The DOL did not exceed its authority in revising § 725.219 to allow
a child beneficiary who loses eligibility due to marriage to reapply for
benefits if the marriage ends. § 725.219(d). The language of the
BLBA supports the DOL's conclusion that a child whose marriage terminates
fulfills the statutory eligibility criteria for being "unmarried." See
30 U.S.C. § 902 (g)(1) ("The term `child' means a child or a
stepchild who is unmarried"). See, generally, 65 Fed. Reg. 79966-67,
Plaintiffs claim that the DOL exceeded its authority in revising those
regulatory provisions pertaining to payment of attorney's fees;
interest; additional compensation for nonpayment of benefits; witness
fees; and the cost of the complete pulmonary evaluation guaranteed to
every miner by the BLBA. Plaintiffs argue that in all but exceptional
circumstances, not present here, attorney's fees and cost shifting lies
solely within the discretion of Congress.
The BLBA incorporates fee and cost-shifting provisions from the
Longshore Act. Section 28(a) of the Longshore Act provides that "there
shall be awarded in addition to the award of compensation a reasonable
attorney's fee against the employer" where two conditions are satisfied:
(1) the employer "declines to pay any compensation on or before the
thirtieth day after receiving written notice of a claim for
compensation," and (2) the claimant has "thereafter utilized the services
of an attorney at law in the successful prosecution of his claim."
33 U.S.C. § 928 (a).
Section § 725.366 provides the procedure for collecting attorney's
fees which are permitted when they are "reasonably commensurate" with
work performed. Revised § 725.367(a) imposes attorney fee liability
(1) when an operator "fails to accept the claimant's entitlement to
benefits within the 30-day period [following the issuance of a schedule
for the submission of additional evidence] and is ultimately determined
to be liable for benefits," and (2) where the claimant has thereafter
retained an attorney to prosecute his or her claim. This is consistent
with 33 U.S.C. § 928 (a).
Plaintiffs claim this provision violates 33 U.S.C. § 928 (a) by
requiring an operator to pay attorney's fees for work done before the
operator contested the claim. However 33 U.S.C. § 928 (a) only
specifies when an operator's liability for attorney's fees is triggered,
not the extent of that liability. The Longshore Act is ambiguous as to
the extent of liability, see Clinchfield Coal Co. v. Harris, 149 F.3d 307,
310-11 (4th Cir. 1998); Kemp v. Newport News Shipbuilding and Dry Dock
Co., 805 F.2d 1152, 1153 (4th Cir. 1986), and the DOL may resolve
ambiguity through regulation. Chevron, 467 U.S. at 842-43, 104 S.Ct.
Plaintiffs claim that, despite the Longshore Act's expectation of
claimants paying attorney's fees in some circumstances, the revised rules
relieve successful claimants from ever having to pay. However, the DOL
explains that § 725.367(a) does not rule out the possibility that
successful claimants might be responsible for paying their attorney's
fees. For example, a successful claimant would pay attorney's fees if he
or she retains an attorney to assist in the filing of a claim and the
operator then accepts the claimant's entitlement to benefits before
creating the adversarial relationship that triggers the fee-shifting
provision. The rules specifically acknowledge the potential for
claimant-paid fees. See 20 C.F.R. § 725.365.
Contrary to what plaintiffs suggest, the case law does not support
their claim. In Jackson v. Jewell Ridge Coal Corp., 21 Black Lung Rep.
1-27 (Ben.Rev.Bd. 1997)
(3-2 decision), the board held that an employer may be liable for fees
for legal services performed before it contests a claim. This case
overruled O'Quinn v. Pittston Co., 4 Black Lung Rep. 1-25 (Ben. Rev.Bd.
1982) (2-1 decision), finding that an employer is not liable for
attorney's fees for services performed before it contested the claim.
Additionally, the Fourth Circuit has held that an employer may be liable
for such fees. See Clinchfield Coal Co., 149 F.3d at 311. The cases cited
by plaintiffs are inapposite. See Bethenergy Mines v. Dir., OWCP,
854 F.2d 682, 634-38 (3d Cir. 1988); Dir., OWCP v. Poyner, 810 F.2d 99,
101-03 (6th Cir. 1987); Dir. OWCP v. Bivens, 757 F.2d 781 (6th Cir.
The DOL also did not violate the Longshore Act when it revised §
725.101(a)(6) to shift the cost of the pulmonary evaluation guaranteed
by 30 U.S.C. § 923 (b) to mine operators, and § 725.459(b) to
shift witness fees associated with cross-examination to mine operators
when a claimant is indigent. Plaintiffs point to § 28(d) of the
Longshore Act, 33 U.S.C. § 928 (d), by which an employer may be
assessed the "costs, fees and mileage of necessary witnesses attending
the hearing at the instance of the claimant" where an attorney's fee is
awarded against an employer. However, regardless of that provision, the
DOL is specifically authorized to shift the costs of developing medical
evidence to the operator, pursuant to § 7(e) of the Longshore Act (
33 U.S.C. § 907 (e)), incorporated into the BLBA by 30 U.S.C. § 932
(a). Section 7(e) provides, in pertinent part, that:
In the event that medical questions are raised in any
case, the Secretary shall have the power to cause the
employee to be examined by a physician, and to obtain
from such physician a report containing his estimate
of the employee's physical impairment. . . . The
Secretary shall have the power in [her] discretion to
charge the cost of examination . . . to the employer.
33 U.S.C. § 907 (e) (emphasis added). The DOL admits that it has
tailored § 7(e)'s provisions to fit the black lung benefits
context. However, it is within the DOL's authority to promulgate
regulations it deems appropriate to carry out the BLBA, 30 U.S.C. § 932