                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-2005

Wilce v. Director OWCP
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3998




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                                                  NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     ____________

                         No. 04-3998
                        ____________

                    CATHERINE WILCE,

                                Petitioner

                               v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
              United States Department of Labor,

                              Respondent
                        ____________

                On Petition for Review from an
              Order of the Benefits Review Board,
               United States Department of Labor
           (Benefits Review Board No. 04-0279 BLA)
                         ____________

           Submitted Under Third Circuit LAR 34.1(a)
                         July 1, 2005

     Before: NYGAARD, SMITH and FISHER, Circuit Judges.

                      (Filed: July 8, 2005)
                         ____________

                  OPINION OF THE COURT
                       ____________
FISHER, Circuit Judge.

       Petitioner Catherine Wilce seeks review of the decision and order of the

Department of Labor, Office of Workers’ Compensation Programs (“OWCP”), Benefits

Review Board (“Board”), dated September 30, 2004. We will deny the Petition for

Review, and focus principally herein on the rationale for our decision.

                                              I.

       Petitioner is the widow of a former miner who had been awarded black lung

benefits in 1990 and who died in 1991. Following her husband’s death, Petitioner filed a

survivor claim for benefits, which was finally denied on November 13, 1992, based on a

medical opinion that black lung disease did not cause her husband’s death. Almost four

years later, in July 1996, Petitioner filed a second “duplicate” claim, accompanied by an

amended death certificate and coroner letter purporting to add anthracosis as a significant

contributing factor of death. The duplicate claim was denied because black lung disease

was not the cause of death, and alternatively, because 20 C.F.R. § 725.309(d) dictated

denial of the duplicate claim. This regulation (“duplicate claims regulation” or

“regulation”) allows a miner to file a duplicate claim where he or she can establish a

material change in his or her condition, but bars a survivor from filing a duplicate claim

unless it is a request for modification that is based only upon an allegation of a mistake in




                                              2
a determination of fact, and meets the one-year time requirements of 20 C.F.R. § 725.310.

See 20 C.F.R. §§ 725.309(d), 725.310(a).1

        Petitioner’s duplicate claim stayed alive through repeated requests for modification

and related appeals, each of which resulted in a denial of her claim under the duplicate

claims regulation. In the context of a request for modification filed December 3, 2002,

Petitioner sought discovery from the Director, OWCP, as to how many black lung claims

were processed between 1974 to 2003, and how many were filed by men and in what

capacity (i.e., miner or surviving spouse) as compared to those filed by women and in

what capacity. The Director objected to the discovery as onerous and offered to stipulate

that:

        virtually all, if not all, duplicate survivor claims filed by surviving spouses
        of deceased miners (such as the duplicate survivor’s claim in the instant
        case) are filed by women rather than men, while virtually all, if not all,
        subsequent living miner’s claims filed by living miners are filed by men
        rather than women.

A. 53. Petitioner rejected the stipulation and filed a motion to compel discovery. The

Administrative Law Judge (ALJ) denied her motion, reasoning that the discovery sought

was irrelevant to the claim before him as he lacked the authority to rule on the

regulation’s constitutionality.2 The ALJ also denied the duplicate claim as barred by the

        1
        20 C.F.R. § 725.309(d) was amended in 2000. This case implicates the prior
version of the regulation. See 20 C.F.R. § 725.309(d) (1999).
        2
         The ALJ did, however, accept the proposed stipulation as part of the record in an
effort to aid Petitioner on appeal to a tribunal capable of entertaining the constitutional
challenge. A. 33.

                                               3
regulation. On appeal, the Board upheld the regulation against the equal protection

challenge. A. 5-6. It also affirmed denial of the discovery motion and of the duplicate

claim. A. 4, 6-7.

                                              II.

       We have jurisdiction pursuant to 30 U.S.C. § 932(a), Lombardy v. Director,

OWCP, 355 F.3d 211, 213 (3d Cir. 2004), and review Board decisions for errors of law

and adherence to the Board’s own standard of review. Id. We exercise plenary review

over matters of law, such as the constitutionality of a regulation. See id.

                                              III.

       Petitioner challenged the duplicate claims regulation as discriminatory against

women in violation of the equal protection guarantee applicable to the federal government

through the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497 (1954). The Board

applied rational basis review and concluded that “[b]ecause there can be no ‘change’ in a

deceased miner’s condition, ... it is rational to bar duplicate claims filed by a survivor.”

A.6. Petitioner assigns two errors to this analysis. First, she contends that “intermediate”

scrutiny as opposed to rational basis review applies to this gender-based classification and

second, that the regulation fails under either standard. We disagree.

       The duplicate claims regulation distinguishes between pending and denied claims

and between miner’s and survivor’s claims. Under certain circumstances and regardless

of gender, children, parents, brothers and sisters may be entitled to survivor benefits. See



                                               4
20 C.F.R. §§ 725.218-725.226. While it may be true that more women file survivor

claims, the regulation itself is facially neutral. As the Supreme Court has held, an

otherwise facially neutral classification is not subject to the heightened scrutiny

applicable to gender-based classifications merely because the classification has a

disparate impact on women. See Bray v. Alexandria Women’s Health Clinic, 506 U.S.

263 (1993); Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256 (1979). Thus,

the Board appropriately applied rational basis review.

       The equal protection guarantee directs that all similarly-situated persons be treated

alike. To survive rational basis review, a legislative classification need only be rationally

related to a legitimate government interest. Heller v. Doe, 509 U.S. 312 (1993). The

equal protection guarantee “is satisfied so long as there is a plausible policy reason for the

classification, the legislative facts on which the classification is apparently based

rationally may have been considered to be true by the governmental decisionmaker, and

the relationship of the classification to its goal is not so attenuated as to render the

distinction arbitrary or irrational.” Fitzgerald v. Racing Assoc. of Central Iowa, 539 U.S.

103, 107 (2003) (internal quotation omitted). The duplicate claims regulation readily

survives scrutiny under rational basis review.

       Miner claimants and survivor claimants simply are not similarly-situated.

“[P]neumoconiosis is a latent and progressive disease,” such that “a miner’s condition

may worsen over time.” Coleman v. Director, OWCP, 345 F.3d 861, 863 (11th Cir.



                                               5
2003). The regulation has been structured to reflect this reality and accordingly, it allows

a miner whose first claim for benefits has been denied to pursue a later claim provided the

miner can establish a change in the conditions of entitlement. A deceased miner’s

condition, however, “is not subject to change,” see id., and thus, as the Eleventh Circuit

explained in Coleman:

       Section 725.309(d) reflects the Department’s interest in administrative
       finality and res judicata. It encourages a survivor ... to marshal
       expeditiously all of the evidence and arguments in support of her claim that
       her husband’s death was due to pneumoconiosis. Such evidence may
       include medical evidence concerning the miner’s condition prior to, and at
       the time of, his death, medical opinion evidence regarding the miner’s cause
       of death and any relevant lay testimony. Assuming that the [Board] has
       finally denied a survivor’s initial claim, the regulation allows the surviving
       spouse, within one year after the final denial of benefits, to uncover or to
       generate new evidence in support of her claim, or to otherwise prove that
       the denial of benefits constituted a mistake in a determination of fact. If a
       survivor fails to act within the one-year period allowed for a modification
       petition, the [Board] must deny any later claim.

345 F.3d at 864. The government has a legitimate interest in both permitting miners to

file duplicate claims in the face of changed circumstances and in administrative finality

and the expeditious processing of survivor claims. The legislative classification furthers

these goals by allowing duplicate claims only when the relevant conditions of entitlement

are capable of change.3 The Board correctly upheld the regulation as constitutional.


       3
         The regulation does not, as Petitioner vehemently argues, permit miner’s claims
(as opposed to survivor’s claims) to proceed indefinitely. Under the pre-2000 version of
20 C.F.R. § 725.309(d), a miner’s duplicate claim would only be entertained where the
commissioner determined that there has been a “material change in conditions” or the
later claim is a request for modification and the requirements of § 725.310 are met. This

                                             6
                                              IV.

       Petitioner contends the Board committed reversible error in affirming the ALJ’s

denial of her motion to compel discovery. As the desired discovery related solely to her

constitutional challenge, which we hold the Board appropriately resolved against her, the

discovery is now unnecessary and the issue thus moot. We note, however, that the

Director’s stipulation gave Petitioner all the evidence she conceivably could have needed

to support the factual predicate of her claim – i.e., that survivor claims are typically filed

by women.

       Accordingly, we will deny the Petition for Review.




limitation on miner’s duplicate claim is made even more explicit in the amended version.
See e.g., 20 C.F.R. § 725.309(d)(2) (2005). Additionally, we do not understand the
Director to be arguing that the fiscal status of the Black Lung Disability Trust Fund
would somehow justify discrimination against survivor claimants or women. The
regulation discourages duplicate claims not based on a material change in the conditions
of entitlement; the government has a legitimate interest in avoiding such claims,
regardless of the Fund’s fiscal status.

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