                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-1553


EASTERN ASSOCIATED COAL COMPANY,

                Petitioner,

           v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,

                Respondent,

ROY M. VEST,

                Claimant.



On Petition for Review of an Order of the Benefits Review Board.
(11-0871-BLA)


Argued:   May 14, 2014                      Decided:   July 3, 2014


Before GREGORY and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Petition denied by unpublished per curiam opinion.


ARGUED:   Mark   Elliott  Solomons,   GREENBERG  TRAURIG,   LLP,
Washington, D.C., for Petitioner.    Sarah Marie Hurley, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent.
ON   BRIEF:   Laura  Metcoff  Klaus,   GREENBERG   TRAURIG  LLP,
Washington, D.C., for Petitioner.   M. Patricia Smith, Solicitor
of Labor, Rae Ellen James, Associate Solicitor, Gary K.
Stearman, Office of the Solicitor, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

                 Eastern        Associated          Coal     Company      (“Petitioner”)

petitions for review of the Benefits Review Board’s (“BRB” or

“Board”)         decision       and   order    affirming     the   administrative        law

judge’s (“ALJ”) grant of living miner benefits to its former

employee, Roy Michael Vest (“Claimant”), 1 under the Black Lung

Benefits Act (“BLBA”), 30 U.S.C. §§ 901–945.                           Petitioner argues

that       the    benefits       award   must       be   vacated   because       20   C.F.R.

§ 725.465(d), a regulation invoked by the Director of the Office

of Workers’ Compensation Programs (“Director”) in the underlying

proceedings, violates the Administrative Procedure Act (“APA”),

5 U.S.C. §§ 551-559, 701-706.                    Petitioner also contends that a

previously         adjudicated        and     unsuccessful     claim     for   survivor’s

benefits         filed     by    Claimant’s         widow,   Kimberly     Vest    McKinney

(“Mrs. Vest”), operates to collaterally estop the benefits award

in the instant case.




       1
       Claimant died on May 8, 2006. The Black Lung Disability
Trust Fund paid interim benefits pending final adjudication of
his claim, and our decision denying Petitioner’s appeal will
obligate Petitioner to reimburse that fund.       See 30 U.S.C.
§ 934(b); 20 § C.F.R. 725.603(a).        This appeal therefore
presents a justiciable case or controversy regardless of the
interest (if any) retained by Claimant’s beneficiaries in the
benefits award.   See Old Ben Coal Co. v. Dir., OWCP, 292 F.3d
533, 538 n.4 (7th Cir. 2002); see also Dir., OWCP v. Nat’l Mines
Corp., 554 F.2d 1267, 1271-72 (4th Cir. 1977).



                                                3
           As   explained      below,    we    disagree         with    Petitioner’s

argument on both fronts.          First, we conclude that there is no

conflict between the APA and 20 C.F.R. § 725.465(d).                         Second, we

conclude that Claimant is not precluded from relitigating issues

decided in his widow’s claim because, as a non-party, he did not

have a full and fair opportunity to litigate the issues decided

in that proceeding.      We therefore deny the petition for review.

                                        I.

                                        A.

                             Statutory Background

           Congress enacted the BLBA and created the Black Lung

Disability    Trust   Fund    (“Trust       Fund”   or   “Fund”)        in    order    to

provide benefits to coal miners disabled by pneumoconiosis 2 and

the surviving dependents of miners who died of the disease.                           See

30 U.S.C. § 901(a); 26 U.S.C. § 9501(d)(1).                      The Secretary of

Labor    (“Secretary”)       is   vested       with      “broad        authority       to

implement” this statutory mandate, Elm Grove Coal Co. v. Dir.,

OWCP, 480 F.3d 278, 293 (4th Cir. 2007), by promulgating “such

regulations     as    [he]    deems     appropriate        to     carry       out     the

provisions” of the BLBA, 30 U.S.C. § 936.                 The Director, as the


     2
       “Pneumoconiosis,” or black lung disease, is a “chronic
dust disease of the lung and its sequelae” caused by inhaling
coal dust into the lungs over a long period of time. 30 U.S.C.
§ 902(b).



                                        4
Secretary’s designee, is charged with administering the BLBA and

is    a   party    to    all   benefits     adjudications.              See    30    U.S.C.

§ 932(k); 20 C.F.R. § 725.482(b).

                  Both miners and their survivors may seek benefits

under the BLBA by filing claims with the district director in

the       Department      of      Labor’s       (“DOL”)    Office         of       Workers’

Compensation       Programs       (“OWCP”).        See    20   C.F.R.         §§   725.301-

725.311.      After investigating the claim, the district director

determines whether the claimant is eligible for benefits and

which of the miner’s former employers, if any, will be held

responsible.        See id. §§ 725.401-725.423, 725.490-725.497.                        Any

party may appeal the district director’s determination to the

Office of Administrative Law Judges and request a formal hearing

before an ALJ.           See id. §§ 725.450-725.483.                   A party who is

“adversely        affected     or    aggrieved”      by    the        ALJ’s    subsequent

decision may, in turn, appeal that decision to the BRB.                                Id.

§§ 802.201(a),          725.481;     see    also     33    U.S.C.        §     921(b)(3).

Finally,     “[a]ny      person     adversely     affected       or    aggrieved      by   a

final order of [the BRB]” may seek judicial review in the Court

of Appeals for the circuit in which the injury occurred.                                   33

U.S.C. § 921(c); 20 C.F.R. § 725.482.

              The Trust Fund, which is financed by an excise tax on

coal production, is responsible for the payment of black lung

benefits in certain circumstances, such as when “there is no

                                            5
operator who is liable” for a benefits award.                           See 26 U.S.C.

§§ 9501(d), 4121.         In cases implicating the Fund, the Director

is “charged with a fiduciary duty to protect” the Fund’s assets,

Dir., OWCP v. Hileman, 897 F.2d 1277, 1281 n.2 (4th Cir. 1990),

and operates as the Fund’s “trustee,” Boggs v. Falcon Coal Co.,

17 Black Lung Rep. 1-62, 1-65 (Ben. Rev. Bd. 1992) (internal

quotation marks omitted); see also 26 U.S.C. § 9501(a)(2) (the

Secretary is a “trustee[] of the [Trust Fund]”).                        Otherwise, as

the   BRB   has    observed,      “the    Trust       Fund    would     be    completely

unprotected.”          Boggs,   17     Black    Lung    Rep.    at     1-65    (internal

quotation marks omitted); see also Dir., OWCP v. Newport News

Shipbuilding & Dry Dock Co., 676 F.2d 110, 114 (4th Cir. 1982)

(“[O]nly the Director has any real interest in protecting the

[Trust Fund] against unjustified payments.”).

            After a claim is filed, the Trust Fund is required to

make interim payments to a claimant pending final resolution of

his   claim       if    the     district       director        makes     an    “initial

determination      of     eligibility”         and    the    responsible           operator

“fails or refuses to commence . . . payment” within thirty days.

20 C.F.R. §§ 725.522, 725.420; see also 26 U.S.C. § 9501(d)(1).

The Trust Fund is automatically subrogated to the rights of a

claimant when it makes these payments, and the Director “may, as

appropriate,      exercise      such     subrogation         rights.”         20    C.F.R.

§§ 725.602(b),         725.482(b).       Upon        final   adjudication           of   the

                                           6
claim,     the    Director       may    seek       reimbursement    of    the   interim

payments from the responsible operator, see 30 U.S.C. § 934(b),

or,   if   the     claim    is    denied,      from    the    claimant     himself   for

“overpayments,”          20 C.F.R. § 725.522(b).             The Director thus “has

a direct financial interest in the outcome in cases . . . in

which the Trust Fund has paid interim benefits.”                             Boggs, 17

Black Lung Rep. at 1-66.

                                            B.

                                  Procedural History

             Claimant, a retired coal miner, filed an application

for living miner’s benefits on May 16, 2001.                             See 30 U.S.C.

§ 922(a)(1) (authorizing living miner’s benefits for coal miners

totally disabled due to pneumoconiosis). 3                    On December 31, 2002,

the   district         director    determined         Claimant     was   eligible    for

benefits     and       named      Petitioner,        one     of   Claimant’s    former

employers,       the    operator       responsible     for    payment.      Petitioner

contested        the    district       director’s      determination,      refused    to

commence benefit payments, and requested a formal hearing before


      3
       Because Claimant’s claim was filed after January 19, 2001,
it is governed by 20 C.F.R. Parts 718 and 725, see 20 C.F.R.
§§ 718.2, 725.2, and is not affected by the Patient Protection
and Affordable Care Act’s amendments to the BLBA, which apply
only to claims filed after January 1, 2005, that are pending on
or after March 23, 2010, see Patient Protection and Affordable
Care Act, Pub. L. No. 111–148, § 1556, 124 Stat. 119, 260
(2010).



                                               7
an ALJ.            The Trust Fund, consequently, assumed responsibility

for         paying       interim        benefits        to     Claimant          pending    final

adjudication of his claim.                       See 26 U.S.C. § 9501(d)(1).                    His

claim        was    thus    “in    pay    status      from      [the   Trust       Fund]   as    of

February 1, 2001.”             J.A. 86. 4

                   On    January    12,    2005,        ALJ     Edward      T.    Miller    (“ALJ

Miller”) conducted a formal hearing on Claimant’s application.

While awaiting a decision, Claimant died on May 8, 2006, at the

age of 52.               Two days later, ALJ Miller issued a decision and

order awarding Claimant benefits and holding Petitioner liable

as the responsible operator.                     Following Petitioner’s appeal, the

BRB affirmed in part, vacated in part, and remanded on May 23,

2007.         The BRB reasoned, inter alia, that ALJ Miller had failed

to provide an adequate foundation for his responsible operator

determination and two of his evidentiary rulings, which tainted

his     ultimate          conclusions       as     to    Claimant’s         eligibility         for

benefits           and   Petitioner’s       liability          for    the   same.       The     BRB

remanded the case with instructions to reconsider the inadequate

rulings and, concomitantly, reweigh the relevant evidence.

                   Following      her    husband’s           death,    Mrs.      Vest   filed     a

separate claim for survivor’s benefits on May 31, 2006.                                    See 30


        4
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                                  8
U.S.C. § 922(a)(2) (providing for survivor’s benefits “[i]n the

case of death of a miner due to pneumoconiosis”). 5                            On January

10, 2007, the district director determined that Mrs. Vest was

ineligible for benefits, reasoning that Claimant’s death was not

caused      by    pneumoconiosis        and,     as    such,    would   not   support       an

award       of    survivor’s         benefits       under    the   BLBA.       Mrs.        Vest

contested this determination and requested a hearing before an

ALJ.        The following year, on May 6, 2008, Administrative Law

Judge Jeffrey Tureck (“ALJ Tureck”) conducted a formal hearing

on her claim.

                 Meanwhile,      Claimant’s           remanded     claim      for     living

miner’s benefits remained largely dormant.                          After more than a

year of inactivity, ALJ Miller issued an order on October 3,

2008,       directing     the    parties        to    designate    certain     pieces       of

evidence         in    order    to    facilitate       his     final    decision      as    to

Claimant’s claim.              Claimant’s counsel responded with a letter

advising         ALJ   Miller    that     Claimant       was     deceased,    he    had     no

authority to act on behalf of Claimant’s estate, and Claimant’s

widow had remarried and was no longer interested in pursuing his

claim.       Given this information, ALJ Miller issued a show cause


        5
       Because Mrs. Vest’s claim was filed after January 19,
2001, and was not pending as of March 23, 2010, it is governed
by the same version of the BLBA and regulations that govern
Claimant’s claim.



                                                9
order soliciting input “as to how, in [the parties’] respective

interests, this tribunal should proceed with the disposition of

this claim.”        J.A. 87.

                 In his response to the show cause order, the Director

urged that the claim be resolved on its merits, as the Trust

Fund       had   made    interim    payments     to    Claimant    and   “[a]   final

adjudication        on    the    merits    of   [his]    claim    is   necessary   to

determine         the    Director’s    right     to     reimbursement    for    those

payments[,] from the employer or [Claimant’s] estate.”                     J.A. 84.

The Director pointed to 20 C.F.R. § 725.465(d) 6 in support of the

proposition        that,    in     light   of   the    Trust   Fund’s    payment   of

interim benefits, the case could not be dismissed without the

Director’s consent.              Id. at 85.           Petitioner did not file a

response.

                 On November 3, 2008, ALJ Tureck issued a decision and

order       denying      Mrs.    Vest’s    claim      for   survivor’s    benefits,

concluding that she had failed to establish a necessary element

of her claim, i.e., that Claimant suffered from pneumoconiosis.
       6
           This regulation provides:

                 No claim shall be dismissed in a case with
                 respect to which payments prior to a final
                 adjudication have been made to the claimant
                 in accordance with [20 C.F.R.] § 725.522,
                 except upon the motion or written agreement
                 of the Director.

20 C.F.R. § 725.465(d).



                                           10
See   J.A.   82    (“Since    [Claimant]        did   not   have   pneumoconiosis,

[Mrs. Vest’s] black lung survivor’s claim must be denied.”). 7

Inasmuch as neither Mrs. Vest nor the Director filed an appeal

or otherwise contested ALJ Tureck’s decision, it became final on

December 3, 2008.       See 33 U.S.C. § 921(a) (“A compensation order

. . . shall become final at the expiration of the thirtieth day”

after it is “filed in the office of the deputy commissioner.”).

              On January 27, 2009, ALJ Miller issued his second

decision and order awarding living miner’s benefits to Claimant

under the BLBA.       In addition to holding Petitioner liable as the

responsible       operator,   ALJ    Miller      determined    the   evidence   was

sufficient    to    establish       that   Claimant     suffered     from   totally


      7
       Although the underlying merit of Mrs. Vest’s benefits
determination is not at issue in this appeal, we are compelled
to note that ALJ Tureck found “the [negative] CT scan
interpretations by Dr. [Paul] Wheeler,” an Associate Professor
of Radiology at the Johns Hopkins Medical institutions, to be
“most probative” in concluding that Claimant did not suffer from
pneumoconiosis.    J.A. 82.    Dr. Wheeler’s opinions have since
been challenged in a joint investigation by ABC News and the
Center for Public Integrity (“CPI”), which found that he had
never once, in reading more than 3,400 x-rays over the course of
thirteen   years,    interpreted   an   x-ray   as  positive   for
pneumoconiosis.   The DOL recently issued a bulletin instructing
its district directors to “(1) take notice of this reporting and
(2)   not   credit     Dr.   Wheeler’s   negative   readings   for
pneumoconiosis in the absence of persuasive evidence either
challenging   the    CPI   and   ABC   conclusions  or   otherwise
rehabilitating Dr. Wheeler’s readings.”        Div. of Coal Mine
Workers’ Comp., U.S. Dep’t of Labor, BLBA Bulletin No. 14-09
(June 2, 2014), available at http://www.dol.gov/owcp/dcmwc/
blba/indexes/BL14.09OCR.pdf.



                                           11
disabling    clinical      and     legal      pneumoconiosis       as    well   as

complicated pneumoconiosis.           Following this decision, Petitioner

filed a motion to dismiss, which ALJ Miller denied, and a motion

for   reconsideration,      which       ALJ    William     S.    Colwell      (“ALJ

Colwell”) denied.       Petitioner timely appealed both orders.

            The   BRB   affirmed      the    benefits    award   and    the   order

denying   reconsideration        on   September    27,     2012.        Petitioner

unsuccessfully sought reconsideration before the BRB, and this

petition for review followed.           We have jurisdiction pursuant to

33 U.S.C. § 921(c). 8


      8
        Prior to oral argument in this case, we directed the
parties    to   be    prepared to   address   the  jurisdictional
implications of the petition for review to this court, in which
Petitioner sought “review of the order of the [BRB] . . . issued
on February 25, 2013, affirming the decision and order of the
[BRB] dated September 27, 2012.” J.A. 1. Because the February
25, 2013 order referenced in the petition was a summary order
denying Petitioner’s motion for reconsideration, over which we
do not have jurisdiction, see Betty B Coal Co. v. Dir., OWCP,
194 F.3d 491, 496 (4th Cir. 1999), we questioned whether
Petitioner had adequately preserved the BRB’s September 27, 2012
final order for our review. During oral argument, however, the
Director     conceded    that,  despite   Petitioner’s   inartful
presentation, its intent to appeal the final order was clear.
See MLC Automotive, LLC v. Town of Southern Pines, 532 F.3d 269,
279 (4th Cir. 2008) (noting parenthetically that “‘a party may
demonstrate its intention to appeal from one order despite
referring only to a different order in its petition for review
if the petitioner’s intent can be fairly inferred from the
petition or documents filed more or less contemporaneously with
it,’” and that “‘without a showing of prejudice by the appellee,
technical errors in the notice of appeal are considered
harmless’” (quoting Indep. Petrol. Ass’n of Am. v. Babbitt, 235
F.3d 588, 593 (D.C. Cir. 2001))).



                                        12
                                          II.

            We review the BRB’s conclusions of law de novo. See

Collins v. Pond Creek Min. Co., --- F.3d ----, 2014 WL 1711718,

at *3 (4th Cir. 2014).              In so doing, “our review is confined

exclusively     to    the     grounds     actually    invoked    by    the       [BRB].”

Island Creek Coal Co. v. Henline, 456 F.3d 421, 426 (4th Cir.

2006) (internal quotation marks omitted).

                                          III.

           Petitioner raises two arguments on appeal.                       First, it

contends   20        C.F.R.     §      725.465(d)     violates        the        APA    by

impermissibly        curtailing     the    ALJ’s     discretion.           Second,      it

contends the BRB erred in failing to give preclusive effect to

ALJ Tureck’s finding that Claimant did not have pneumoconiosis.

We address each argument in turn.

                                           A.

           We   begin        with   Petitioner’s      challenge       to    20      C.F.R.

§ 725.465(d).        Section 725.465 is titled “dismissals for cause”

and   permits    an    ALJ     to   dismiss      a   claim   prior     to       a    final

adjudication of eligibility when (1) a claimant fails to attend

a hearing without good cause, (2) a claimant fails to comply

with a lawful order, or (3) there has been a prior lawful final

adjudication     of      a     claim      or     defense.       See        20       C.F.R.

§ 725.465(a)(1)-(3).          The specific subsection at issue here, 20

C.F.R. § 725.465(d), prohibits an ALJ from dismissing a claim

                                           13
that otherwise meets these eligibility requirements “in a case

with respect to which payments prior to a final adjudication

have been made to the claimant in accordance with [20 C.F.R.]

§ 725.522” –- i.e., those cases in which the Trust Fund has paid

interim benefits pending final adjudication -- “except upon the

motion or written agreement of the Director.”                Id. § 725.465(d).

In   terms   of   Claimant’s     case,   as   ALJ   Miller   observed,   “[t]he

Director invoked § 725.465(d)” in response to the show cause

order, “preclud[ing] dismissal without the Director’s consent.”

J.A. 53. 9

             Petitioner contends 20 C.F.R. § 725.465(d) is invalid

on   its   face   because   it   interferes     with   an    ALJ’s   independent

decision-making authority under the APA, specifically 5 U.S.C.

§§ 554(d)(1), 554(d)(2), and 556(b). 10             In Petitioner’s view, the


      9
       We decline the Director’s invitation to find Petitioner’s
challenge to this regulation waived.       See Toler v. Eastern
Assoc. Coal Corp., 43 F.3d 109, 113 (4th Cir. 1995) (“[W]aiver
is a nonjurisdictional doctrine that calls for flexible
application.” (citation omitted)).   Although Petitioner did not
articulate its argument below in terms of the APA, it did
challenge the Director’s standing, premised upon 20 C.F.R.
§ 725.465(d), to pursue the case to a merits determination in
Claimant’s absence.   See id. (rejecting waiver argument where
petitioner asserted the same fundamental claim before the agency
and district court, but used different arguments in each forum
to press that claim).
      10
         Section 422(a) of the BLBA, 30 U.S.C. § 932(a),
incorporates Section 19(d) of the Longshore and Harbor Workers’
Compensation Act (“LHWCA”), 33 U.S.C. § 919(d), which in turn
requires that hearings be conducted in accordance with the APA,
(Continued)
                                         14
regulation      “impermissibly         cabins       an    ALJ’s      discretion       by

requiring the Director’s consent in order to dismiss a claim.”

Appellant’s Br. 9.         This, Petitioner claims, is in violation of

the provisions of the APA that require an ALJ to make decisions

in an “impartial manner,” 5 U.S.C. § 556(b), and prohibit an ALJ

from “consult[ing] a person or party on a fact in issue . . .

[without]       notice      and    opportunity           for   all     parties        to

participate,”     id.     § 554(d)(1),        or   “be[ing]    responsible      to    or

subject to the supervision or direction of an employee or agent

engaged    in    the     performance     of    investigative      or    prosecuting

functions for an agency,” id. § 554(d)(2).

            Petitioner’s argument is meritless.                 As we have noted,

the Director is a party to all benefits proceedings under the

BLBA,     responsible      for    both    administering        the     statute       and

protecting the Trust Fund.             In cases where, as here, the Trust

Fund    makes    interim     benefit     payments,       the   Director    is     also

responsible for seeking reimbursement from either the employer

or the claimant upon final adjudication of the claim.                        See 30



20 C.F.R. § 725.452(a); see also Dir., OWCP v. Greenwich
Collieries, 512 U.S. 267, 271 (1994) (“The BLBA . . .
incorporates the APA (by incorporating parts of the LHWCA), but
it does so ‘except as otherwise provided . . . by regulations of
the Secretary.’” (quoting 30 U.S.C. § 932(a))); Bethlehem Mines
Corp. v. Henderson, 939 F.2d 143, 148 (4th Cir. 1991) (“The
requirements of the APA are . . . applicable to [DOL] black lung
adjudications[.]”).



                                         15
U.S.C.      § 934(b)(4)(B)      (requiring   the   operator’s    liability     be

“finally determined” before the reimbursement obligation may be

enforced);      20     C.F.R.   § 725.522(c)     (requiring    the   claimant’s

eligibility       be     “determined”    before      overpayments      may    be

recovered).      As the BRB stated more than twenty years ago, in

rejecting an identical challenge to the same regulation:

              The Director . . . has a direct financial
              interest in the outcome in cases arising
              under the [BLBA] in which the Trust Fund has
              paid interim benefits or medical benefits
              pending     a    final     determination   of
              eligibility. Therefore, when the Trust Fund
              has commenced benefit payments to claimant
              prior    to   a    final    determination  of
              entitlement, the Director, as trustee of the
              Trust Fund, must be afforded the opportunity
              to recoup Trust Fund expenditures in the
              event   that   the   award   of   benefits is
              ultimately reversed on final adjudication.
              It follows that the Director’s consent must
              be obtained before a case in which the Trust
              Fund has paid interim or medical benefits
              may be dismissed.

Boggs v. Falcon Coal Co., 17 Black Lung Rep. 1-62, 1-66 (Ben.

Rev.    Bd.    1992)     (emphasis   supplied)     (internal    citations    and

footnotes      omitted).        Petitioner’s   efforts   to    discredit     this

opinion notwithstanding, 11 it retains its persuasive force.


       11
        Petitioner cites to Greenwich Collieries and Dir., OWCP
v. Newport News Shipbuilding & Dry Dock Co. (“Harcum”), 514 U.S.
122 (1995), for the proposition that the Supreme Court has,
post-Boggs, rejected the BRB’s “approach.”   Appellant’s Br. 10.
These two cases are inapposite.    In Greenwich Collieries, for
example, the Director took the position that an existing BLBA
regulation permitted it to deviate from an APA standard. See 30
(Continued)
                                        16
            Further,      we    see    no    conflict       between       the   challenged

regulation       and   the     cited    provisions          of    the    APA.      Section

725.465(d),       by    its     plain       language,        cannot       reasonably       be

interpreted to permit the Director to “supervis[e] or direct[]”

an   ALJ   in    the   performance      of    his        duties    or    “participate      or

advise” in an ALJ’s decision.                     5 U.S.C. § 554(d)(2).                To the

contrary, as the Director points out, the regulation does not

dictate    any    particular     result,          only    that    the    DOL    make    “some

final determination on the merits when . . . the Trust Fund has

paid   interim         benefits,”       Appellee’s          Br.     30     (emphasis       in

original),        so    that     the        Director         may        thereafter       seek

reimbursement of the Fund from the appropriate party.                                  In so

doing, the regulation does not implicate an ALJ’s impartiality

under 5 U.S.C. § 556(b), but “simply protects the interests of

the Trust Fund, and ensures that the Director, as a party to the

litigation, receives a complete adjudication of his interests,”

65 Fed. Reg. 79920-01, 80005 (December 20, 2000) (discussing a



U.S.C. § 932(a) (The BLBA incorporates the APA “except as
otherwise provided . . . by regulations of the Secretary.”
(emphasis supplied)). The Supreme Court rejected the Director’s
argument, concluding that a regulation must unambiguously reject
an APA standard in order to preclude its incorporation into the
BLBA under 30 U.S.C. § 932(a).    See Greenwich Collieries, 512
U.S. at 271.     Harcum involved a question of the Director’s
standing to appeal an award of disability benefits under the
LHWCA and did not touch on the APA provisions that are relevant
to this case. See Harcum, 514 U.S. at 132-36.



                                             17
similar regulation, 20 C.F.R. § 725.465(b), that prohibits the

ALJ from dismissing the operator designated as the responsible

operator without the Director’s consent).

              The Secretary is statutorily authorized to promulgate

regulations “appropriate to carry out the provisions” of the

BLBA     in   accordance    with    the      notice-and-comment        rule-making

provisions of the APA.         30 U.S.C. § 936(a); see also Smiley v.

Citibank (South Dakota), N.A., 517 U.S. 735, 741 (1996) (APA

notice    and    comment    “designed     to    assure   due    deliberation”).

Section 725.465(d) originated from just such an exercise of this

“broad authority.”         Elm Grove Coal Co. v. Dir., OWCP, 480 F.3d

278, 293 (4th Cir. 2007).          We are therefore bound to uphold this

regulation      under   Chevron,    U.S.A.,      Inc.    v.    Nat’l   Res.   Def.

Council, 467 U.S. 837, 842–43 (1984), unless it is “procedurally

defective, arbitrary or capricious in substance, or manifestly

contrary to the statute.”          United States v. Mead Corp., 533 U.S.

218, 227 (2001) (citing 5 U.S.C. §§ 706(2)(A), (D))).                     We find

no such flaw here.          The Director, as trustee of the Fund and

administrator of the BLBA, is a real party in interest in the

category of claims exempted from summary dismissal by 20 C.F.R.

§ 725.465(d), and the Secretary has, consistent with the APA,

determined that the Director should be entitled to fully pursue

his interests in order to maintain the Fund’s fiscal integrity



                                        18
and    promote       the    BLBA’s    compensatory          purpose.         We    will    not

second-guess that decision.

                                               B.

               We turn next to Petitioner’s contention that the BRB

erred in failing to accord preclusive effect to the finding,

made in ALJ Tureck’s November 3, 2008 decision in Mrs. Vest’s

survivor’s         claim,    that    Claimant       did   not   have       pneumoconiosis.

The Director counters that Petitioner waived this defense by not

raising       it    until     after     ALJ      Miller      had     fully    adjudicated

Claimant’s claim, or, in the alternative, that Petitioner cannot

establish the fifth element of the defense, namely, “that the

party against whom collateral estoppel is asserted ‘had a full

and    fair    opportunity       to    litigate       the    issue     in    the   previous

forum.’”       Collins v. Pond Creek Mining Co., 468 F.3d 213, 217

(4th    Cir.       2006)    (“Collins      I”)      (quoting    Sedlack       v.   Braswell

Servs. Group, Inc., 134 F.3d 219, 224 (4th Cir. 1998)).

                                               1.

               The doctrine of collateral estoppel, also termed issue

preclusion, bars “successive litigation of an issue of fact or

law    actually          litigated      and      resolved       in     a     valid    court

determination essential to the prior judgment, even if the issue

recurs    in       the     context    of   a     different      claim.”           Taylor   v.

Sturgell, 553 U.S. 880, 891 (2008) (internal quotation marks

omitted); see also In re Microsoft Corp. Antitrust Litig., 355

                                               19
F.3d 322, 326 (4th Cir. 2004).          We have held that findings of

fact    in   administrative   adjudications   of   black   lung   benefits

claims “are to be accorded the same collateral estoppel effect

they would receive if made by a court.”        Collins I, 468 F.3d at

217 (citing Jones v. SEC, 115 F.3d 1173, 1178 (4th Cir. 1997)).

We require the party invoking collateral estoppel to establish

the following elements:

             (1) that “the issue sought to be precluded
             is identical to one previously litigated”
             (“element one”); (2) that the issue was
             actually determined in the prior proceeding
             (“element   two”);   (3)   that  the   issue’s
             determination was “a critical and necessary
             part   of   the    decision   in   the   prior
             proceeding” (“element three”); (4) that the
             prior judgment is final and valid (“element
             four”); and (5) that the party against whom
             collateral estoppel is asserted “had a full
             and fair opportunity to litigate the issue
             in the previous forum” (“element five”).

Collins I, 468 F.3d at 217 (quoting Sedlack, 134 F.3d at 224).

             Here, the BRB rested its decision on the fifth element

of this test, concluding that Claimant was “the party against

whom the doctrine is being asserted” and did not have a “full

and fair” opportunity to litigate the issue of pneumoconiosis in

Mrs. Vest’s case because he was deceased.           J.A. 13-14.      Under

the Chenery doctrine, 12 then, our review of the BRB’s decision to


       12
        The Chenery doctrine provides, “an administrative order
cannot be upheld unless the grounds upon which the agency acted
in exercising its powers were those upon which its action can be
(Continued)
                                   20
reject Petitioner’s collateral estoppel defense is limited to

this element.       See Island Creek Coal Co. v. Henline, 456 F.3d

421, 426 (4th Cir. 2006) (“Affirming the Board’s [decision] on

an alternative ground not actually relied upon by the Board is

prohibited under the Chenery doctrine.”).                   We thus decline to

address the Director’s alternative waiver argument and proceed

to the merits of Petitioner’s claim.                See Grigg v. Dir., OWCP,

28 F.3d 416, 418 (4th Cir. 1994) (noting that we are “unable to

affirm” on a ground not relied on by the BRB, “even if we were

so inclined.” (citations omitted)).

                                        2.

              In order to evaluate whether “the party against whom

collateral estoppel is asserted” was adequately represented in

the   prior    proceeding,    Collins    I,   468    F.3d    at    217    (citation

omitted), we must first identify the operative “party.”                     On this

front,   it    is   clear    that   Petitioner       directs      its    collateral

estoppel      argument   against    Claimant’s       living       miner’s    claim,

regardless of its current ownership, and that the Director’s




sustained.”  SEC v. Chenery Corp., 318 U.S. 80, 95 (1943).    We
have held that this doctrine applies to black lung claims. See
Henline, 456 F.3d at 426 (“[I]n reviewing an order of the Board
directing payment of black lung benefits, our review is confined
exclusively to the grounds actually invoked by the Board.”
(citing Gulf & W. Indus. v. Ling, 176 F.3d 226 (4th Cir.
1999))).



                                        21
interest      in    pursuing     this    case      is   wholly      derivative      of,     and

limited by, Claimant’s eligibility for the same.                             We therefore

agree     with     the   BRB    that    Claimant        is   the    appropriate       “party”

against       whom       to    measure       Petitioner’s          collateral       estoppel

defense. 13

              It is undisputed that Claimant was deceased when Mrs.

Vest brought her survivor’s action and, as such, was not a party

to her claim.         As observed by the Supreme Court, “[a] person who

was not a party to a suit generally has not had a ‘full and fair

opportunity to litigate’ the claims and issues settled in that

suit,”     such      that      “[t]he     application          of    claim      and    issue

preclusion to nonparties . . . runs up against the ‘deep-rooted

historic      tradition        that    everyone     should     have    his    own     day   in

court.’”           Taylor,     553    U.S.    at    892-93     (quoting       Richards      v.

Jefferson Cnty., Ala., 517 U.S. 793, 798 (1996)).                            Consequently,

“collateral estoppel ordinarily applies only against persons who

     13
        The Director, although a party to Mrs. Vest’s claim, was
not entitled to appeal ALJ Tureck’s decision to the BRB because
he was not “aggrieved” by the denial of benefits.      20 C.F.R.
§ 802.201(a). As such, even if we were to view the Director as
the “party against whom collateral estoppel is asserted” for the
purposes of this appeal, it is evident that he did not have a
“full and fair opportunity to litigate the issue in the previous
forum” as a matter of law. Collins I, 468 F.3d at 217 (internal
quotation marks omitted); see also 62 Fed. Reg. 3338-01, 3353
(Jan. 22, 1997) (noting that a party in a black lung proceeding
may not be bound by an ALJ’s prior finding if the party was not
entitled to appeal the decision in which that finding was made
to the BRB).



                                              22
were parties to the prior suit.”        Martin v. Am. Bancorp. Ret.

Plan, 407 F.3d 643, 654 n.18 (4th Cir. 2005) (internal quotation

marks omitted); see also Taylor, 553 U.S. at 893.             Like other

rules, however, “the rule against nonparty preclusion is subject

to exceptions.”   Taylor, 553 U.S. at 893.

          In Taylor, the Supreme Court enumerated six categories

of historically-accepted exceptions where preclusion principles

may be applied to a person who was not a party to the first

proceeding.       The   Eleventh   Circuit     has     summarized     these

exceptions as follows:

          A court may apply nonparty preclusion if:
          (1) the nonparty agreed to be bound by the
          litigation of others; (2) a substantive
          legal   relationship    existed   between   the
          person to be bound and a party to the
          judgment; (3) the nonparty was adequately
          represented by someone who was a party to
          the suit; (4) the nonparty assumed control
          over the litigation in which the judgment
          was   issued;   (5)  a    party  attempted   to
          relitigate issues through a proxy; or (6) a
          statutory    scheme    foreclosed    successive
          litigation by nonlitigants.

Griswold v. Cnty. of Hillsborough, 598 F.3d 1289, 1292 (11th

Cir. 2010) (citing Taylor, 553 U.S. at 893-95).              The Supreme

Court   has   cautioned,   however,     that   these     categories    are




                                   23
“discrete    exceptions    that    apply    in   limited     circumstances.”

Taylor, 553 U.S. at 898 (internal quotation marks omitted). 14

            Petitioner neither cites Taylor nor explicitly argues

that this case fits any of the recognized exceptions.              It does,

however, argue that issue preclusion is appropriate here because

Claimant    and   Mrs.   Vest   were   in   “a   fiduciary   relationship.”

Appellant’s Br. 20 (citing Sea-Land Servs. v. Gaudet, 414 U.S.




     14
        Notably, nonmutual collateral estoppel may be invoked
either offensively, by a plaintiff who “seeks to foreclose the
defendant from litigating an issue the defendant has previously
litigated unsuccessfully in an action with another party,” or,
as in this case, defensively, by a defendant who seeks to bar a
plaintiff from relitigating an issue previously decided in its
favor in a suit involving another plaintiff.         See Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4 (1979). It is only
in the latter category –- where a party to a prior judgment
seeks to bind a nonparty to that judgment in a subsequent
proceeding -- that the specific, delineated categories set forth
in Taylor come into play. See Taylor, 553 U.S. at 892 (setting
forth explicit limitations on “[t]he application of claim and
issue preclusion to nonparties” of the proceeding sought to be
given preclusive effect (emphasis supplied)); see also Parklane,
439 U.S. at 327 (emphasizing the “obvious difference in position
between a party who has never litigated an issue and one who has
fully litigated and lost”).    The instant case is thus readily
distinguishable from our line of cases permitting the widow of
a black lung benefits recipient to use offensive nonmutual
collateral estoppel to establish pneumoconiosis in a survivor’s
action against her husband’s employer.    See, e.g.,   Collins I,
468 F.3d at 222-23.    In such claims, “[a]lthough the widow was
not a party to the miner’s claim, [the employer] itself was.
Treating [the employer] as bound by the outcome is a
straightforward   application   of   offensive  nonmutual   issue
preclusion.” Zeigler Coal Co. v. Dir., OWCP, 312 F.3d 332, 334
(7th Cir. 2002) (emphasis supplied) (citation omitted).



                                       24
573 (1974)).      In so doing, it effectively invokes Taylor’s third

category, which provides,

            “in   certain    limited   circumstances,”   a
            nonparty may be bound by a judgment because
            []he was “adequately represented by someone
            with the same interests who [wa]s a party”
            to the suit.      Richards, 517 U.S. at 798
            (internal     quotation     marks    omitted).
            Representative suits with preclusive effect
            on nonparties include . . . suits brought by
            trustees, guardians, and other fiduciaries,
            see [Gaudet, 414 U.S. at 593]. See also 1
            [Restatement (Second) of Judgments] § 41.

553 U.S. at 894-95.             The Supreme Court went on to stress that

“[a]   party’s    representation           of    a   nonparty     is   ‘adequate’          for

preclusion purposes only if, at a minimum: (1) the interests of

the    nonparty    and    h[is]       representative       are    aligned,         and     (2)

either     the    party        understood        herself     to   be        acting    in     a

representative      capacity          or   the    original    court     took       care     to

protect the interests of the nonparty.”                       Id. at 900 (emphasis

supplied) (internal citations omitted).

            Petitioner theorizes that Mrs. Vest was a fiduciary –-

or “adequate representative,” in the language of Taylor -- for

Claimant    because       of    the    “derivative”        nature      of    her     spousal

benefits claim.       Appellant’s Br. 20.              To the contrary, however,

Mrs. Vest survivor’s claim is a distinct cause of action that

she filed in her own name, on her own behalf, and for her own

award of benefits.         See, e.g., Charles v. Director, OWCP, 1 F.3d

251, 254 (4th Cir. 1993) (“[A] survivor’s benefit . . . is the

                                            25
personal claim of the dependent spouse, child, or parent.”).

Indeed, Mrs. Vest was not even entitled to file such a claim

prior to Claimant’s death.           See 30 U.S.C. § 901(a).

             The interests of a miner and his survivor with respect

to establishing the miner’s pneumoconiosis are plainly aligned.

But    the   record   is    devoid    of    any    indication     that   Mrs.   Vest

“understood herself to be acting in a representative capacity”

for    her   deceased      spouse    or    that    ALJ   Tureck   “took    care    to

protect” Claimant’s separate interests.                   Taylor, 553 U.S. at

900.    Without something more, Petitioner is not entitled to hold

a nonparty miner to the result reached in his widow’s claim.                       We

therefore     agree   with    the    BRB    that    Petitioner     has    failed   to

establish Claimant had a “full and fair” opportunity to litigate

the pneumoconiosis issue in Mrs. Vest’s case.                     Collins I, 468

F.3d at 217 (citation omitted).

                                          III.

             For the foregoing reasons, we deny the petition for

review.

                                                                  PETITION DENIED




                                           26
