the same issues that we had found inappropriately decided in the board's first decision. It was on the merits. And that's the February 25th, 2013 order. That's the order you're appealing. Well, no, we're appealing both that order and the underlying decision. I mean, I don't know how, I suppose we could say it differently, but it seems to me that we've been doing this for 40 years. This has never come up as an issue except in the few cases where the board had, where we had filed two motions for reconsideration. And in those cases, the courts, and you'd be splitting from them to find that one was insufficient. The six circuit, and in the seven circuit, the seven circuit, the Lumen, the six circuit was the Abner decision that the second motion for reconsideration was not sufficient to toll the statute limitation, the jurisdictional period for failing appeal, but the first one was. And so, I mean, there have been reconsiderations in this program and in the Longshore Act under those regulations for 40 years and those regulations were written specifically in 1987 to be in response to ICC versus Brotherhood of Locomotive Training. That's where they wrote them following a decision by the seven circuit in a case called Archimitar versus Director, where it got to be a little confusing as it is here, but it shouldn't be confusing anymore. Well, your petition says, refers to the order, quote, issued on February 25, 2013, affirming the decision in order of the Pen of Fitz Review Board dated September 27, 2012. But the February 25, 2013 order does not affirm. It doesn't do what your petition for review says it does. Well, you know what I said? I denied the motion for reconsideration. Well, I don't see what difference it makes. I mean, you know, in Betty B, you had to take one or the other. There were two appeals. And the thing is that we can play these word games with this and I think it's inappropriate. I don't see why the word game is going to decide jurisdiction. Okay, this is for council council. I know you in advocacy would be very careful. It was a quote to not play any games with you. I stepped on. This is a matter of response. No, I know you. I know you. But I just want to be careful. I'll just go ahead and argue. And in Darby versus his narrows, the Supreme Court very clearly said this is not a game of tricks. They described what this is for. You know, we, you know, the Pen of Fitz Review Board used to use a different approach. And that's when you liked in Betty B. Then he changed the style. They didn't change anything else. They changed the style of their denial of reconsideration from a statement that reconsideration was granted. But then the relief was denied to a statement that it was denied. A purely stylistic change makes no difference. These are all argued on the merits. The reconsideration is on the merits and the very issues that were brought up to this court. And I don't know. We can write it differently, but I don't think it should matter. All right. I mean, let's defer the questions about jurisdiction. May I see it on the merits? Let me go to the question of waiver. We've raised two significant issues here. One of which is the validity of 725-465B, which is the regulation requiring the administrative law judge to get the Department Labor's permission to dismiss an employer. And the other is whether collateral stop will apply in this case. The Department of Labor's waiver argument, I'm not going to spend a lot of time on it, but I think it's really not a valid argument in any respect. They raised that on both accounts. This is not a case where there was any requirement that, or even possibility that these arguments or these points could have been raised in a response of pleading. They happened later. Things happened later. The Department of Labor raised issues, the 456 issue. In briefs, we responded in the brief. I don't know how you could have done it any faster. With respect to the collateral stop will issue. The, as soon as the decision, the, the, the, the, the claimant, the, the, the, the, the widow's claim said she wasn't interested in pursuing her case, then that meant it was final. And so what we said was that at that point, there was a, there's the, the, the requirements of collateral stop will be the principles of collateral stop will attach to the other pending case. And the letters crossed in the mail. And so it was like, you know, the time for appeal ran out on the 30 of the dates. It's like, you know, a month or two in here where I suppose you could, if there was some kind of law, some kind of case, there were to require us to do something in some particular period of time. We could talk about it. But I think we were pretty reasonably timely in all of these things. And principles of labor clearly would not apply in these cases. It's just an opportunity that the labor department does in all these kinds of cases to give the courts a way to get out of having to decide the underlying issues. You do it all the time and it's inappropriate here. And I think it's inappropriate. Now, on the 456 issue. This regulation was last for about five seconds in the Supreme Court. And that should be its life here. This is a case. This is this is a situation where the Department of Labor took away from the administrative law judge. The right to decide whether to dismiss ungrounds of of collateral stop. And the regulation says he can't do it. Matter of fact, we just got to that. I just got a decision yesterday where administrative law judge found that the new circuit, who you may see it. Administrative law judge found the employer wasn't responsible. And the LJ said, I can't dismiss the case. So we're still in a case even though we have a finding on the record that we're not responsible. And it will benefit too. And that's what happened essentially here, although we had unadjudicated issue on collateral stop and on the responsible party issue. So you have a regulation and buts versus kind of this Supreme Court's decision. Its description to end the APA's specific provisions are dispositive on 456. This regulation cannot stand. And there's no virtue to it in any way. And so let me go on to the stop Polish. Let me go on to collateral stop. You know, there was a reason why the widow's claim was denied and the miners claim was approved. Because in the widow's claim had the medical evidence relating to the terminal illness of this man. It had lots more, much better evidence. Permanent labor puts strict limitations on evidence for black long cases. And doesn't let you get out of it very easily, even though the total DC circuit they would. But what happened is that this man had a disease, nothing to do with coal mining. It caused the reaction as long as, cause kidney failure, caused heart failure, it's called familial amyloidosis. It is well established and is the basis for the denial of the widows as survivors claim. But he didn't die nor did he have any kind of black long disease. But in the miners claim, he didn't have a seven. It was perfectly appropriate for us to come forward on the basis of this. And the minor in the widow in this court is held it. And boy, and Stevenson, it's held it in Supreme Court held it in C-land versus Godette, that a husband and a wife in a situation like this, particularly are tied by privity. And therefore, you don't even need to get the non-mutual, which is permissible, and would apply here to non-mutual offensive collateral, a stop-o. Ordinary garden variety collateral, a stop-o would apply here, because there is clear privity between a husband and a wife in connection with a worker's compensation claim like this. And all of the requirements in concrete, all of the requirements in the valain decision in the seventh circuit, all of the requirements in Parkland, Houserie, which is a non-mutual offensive collateral stop-o case, are met. The parties, and the department labor says, the miner didn't have a fair chance to litigate the widows because he was dead. Of course, that's kind of cute, but irrelevant, because the widow was in privity with her husband. And she had every opportunity to litigate that case. And let me say that the labor department's first recourse, and they say that she didn't have any interest in the case. Well, she did have any interest in the case, if she was involved with the estate, which I'm sure she was, where she was served on everything. The department labor's first recourse in the case of an overpayment, is to go after the estate. And then do that. They said, we're just going to force the employer to litigate this for the next five years. There's only $1,700, and these issues are important, and that's why we're here. But it seems like a kind of wasteful decision on the department labor, especially since they made the decisions, this is all of their own making. They decided they didn't want to go after the estate. Well, I can understand that, but the law requires them to do it. The law does not require them to go chase after an employer for five years and litigate a case on half a record, which is what they did. Why was the delay in raising collateral stock? Well, I mean, the delay was maybe 45-60 days. It was if you call it a delay. We had to do a brief. You got to put it on the schedule. It wasn't late. It was raised before the agency. There was no delay, really. I suppose it's not like five years or with the kinds of cases, the labor department sites, where you have long periods of time, or are you waiting till the decision is final? Now, they're the final decision in our motion across the mail. We didn't wait for anything. I can't imagine that you can make a believable case that we were illiterate in pursuing that issue. I really don't see it. They may tell you that it's different, but that's all I have. All right. Thank you, Mr. Salomon. Ms. Hurley. Okay. May I please support my name is Sarah Hurley, and I represent the Director of Office of Workers' Compensation Programs, the United States Department of Labor. I'd just like to briefly address the jurisdictional question here. It is a matter of black letter law that you can't appeal a summary order that denies reconsideration. Here, eastern's petition on its face appears just to do that exact thing. They were only appealing the BRB's February 25, 2013 order denying recon. I think the courts overarching concern here is whether eastern's petition complied with the federal rule of appellate procedure 15, which is concerned with whether the petition for review adequately specified the order to be reviewed. And in exact specification is not fatal if the petitioner's intent to seek review of a specific order can be fairly inferred from the pleadings or other contemporaneous findings, and the respondent is not misled by the mistake. And I think here we have to concede that we were not misled here. When eastern did file its petition, it did attach both of those orders. So we knew that they were appealing both of them, and we weren't misled. So I think that you're the court has jurisdiction here. Now to the merits of the case, your honors were here today in an appeal which eastern is actually requesting relief from its own self-inflicted wounds. Now, eastern first argues that ALG Miller was wrong to an issue of final decision on the merits and the minors claim. But eastern never made this argument to ALG Miller despite the fact that three months before he issued his decision awarding benefits to the minor, he specifically issued a procedural order to the parties, including the employer, that requested input as to how the case should proceed, and eastern ignored ALG Miller's order. And in essence, acquiesce to his decision on the merits and the minors claim. And eastern also argues that ALG Miller should have applied collateral a stopper to deny the minors claim based on findings made by ALG Turic in the survivors claim three months before. But eastern didn't alert ALG Miller to its collateral a stopper argument until after ALG Miller had adjudicated the minors case and awarded benefits. Now, eastern was represented by the same counsel in both the minors and the widow's claim. And there was no excuse for them not alerting ALG Miller at the earliest opportunity. How does separate ALG get assigned the same matter? It doesn't happen. It happens not that often. Usually we try and keep the widows and the minors claims together. But at this time for some reason they were separated. And I don't know the reason. I'm sorry, I don't know the reason why it does happen sometimes that they're on separate tracks. But here and here they have the reason. The respondent could have fixed that. Could it not? Well, I think it probably had gone too long for us to really. No, when I say the respondent, I mean the employer or the responsible part. Maybe request that the vote. In solidation. Yeah, I think you're right. Actually, you probably already. Is there any reason they couldn't have? They probably could have. Sure, they sure they got the same lawyer. I have them both cases. Exactly. Exactly. So if you lost the first one, why would you want to do it? You know, if you take your chance, still don't know them. I'm just saying. That's true. But in any event, the substance of the two arguments that Eastern presents in this appeal have no merit. Okay, Eastern first is challenging the validity of our regulation. 725-465-D as contrary to the Administrative Procedure Act. And Section 725-465-D allows an ALJ to dismiss a claim prior to a final education of eligibility. When a claimant or representative fails to attend a hearing or comply with a lawful order. But before an ALJ may similarly dismiss due to a claimant's inaction, Section 725-465-D provides that the ALJ must obtain the director's consent to dismissal in cases where the Black Long Disability Trust Fund has paid the claimant interim benefits. And that's exactly what happened here in this minor's case. We had paid this minor benefits. And a final adjudication of eligibility determines who is responsible to reimburse the trust fund. Therefore, the director has to consent to any kind of summary dismissal for cause. We have to ensure that we receive a completed adjudication of our interest and preserve our opportunity to recoup expenditures from the trust fund. Now, Eastern argues that the regulation violates the APA's grant of Decisional Independence to the ALJ. But Eastern didn't raise this argument before the ALJ or even in its opening briefed before the BRB and so its way of this argument. And the ALJs actually did not rely on this regulation at all in allowing the minor's case to proceed. So the regulation played no role in the ALJ's decision making. And in any event, Section 725-465-D does not interfere with an ALJ's Decisional Independence. It simply ensures a complete adjudication of the director's interest where he has a direct financial stake in the case by virtue of having paid interim benefits. By giving the director the approval rights before acclaimance in action can cause a summary dismissal, the regulation merely ensures that adjudication on the merits will occur when needed. The regulation does not interfere with the ALJ's ability to render an impartial decision nor affect the final decision itself. It doesn't direct the ALJ to rule for the director or for any party. Rather, it only requires some final determination on the merits when a claimant fails to timely act and the trust fund has paid benefits. Now as to the collateral stop-alargument, Eastern argues that the award in the minor's case is barred by collateral stop-alght. But Eastern didn't raise this argument at the earliest opportunity before ALJ miller, so Eastern has waived it. And Eastern's tardy assertion of its defense, it was raised only after ALJ miller had awarded benefits undercuts the whole purpose of collateral stop-alght. In any event, Eastern can't prevail on its collateral stop-alght defense because all the elements have not been met here. Eastern has not cannot establish the parties against whom collateral stop-alght asserted had a full and fair opportunity to litigate the issue of pneumoconiosis in the widow's claim. The deceased minor was not a party to his wife's survivor's claim and she did not act as his fiduciary in prosecuting her claim because the minor had no protectable interest in her survivor's benefits. And the director, who was Eastern's real party opponent here, did not have a full and fair opportunity to litigate the issue because we agreed with ALJ turics denial of survivor's benefits but on different grounds. Therefore, the director wasn't agreed by ALJ turics decision and had no incentive to appeal his finding of known pneumoconiosis in the survivor's claim. And that's all I have unless you have any questions, Your Honor. Thank you very much. Thank you. The government has a lot of misleading things to say and a lot of things that are just not not accurate or true. First of all, the motion to dismiss was made under the ALJ's regs not under the BRB regulations, 29 CFR Part 18. And that's where it says you can dismiss on the same grounds as some regedment in a federal district court. The Department of Labor argues that we didn't raise it in time. Well, it wasn't time. Who says what's in time? You know, a month, two months, we raised it. Administrative law judges usually take years to issue decisions. We raised it at the same time as it turns out that the administrative law judge decisions crossing in the mail. We raised it right there. And he said he didn't have jury. He wasn't going to consider it. So we felt for a time we for reconsideration. You could not have raised it earlier. Unless there was some obligation, some place to raise this issue immediately after decision came out. I mean, you know, we represent clients. We got to go to them. We got to ask them what they want to do. We have arguments. Takes a couple of weeks, a couple of months. That's not unreasonable. And that's not waiver. And that's what happened here. Now, as far as you know, the collateral, the collateral is a stable issue and how the Department of Labor doesn't have any interest. Fact of the matter is the Department of Labor's regulation violates the APA period. And so whether they don't think it's fair, I think that's just too bad. The violation of the APA is so apparent. It is so clear. It is so obvious. If you read the Supreme Court's decision and bots, but you don't even need to read it. How does the regulation interfere with judicial independence? Does the regulation interfere with judicial independence? Sure does. How would you like it if there was a rule that said, you know, you can decide this and this and this. You can't decide that unless me, the party agrees that you can do it, that you can decide it in a particular way. That's interference. That's not a marriage decision. That's just to make sure the party is not removed from the case. That's not a marriage decision. You're on, they're all marriage decisions. This a marriage decision, whether we're responsible, that's on the merits. And that's what this decision, that's what this regulation prohibits. It can't be something different. You can't candy coat this. This is an invalid rule. Could the director recover the payments from the estate in the absence of a final judgment? No. So the case had to go to final judgment? No it didn't. Okay, I didn't understand your two answers. Well, you know, the thing is that if the administrative law judge could have decided it, if the administrative law judge could have relied upon the decisions that we've cited saying that the the departmental labor can't go pursuing this kind of thing, then yeah, they would have had a final decision. And then if the regulation wasn't there, and if they had a final decision, then they could have gone after the estate. And as a matter of fact, they're supposed to go after the estate first, not push litigation. Can you imagine how complicated and difficult it is of every time? The departmental labor didn't even go look. It's $1,700. So this isn't going to break most of the states. I know that these people are not rich, but you know, my may have been there. They didn't even look for it. They just decided they want to go litigate for the next five years with the coal company. I don't know if you suggest one or the thing. You've asked for brief on the jurisdictional question. You know, I got a client just coming out of bankruptcy here. You know, if you could find it in your hearts. Do you think we have hearts up here? Yeah. We've rescinded that order. Council, you read my mind because we're going to do a little sidebar, hold on it, you would with that. That's the other thing further? No. Okay, hold on for a second. Council, you see, we do things fast sometimes and sometimes favorable to you. We're rarely, we're going to spend our order asking for briefs here and hopefully we don't have to weaken. So you don't need to file briefs with the only jurisdictional matter. But that, I think both council will come down and greet council