                                                                                  RECOMMENDED FOR FULL-TEXT PUBLICATION
20 Island Creek Coal Co. v. Holdman, et al.              No. 97-4065                   Pursuant to Sixth Circuit Rule 206
                                                                               ELECTRONIC CITATION: 2000 FED App. 0037P (6th Cir.)
                                                                                           File Name: 00a0037p.06
(4th Cir. 1999); cf. Director, OWCP v. Hileman, 897 F.2d
1277, 1280-81 (4th Cir. 1990) (upholding the propriety of
Board’s dismissal of OWCP’s appeal after the Director failed
to guarantee the transmittal of the administrative record to the            UNITED STATES COURT OF APPEALS
Board). Thus, in light of the process due, Island Creek would                            FOR THE SIXTH CIRCUIT
suffer prejudice were we to affirm its designation as a                                    _________________
“responsible operator.” “If there has been no fair day in court,
the reliability of the result is irrelevant, because a fair day in
                                                                                                         ;
court is how we assure the reliability of results.” Lane
                                                                                                          
Hollow Coal Co., 137 F.3d at 808. In the absence of a                       ISLAND CREEK COAL
                                                                                                          
responsible operator, the Black      Lung Disability Trust Fund             COMPANY,
                                                                                                          
will pay Holdman’s benefits.5                                                               Petitioner,
                                                                                                          
                                                                                                                  No. 97-4065
                          IV. Conclusion
                                                                                                          
                                                                                      v.                   >
  The judgment of the Benefits Review Board is                                                            
REVERSED, and the matter is REMANDED for                                                                  
                                                                                                          
                                                                            ARTHUR W. HOLDMAN,
reinstatement of the October 7, 1994 order of ALJ Gilday.
                                                                                                          
                                                                            (Deceased); DIRECTOR,
Our disposition of the matter renders MOOT the Board’s
                                                                                                          
holding that Island Creek may not introduce new medical                     OFFICE OF WORKERS’
                                                                                                          
evidence in future remands. See supra at 12-14.                             COMPENSATION PROGRAMS,
                                                                            UNITED STATES DEPARTMENT 
                                                                                                          
                                                                                            Respondents. 
                                                                            OF LABOR,

                                                                                                          
                                                                                                         1

                                                                                      On Petition for Review of an Order
                                                                                        of the Benefits Review Board.
    5                                                                                         No. 95-0578 BLA
       The Federal Respondent bears the blame for the past fourteen years
of litigation in this matter. A record entrusted by law to OWCP has                      Argued: December 11, 1998
vanished. Cf. Hileman, 897 F.2d at 1280-81. The Director ignored
repeated requests of the Benefits Review Board to reconstruct the record.
When ALJ Gilday attempted to resolve matters, he reported that the                   Decided and Filed: January 27, 2000
Director did not attend or send counsel to the hearing scheduled on
September 13, 1994, and that his response to the show cause order did not
address some of the material issues. Finally, in its correspondence to
Island Creek following the October 30, 1995 Board order, OWCP
exhibited misunderstandings of its governing regulations. It appears that
the Director and his staff have flirted with incompetence, although we do
not have a record establishing that they acted in bad faith.

                                                                                                       1
2   Island Creek Coal Co. v. Holdman, et al.            No. 97-4065       No. 97-4065     Island Creek Coal Co. v. Holdman, et al. 19

    Before: BOGGS and *MOORE, Circuit Judges; and                           Second, Island Creek believes that it suffered because of the
               DOWD, District Judge.                                      incomplete record. Apparently, Island Creek and Holdman
                                                                          reconstructed the record except for a transcript of Holdman’s
                      _________________                                   1980 testimony before ALJ Rippey, and two of Holdman’s
                                                                          exhibits. Island Creek observes that no party knows what the
                            COUNSEL                                       lost evidence would prove. This case places Island Creek in
                                                                          the difficult position of rebutting OWCP by proving the
ARGUED: Douglas A. Smoot, JACKSON & KELLY,                                contents of twenty-year-old documents lost by OWCP. For
Charleston, West Virginia, for Petitioner. Thomas M.                      seven years, the Board considered the lost materials necessary
Rhoads, RHOADS & RHOADS, Madisonville, Kentucky,                          to the disposition of Island Creek’s 1985 appeal: in 1989,
Rita Roppolo, U.S. DEPARTMENT OF LABOR, OFFICE                            January 1992, and May 1992, the Board issued orders
OF THE SOLICITOR, Washington, D.C., for Respondents.                      explaining that it could not resolve the appeal without the
ON BRIEF: Martin E. Hall, JACKSON & KELLY,                                completed record, and ordering OWCP to supply or
Lexington, Kentucky, for Petitioner. Thomas M. Rhoads,                    reconstruct the record. In 1993, the Board dismissed the 1985
RHOADS & RHOADS, Madisonville, Kentucky, Rita                             appeal, stating that it “must have the complete record of the
Roppolo, Patricia Nece, U.S. DEPARTMENT OF LABOR,                         proceedings below before considering the merits of this
OFFICE OF THE SOLICITOR, Washington, D.C., for                            appeal.” After ALJ Gilday received the assignment to
Respondents.                                                              reconstruct the record, he also agreed that the case could not
                                                                          fairly be resolved without the missing evidence. ALJ
                      _________________                                   Gilday’s 1994 order reflects that Holdman’s
                          OPINION                                         counsel—securely in the possession of an entitlement to
                      _________________                                   benefits—agreed with Island Creek that the missing evidence
                                                                          was “critical.”
  BOGGS, Circuit Judge. In a case with a lengthy procedural
history, Island Creek Coal Company appeals a decision of the                 Substantial evidence—the orders of the Board from 1985-
Benefits Review Board of the United States Department of                  1993, ALJ Gilday’s opinion, and the difficulty in proving a
Labor. The decision required Island Creek to pay Black Lung               negative—supports ALJ Gilday’s reasoned conclusion that
benefits to a coal miner’s widow. We reverse the decision of              the missing exhibits were important to the resolution of
the Board and reinstate the 1994 order of the administrative              Holdman’s contested claim. The missing documents could
law judge transferring responsibility for the payments to the             refute, confirm, or shed light on the opinions expressed in the
Black Lung Disability Trust Fund.                                         preserved evidence. “Moreover, speculation about the would-
                                                                          have-been and could-have-been misconstrues the focus of our
                                                                          inquiry. In this core due process context . . . we do not
                                                                          require a showing of ‘actual prejudice’ in the sense that there
                                                                          is a reasonable likelihood that the result of this claim would
                                                                          have been different absent the violation.” Lane Hollow Coal
                                                                          Co. v. Director, OWCP, 137 F.3d 799, 807 (4th Cir. 1998)
                                                                          (ruling that delay in notifying an employer of a claim deprived
    *
                                                                          it of due process, and transferring liability to the Trust Fund);
     The Honorable David D. Dowd, Jr., United States District Judge for   see also Consolidation Coal Co. v. Borda, 171 F.3d 175, 184
the Northern District of Ohio, sitting by designation.
18 Island Creek Coal Co. v. Holdman, et al.       No. 97-4065      No. 97-4065       Island Creek Coal Co. v. Holdman, et al.            3

  20 C.F.R. § 727.203(b)(3) does not concern itself with the                                  I. Jurisdiction
degree of a medical disability; rather, it requires the employer
to prove that coal mining played no role in the miner’s                     A. Background to the Jurisdictional Dispute
disability. See Warman v. Pittsburg & Midway Coal Mining
Co., 839 F.2d 257, 260 (6th Cir. 1988); see also                     In 1980, an Administrative Law Judge (ALJ) ordered Island
Youghiogheny & Ohio Coal Co. v. Webb, 49 F.3d 244, 250             Creek Coal Company to pay black lung benefits to Arthur
(6th Cir. 1995). Island Creek failed to meet its burden of         Holdman. Island Creek moved for reconsideration and later
proof. After reviewing the record that we have available, we       appealed to the Benefits Review Board. For various reasons,
hold that ALJ Rippey did not err in finding an entitlement of      discussed infra at 7-12, the Board did not rule definitively for
benefits.                                                          15 years. The Board issued its order on October 30, 1995.
                                                                   The Board mailed its order (not by certified mail) to Island
C. Whether the Board Erred by Re-transferring Liability to         Creek’s counsel at an incorrect address, sending it to
                     Island Creek                                  Charleston, West Virginia, rather than to Lexington,
                                                                   Kentucky. On August 2, 1996, Island Creek’s counsel
   ALJ Gilday found that, because he could not completely          inquired about the status of the appeal. That day, either the
reconstruct the record, the “best interests of justice [were]      Board or the Office of Workers’ Compensation Programs
served by” granting benefits while transferring liability from     (OWCP) faxed a copy of the October         30 order, which was
Island Creek to the Black Lung Disability Trust Fund. He           received by Island Creek that day.1 The final footnote of the
reasoned that, because OWCP was at fault for the years of          Board’s order read: “We note that employer may file a
delay, neither Island Creek nor Holdman’s widow should             petition for modification [of the terms of an award] with the
suffer from the incomplete record. The Board reversed his          district director under the provisions of 20 C.F.R. § 725.310.”
order insofar as it transferred liability to the Trust Fund, in    On September 11, 1996, in a petition to OWCP for
spite of the fact that OWCP lost the record before ALJ Rippey      modification of the 1980 order, Island Creek’s counsel cited
ruled on the motion for reconsideration in early 1985. Island      some newly-discovered medical evidence as support for
Creek observes that the statute might permit the transfer, as it   modification.
permits payment by the Trust Fund where, inter alia, “there
is no operator who is liable for the payment of such benefits.”      On September 23, 1996, Bobby Chaffins, a senior claims
26 U.S.C. § 9501(d)(1)(B). Island Creek contends that,             examiner with OWCP, responded, informing counsel that the
because OWCP’s actions resulted in a denial of due process         Board told Chaffins that “the appropriate course of action is
in the 14 years of proceedings following the disappearance of      for you to file the appeal with the Board, not the District
the record, it cannot be held liable where the violation           Director” (emphasis added). On September 27, counsel asked
undermined its ability to present its case fairly.                 Chaffins for clarification, explaining that counsel wished to
   First, it notes that OWCP, not employers, has the duty to
safeguard legal records (especially, we imagine, those in cases        1
where the employer loses before OWCP and the ALJ). Cf. 20                The parties disagree about the source. Compare Director’s Motion
C.F.R. § 725.102(a) (making OWCP the official custodian of         to Dismiss for Lack of Jurisdiction at 3 (“OWCP sent a copy of the
all documents related to claims of entitlement to benefits).       decision to [counsel] by facsimile.”) (filed Dec. 17, 1997) (emphasis
                                                                   added) with Island Creek Coal Company’s Response to Director’s Motion
We agree that this responsibility rests with OWCP.                 to Dismiss for Lack of Jurisdiction at 2 (“Only then did the Board fax a
                                                                   copy . . . .”) (filed Dec. 29, 1997) (emphasis added); see also Island
                                                                   Creek’s Petition for Modification at 1 (filed Sept. 11, 1996).
4   Island Creek Coal Co. v. Holdman, et al.      No. 97-4065      No. 97-4065    Island Creek Coal Co. v. Holdman, et al. 17

pursue a petition for modification with the Director, and not      Anderson’s testimony is not sufficient to establish that the
an appeal to the Sixth Circuit. Counsel stated his belief that     Claimant’s disability did not arise in whole or in part out of
the only appeal from an order by the Board was to the Sixth        his coal mine employment.” The Board correctly upheld ALJ
Circuit.                                                           Rippey on these grounds. An ALJ overseeing Black Lung
                                                                   Act claims may discredit medical expert testimony that
   On November 7, 1996, Harry Skidmore, the OWCP District          contains equivocations about the etiology of a disease. See
Director, responded via certified mail. Without citing             Griffith v. Director, OWCP, 49 F.3d 184, 186-87 (6th Cir.
authority or mentioning the final footnote in the Board’s          1995) (stating this proposition and citing cases in support);
order, he claimed that, because the Board currently had the        see also Lane Hollow Coal Co. v. Director, OWCP, 137 F.3d
record in the Holdman case, the Board, and not OWCP, had           799, 804 (4th Cir. 1998) (“[A] physician may opine that a
jurisdiction over the motion for modification. Skidmore            given miner has no pulmonary impairment attributable to coal
enclosed a copy of the October 30 order by the Board and           mine employment because simple pneumoconiosis does not
stated that “this correspondence represents your official notice   generally cause any pulmonary impairment. The interim
of the Board’s decision. Absent an appeal being filed by your      regulations presume precisely the opposite, and the
office within thirty (30) days from the date of this notice with   presumption must be rebutted with proof rather than
either the Benefits Review Board or Circuit Court, the award       disagreement.”). The Board may uphold an ALJ’s ruling on
will become final . . . .” (emphasis added).                       one ground if the ALJ errs in a separate basis for a ruling.
                                                                   See, e.g., Zeigler Coal Co. v. Kelley, 112 F.3d 839, 843 (7th
   On December 4, 1996, counsel mailed to the Board a              Cir. 1997).
motion for reconsideration. On August 21, 1997, the Board
denied the motion for reconsideration. Within 60 days, on             Finally, Island Creek contends that ALJ Rippey failed to
September 22, Island Creek petitioned this court for review of     comply with the Administrative Procedure Act, which
the Board’s orders of October 30, 1995, and August 21, 1997.       requires an adequate “statement of . . . findings and
On December 17, 1997, the Director moved to dismiss the            conclusions, and the reasons or basis therefor, on all the
petition for lack of jurisdiction. The Director claimed that the   material issues of fact, law, or discretion presented on the
time for action began to run when OWCP faxed the decision          record . . . .” 5 U.S.C. § 557(c)(3)(A); see Morehead Marine
to Island Creek’s counsel on August 2, 1996. After that date,      Servs., Inc. v. Washnock, 135 F.3d 366, 375 (6th Cir. 1998)
the Director alleged, Island Creek had two options: file a         (“Absent a specific, and accurate, reference to the evidence
motion with the Board for reconsideration of the October           supporting an ALJ’s decision, we hold that the ALJ has failed
1995 order, or petition this court for review. Island Creek did    to fulfill his duty as required by § 557(c)(3)(A), and we must
not move for reconsideration until December 4, 1996, and it        remand for a proper explanation.”). Granted, ALJ Rippey did
did not petition for review until September 22, 1997. Thus,        not discuss at length the evidence supporting Holdman’s
claimed the Director, this court lacked jurisdiction over the      claim. However, the parties stipulated that Holdman
petition.                                                          benefitted from the interim presumption. As Island Creek had
                                                                   the burden of rebutting the presumption, ALJ Rippey had only
   Island Creek responded to OWCP’s motion by observing            to explain why he found its three medical experts failed to
that the OWCP Director informed counsel on November 7,             rebut the presumption. He addressed the three medical
1996, that his letter constituted “official notice,” and that      experts that Island Creek offered, thereby adequately
Island Creek had thirty days to file a motion for                  explaining why he found that Island Creek failed to rebut the
reconsideration with the Board. Within thirty days of the          presumption.
16 Island Creek Coal Co. v. Holdman, et al.      No. 97-4065      No. 97-4065          Island Creek Coal Co. v. Holdman, et al.   5

Nevertheless, on reconsideration, he found that the report did    Director’s letter (sent by certified mail), Island Creek filed
not rebut the presumption:                                        with the Board its motion for reconsideration. Within 60 days
                                                                  of the Board’s denial of the motion, Island Creek petitioned
  [H]owever [Dr. Gallo’s] opinion is not credible in light        this court for review. Therefore, according to Island Creek,
  of the fact that Claimant could not even complete the           we have jurisdiction over this appeal.
  pulmonary function tests because of chest pain. Dr.
  Gallo attributes these chest pains to suggest angina                               B. Analysis of Jurisdictional Issue
  pectoris but never comments on whether Claimant’s lung
  condition, which he diagnosed as pneumoconiosis,                  20 C.F.R. § 802.410(a) provides that, “Within 60 days after
  contributes to the chest pains. Moreover, Dr. Gallo’s           a decision by the Board has been filed pursuant to
  report was silent as to whether he considered Claimant to       § 802.403(b), any party adversely affected or aggrieved by
  be totally disabled or not and if Claimant is totally           such decision may file a petition for review with the
  disabled whether his disability arises in whole or in part      appropriate U.S. Court of Appeals . . . .” 20 C.F.R.
  out of coal mine employment.                                    § 802.403(b) provides that, inter alia, “[t]he original of the
                                                                  decision shall be filed with the Clerk of the Board,” and that
The Board ruled that ALJ Rippey “acted within his discretion      “[a] copy of the Board’s decision shall be sent by certified
as fact-finder in determining that Dr. Gallo’s opinion was        mail or otherwise presented to all parties to the appeal and the
insufficient to rule out pneumoconiosis as a cause of the         Director.”
miner’s disability.” The Board did not err. ALJ Rippey
properly found that Dr. Gallo did not rule out pneumoconiosis        The parties agree that the Board sent Island Creek’s copy of
as a contributing cause of the disability. Cf. Gibas v. Saginaw   the 1995 order to the wrong address, and that, in 1995, Island
Mining Co., 748 F.2d 1112, 1120 (6th Cir. 1984) (placing the      Creek did not receive a copy of the Board’s 2order. Once it
burden on the employer to show that “pneumoconiosis played        somehow learned of the Board’s decision, Island Creek
no part in causing a miner’s disability”), cert. denied, 471      attempted to obtain a modification of the ALJ’s order, but the
U.S. 1116 (1985).                                                 OWCP informed Island Creek in a letter dated September 23,
                                                                  1996 that the Board advised that “the appropriate course of
  Second, Island Creek contends that, in his 1980 order, ALJ      action is for you to file the appeal with the Board, not the
Rippey improperly discredited Dr. Anderson’s testimony            District Director.” The November 7, 1996 certified mail letter
solely because ALJ Rippey found the testimony contrary to         from the OWCP to Island Creek included a copy of the
the spirit and assumptions underlying the Black Lung Benefits     Board’s order and informed Island Creek that “this
Act. Dr. Anderson testified that simple pneumoconiosis will       correspondence represents your official notice of the Board’s
not usually disrupt pulmonary function. The Board ruled that,     decision,” and that “[a]bsent an appeal being filed by your
because Dr. Anderson did not rule out the possibility that        office within thirty (30) days from the date of this notice with
simple pneumoconiosis may cause pulmonary dysfunction,            either the Benefits Review Board or Circuit Court, the award
ALJ Rippey erred by finding the Anderson report inconsistent      will become final . . . .” This letter was consistent with the
with the Act. The Board upheld ALJ Rippey’s order on other        earlier advice by the Board, relayed by Chaffins in the
grounds, noting that ALJ Rippey discounted Dr. Anderson’s         September 23 letter, that no action could be taken on Island
credibility because the doctor used words such as “probably.”
ALJ Rippey described the testimony as “hedg[ing],” and
wrote that, “When viewed in its entirety . . . I find that Dr.
                                                                     2
                                                                         See fn. 1
6   Island Creek Coal Co. v. Holdman, et al.       No. 97-4065      No. 97-4065        Island Creek Coal Co. v. Holdman, et al. 15

Creek’s petition for modification. The Board has never                  B. Whether Island Creek Failed to Rebut the Interim
denied this position.                                                        Presumption of Entitlement to Benefits
   After the Board and OWCP apparently unlawfully                     In its October 1995 order, the Board treated Island Creek’s
foreclosed Island Creek’s attempt to obtain redress via a           cross-appeal as a request to reinstate its prior appeal of 1985
petition for modification (pursuant to 20 C.F.R. § 725.310, a       that challenged ALJ Rippey’s finding that Island Creek failed
procedure with attendant avenues for hearings and appeal in         to rebut Holdman’s presumption of entitlement to benefits.
the event that a party is dissatisfied with the OWCP’s              The Board interpreted the appeal in this manner because ALJ
resolution of the petition, see 20 C.F.R. § 725.419), Island        Gilday made no findings regarding the initial presumption of
Creek filed with the Board a motion for reconsideration on          entitlement and Island Creek’s failure to rebut the
December 4, 1996 (within thirty days of the November 7              presumption. Instead, without elaboration, ALJ Gilday
letter sent by certified mail). See 20 C.F.R. § 802.407(a)          reinstated the benefits and dismissed Island Creek solely
(“Any party-in-interest may, within 30 days from the filing of      because he felt the company suffered a due process violation
a decision or non-interlocutory order by a panel or the Board       from OWCP’s behavior in the litigation.
pursuant to § 802.403(b), request reconsideration of such
decision by those members who rendered the decision.”).               On appeal, Island Creek appears to have abandoned its
                                                                    claim that ALJ Rippey erred in finding that Island Creek
   The Board treated the motion as timely and denied it on          failed to rebut the presumption pursuant to 20 C.F.R.
August 21, 1997. Within sixty days, on September 22, Island         § 727.203(b)(2) (which allows rebuttal with evidence that
Creek petitioned this court for review of the Board’s orders.       shows that the claimant has the ability to perform his “usual
“[A] petition for review under § 921(c) is timely if filed          coal mine work or comparable and gainful work”). Island
within sixty days of the Board’s denial of a timely motion for      Creek contends that ALJ Rippey mistakenly found that Island
reconsideration.” Peabody Coal Co. v. Abner, 118 F.3d 1106,         Creek had not rebutted the presumption pursuant to
1108 (6th Cir. 1997). In light of the timely motion for             § 727.203(b)(3), permitting rebuttal where evidence shows
reconsideration, our jurisdiction stems from 33 U.S.C.              “that the total disability or death of the miner did not arise in
§ 921(c), which provides that, “Any person adversely affected       whole or in part out of coal mine employment . . . .” The
or aggrieved by a final order of the Board may obtain a review      company isolates three alleged errors, none of which merit
of that order in the United States court of appeals for the         reversal.
circuit in which the injury occurred, by filing in such court
within sixty days following the issuance of such Board order          First, Island Creek contends that ALJ Rippey
a written petition praying that the order be modified or set        inappropriately discounted Dr. Gallo’s medical opinion. In
aside.” The Department of Labor has, by regulation, clarified       his 1985 order denying Island Creek’s motion for
the various avenues governing the measurement of the date of        reconsideration, ALJ Rippey admitted that he erred in
the start of the 60-day period, see, e.g., 20 C.F.R. § 802.406      overlooking Dr. Gallo’s evaluation of pulmonary test results.
(“If a timely request for reconsideration has been filed, the 60-
day period for filing such petition for review [with a circuit
court of appeals] will run from the issuance of the Board’s
decision on reconsideration.”). In this case, the government        (b)(3) to focus on (b)(2)). Here, ALJ Rippey twice emphasized that
similarly clarified that the letter it mailed on November 7,        Island Creek focused “primarily” on (b)(3). Therefore, (b)(2)’s formerly-
1996 “represents [Island Creek’s] official notice of the            lax standard did not “lull” Island Creek into focusing its efforts on (b)(2)
                                                                    rebuttal to the detriment of its case for (b)(3) rebuttal.
14 Island Creek Coal Co. v. Holdman, et al.               No. 97-4065        No. 97-4065     Island Creek Coal Co. v. Holdman, et al.       7

most plausible, interpretation. Presumably, however, the                     Board’s decision” and that “[a]bsent an appeal being filed . . .
Board may interpret the scope of its ambiguous orders.                       within thirty days from the date of this notice . . ., the award
                                                                             will become final . . . .”
   Island Creek contends that, because legal standards have
changed since 1980, it may, at a new hearing, present new                      The crux of the jurisdictional question is what constitutes
evidence in its defense against the claim of entitlement. Since              “issuance of such order” under the statute and regulation. The
1980, the legal interpretation has changed regarding two                     seemingly relevant regulation, § 802.407(a), does not use
subsections governing means of rebutting the presumption.                    “issuance” but instead refers to “a decision by the Board [that]
See Part II.A supra (discussing methods of rebuttal). Island                 has been filed pursuant to § 802.403(b),” to start the thirty
Creek contends that the standards for satisfying the “(b)(3)”                days for filing a request for reconsideration. The referenced
rebuttal standard have become more stringent since 1980. See                 § 802.403(b) makes two statements: “that the original of the
20 C.F.R. § 727.203(b)(3) (permitting rebuttal if the employer               decision shall be filed with the clerk of the Board,” and that
proves that “total disability . . . did not arise in whole or in             “a copy . . . shall be sent by certified mail or otherwise
part out of coal mine employment”). Island Creek contends                    presented” to all parties. A very literal interpretation would
that, in 1980, it had to prove only that “no significant”                    mean that giving the decision to the clerk is sufficient to start
relationship existed between a coal miner’s employment and                   the time period, and it doesn’t matter whether the parties ever
his disability, while the new standard requires the employer                 get notice. Not even the Board and the Director take this
to rule out “any” relationship whatsoever between                            position, as they contend that the time began to run with the
employment and the disability. The Director asserts that the                 faxing of the opinion on August 2. Thus, the effect on the
Board followed the “no significant relationship”standard only                time limit of the Board’s treatment of its own decision is a
between 1981 and 1989, so that, if a new hearing occurs,                     matter that is subject to some interpretation.
Island Creek would face the same standard it faced in 1980.
The Director accurately describes the evolution of Board                       Island Creek attempted to undertake a specific lawful and
precedent. Island Creek has no right to introduce new                        timely procedure for obtaining further review of its claims by
evidence. See Faries v. Director, OWCP, 909 F.2d 170, 175                    a petition for modification. It was specifically informed by
(6th Cir. 1990) (finding no due process violation in Black                   OWCP, speaking for the Board and presenting a position that
Lung Benefits Act hearings where “the applicable legal                       has never been repudiated by the Board, that such a procedure
standard travelled  a full circle beginning and ending at the                was not possible, and it was then specifically sent a copy of
same place”).4                                                               the Board’s decision and specifically told that that copy had
                                                                             the timeliness consequences that were specified for a filing of
                                                                             the opinion under § 802.410(a) and § 802.403(b). Island
    4                                                                        Creek’s December 4 filing thus served as a timely motion for
      Island Creek also cites the decision in York v. Benefits Review Bd.,
819 F.2d 134 (6th Cir. 1987), which changed the standard for                 reconsideration, permitting us to turn to the merits of Island
§ 727.203(b)(2) rebuttal. Island Creek contends that the York decision       Creek’s petition for review.
also changed the standard for § 727.203(b)(3) rebuttal. This is incorrect.
See Peabody Coal Co. v. White, 135 F.3d 416, 419 (6th Cir. 1998). Also,                 II. Factual and Procedural Background
Island Creek contends that, because the (b)(2) standard changed, it may
introduce new evidence in its (b)(3) challenge. We permit such evidence                A. Initial Award of Black Lung Benefits
only if the formerly-lax (b)(2) standard lulled employers into attempting
primarily to rebut the presumption via (b)(2). See Island Creek Coal Co.
v. Hammonds, No. 94-4110, 1996 WL 135019, at *4 (6th Cir. Mar. 25,             In 1978, Arthur W. Holdman filed a claim with the United
1996) (unpublished) (denying remand where Island Creek did not ignore        States Department of Labor (DOL) for benefits under the
8   Island Creek Coal Co. v. Holdman, et al.      No. 97-4065      No. 97-4065    Island Creek Coal Co. v. Holdman, et al. 13

Black Lung Benefits Act, 30 U.S.C. §§ 901-930. As of 1978,         Creek’s appeal to the OALJ “for further proceedings,
Holdman was 57 years old and had worked in coal mines for          including reconstruction of the record and, if necessary, a new
30 years, the last ten of which he had spent working for Island    hearing [footnote].” The footnote read, “We note that Mr.
Creek. He stopped working in June 1978. DOL’s Office of            Holdman died on July 6, 1987.” ALJ Gilday’s order states
Workers’ Compensation Programs (OWCP) awarded benefits             that he held no hearing, but that he received evidence into the
to Holdman, and it ordered Island Creek to pay them. Island        (new) record. The parties produced copies of whatever old
Creek disputed this result and requested a hearing.                exhibits they had in their files, and Island Creek produced
                                                                   several new depositions and reports taken or created in 1994.
   On June 24, 1980, ALJ Charles P. Rippey presided over a         It is unclear whether ALJ Gilday entered the new evidence in
hearing involving Holdman and Island Creek. The parties            the record, because ALJ Gilday based his ruling on perceived
stipulated that the medical evidence showed that Holdman           due process violations by the Director rather than on the
benefitted from the “interim presumption” of 20 C.F.R.             evidence of Holdman’s disability. ALJ Gilday’s order
§ 727.203(a). The April 1998 version of 20 C.F.R.                  reinstated benefits while dismissing Island Creek from the
§ 727.203(a) reads, in part, “A miner who engaged in coal          case; nothing suggests that he reviewed the new evidence or
mine employment for at least 10 years will be presumed to be       made any new findings about entitlement. “It readily
totally disabled due to pneumoconiosis . . . if one of [several    appeared that the record cannot be recreated or reconstructed
enumerated] medical requirements is met.” ALJ Rippey’s             and that, once again, the Board has ordered an Administrative
decision shows that the medical experts came to different          Law Judge to perform an exercise of utter futility,” he wrote.
conclusions, and ALJ Rippey found that Holdman suffered
from “simple pneumoconiosis,” as opposed to complex                  When Island Creek cross-appealed after ALJ Gilday’s
pneumoconiosis or none at all.                                     ruling, the Board noted that the company had asserted in the
                                                                   cross-appeal that, if the Board reinstated Island Creek as the
   While it since has been amended, the 1980 version of 20         responsible operator, “employer ‘retains the right to contest
C.F.R. § 727.203(b) listed four means of rebutting the interim     entitlement.’” The Board refused to permit ALJ Gilday to
presumption. Subsections 727.203(b)(1) & (2) state that the        reconsider entitlement in the event that the Board remanded
presumption is rebutted if the employer shows that the             the case. The Board stated that, “Judge Gilday erred in
claimant is doing, or is able to do, “his usual coal mine work     admitting newly developed evidence into the record inasmuch
or comparable and gainful work.” Subsection 727.203(b)(4)          as he was confined to the scope of proceedings dictated by the
allows rebuttal of the presumption when a party shows that         Board’s remand order,” which it interpreted as remanding the
“[t]he evidence establishes that the miner does not . . . have     case “for the specific purpose of reconstructing an incomplete
pneumoconiosis.” ALJ Rippey found “no analysis which               record and holding a new hearing if necessary.”
even approaches the possibility of rebutting the presumption
under any of those subsections.”                                     Given that the Board knew that Holdman had died, its
                                                                   remand order appears to have anticipated the introduction of
  ALJ Rippey twice remarked that Island Creek “primarily”          new evidence if ALJ Gilday found that he could not
relied on 20 C.F.R. § 727.203(b)(3), which declares the            reconstruct the original record. One can read the original
presumption rebutted if the “evidence establishes that the total   order to permit a hearing only to reconstruct, not supplement,
disability or death of the miner did not arise in whole or in      the record (e.g., the order remanded “for further proceedings,
part out of coal mine employment . . . .” ALJ Rippey rejected      including reconstruction of the record and, if necessary, a new
the reports of Island Creek’s three medical experts, finding       hearing”), but this does not appear to be the only, or even the
12 Island Creek Coal Co. v. Holdman, et al.      No. 97-4065      No. 97-4065       Island Creek Coal Co. v. Holdman, et al.           9

the Director of OWCP responsible for OWCP’s failure to            the reports lacking in credibility and insufficient to rebut the
transmit the record, and for ignoring the Board’s orders to       presumption in light of § 727.203(b)(3)’s requirement that the
produce the record and to remand the case for reconstruction      employer show that the disability “did not arise in whole or in
of the record. Finding the record inadequate to resolve the       part out of coal mine employment” (emphasis added). ALJ
legal issues, the order reinstated the benefits, ordered them     Rippey concluded by ordering Island Creek to pay benefits to
paid to Holdman’s widow from the Black Lung Trust Fund,           Holdman, augmenting the benefits because Holdman had a
and dismissed Island Creek from the case.                         dependent, his wife Hallie.
 E. The Only Consummated Appeal of Island Creek to the                        B. Reconsideration of the ALJ’s Order
                      Board
                                                                     On October 20, 1980, Island Creek moved for
  After ALJ Gilday issued his order, the Director appealed        reconsideration. It observed that ALJ Rippey had dismissed
and Island Creek cross-appealed. The Director claimed that        the report of one expert, Dr. Gallo, because ALJ Rippey
ALJ Gilday erred in transferring liability from Island Creek to   found it lacked credibility because he thought Dr. Gallo was
the Trust Fund, and Island Creek challenged the finding of an     “without the benefit of any pulmonary function tests results.”
entitlement to benefits. The Board found in the Director’s        Island Creek referred to Dr. Gallo’s report, wherein Dr. Gallo
favor, ruling that ALJ Gilday erred in transferring liability.    apparently wrote that “[p]ulmonary function test demonstrates
The Board treated Island Creek’s cross-appeal as a request to     a normal spirogram.”
re-open the 1985 appeal to the Board for review of ALJ
Rippey’s finding that Island Creek failed to rebut the               On March 1, 1982, ALJ Rippey issued an order. In it, he
presumption of entitlement. The Board held that ALJ Rippey        stayed his prior award of attorney fees against Island Creek,
did not err in finding that Island Creek failed to rebut the      pending the resolution of the motion for reconsideration. He
presumption of entitlement. Finally, the Board held that ALJ      explained: “That motion [for reconsideration], which was
Gilday erred by admitting newly-developed evidence into the       inadvertently misplaced, necessitates the recalling of the full
record; the Board contended that it had authorized OALJ only      record a process that will take approximately three to four
to reconstruct the old record and to hold a hearing if            weeks.” Two years passed.
necessary. Island Creek petitioned this court for relief.
                                                                    On April 24, 1984, the Office of Administrative Law
                   III. Substantive Issues                        Judges, 3DOL, requested that OWCP return the record to ALJ
                                                                  Rippey. The Director of OWCP, the Federal Respondent,
  This court reviews decisions of the Board to determine          asserts that an illegible receipt shows that OWCP sent the
whether substantial evidence supports the Board’s holding.        record by certified mail on April 30, 1984. The Office of
See Cal-Glo Coal Co. v. Yeager, 104 F.3d 827, 830 (6th Cir.       Administrative Law Judges (OALJ) never received the record;
1997). This court reviews de novo the Board’s legal               internal handwritten OWCP memoranda, mostly illegible,
conclusions. See ibid.                                            suggest that the post office erred. The Pikeville, Kentucky
                                                                  Post Office issued a Mail Nondelivery Report which shows
 A. Whether the Board Erred By Ruling that ALJ Gilday             that DOL complained about the non-delivery.
         Mistakenly Admitted New Evidence
  In 1993, after repeated and fruitless requests to the OWCP          3
                                                                        Support for this paragraph comes from material not in the record,
to produce the missing record, the Board remanded Island          but helpful to explain the chronology of this appeal.
10 Island Creek Coal Co. v. Holdman, et al.         No. 97-4065       No. 97-4065     Island Creek Coal Co. v. Holdman, et al. 11

   In 1985, ALJ Rippey contacted Holdman and Island Creek             had failed to respond to any of the four Board orders
and asked them to reconstruct from their own files the                demanding the reconstruction of the record. “The Board must
pertinent medical evidence. Holdman’s attorney mailed a               have the complete record of the proceedings below before
letter to ALJ Rippey that claimed to enclose copies of several        considering the merits of this appeal,” wrote the Board. The
of the original exhibits and reports, including “Dr. Gallo’s          Board remanded the case to OALJ for further proceedings,
two-page pulmonary evaluation report.” OWCP provided                  “including reconstruction of the record and, if necessary, a
only administrative documents, offering no documents                  new hearing.”
“relative to the merits of the case.” ALJ Rippey issued an
order denying the motion for reconsideration. He said he                           D. Proceedings Before ALJ Gilday
found the reconstructed record “sufficient to base this opinion
on”; he admitted that his 1980 order overlooked Dr. Gallo’s             OALJ assigned the case to ALJ Bernard J. Gilday, and the
pulmonary function study, but he found that Dr. Gallo’s               parties attempted to re-construct the record. ALJ Gilday
pulmonary evaluation report did not rebut the interim                 scheduled a hearing on September 13, 1994, in Madisonville,
presumption.                                                          Kentucky. Island Creek appeared, the Director for OWCP did
                                                                      not attend or send counsel, and Holdman’s widow’s attorney
C. Island Creek’s Abortive Appeal to the Benefits Review              appeared. ALJ Gilday limited the scope of the hearing and
                         Board                                        accepted newly-developed evidence from Island Creek and
                                                                      Holdman’s widow, including 1994 depositions of some of the
   In June 1985, Island Creek appealed to the Benefits Review         medical experts from the 1980 hearing. The parties did not
Board (“Board”) the denial of the motion for reconsideration.         have a transcript of the June 24, 1980 hearing (at which
Holdman died on July 6, 1987. Four years after Island Creek           Holdman testified), and the parties could not reconstruct all
filed its appeal, the Board issued an order on April 14, 1989.        the exhibits.
In the order, the Board remarked that the record lacked
several items, including a transcript of the June 24, 1980              Apparently, ALJ Gilday was displeased by the Director and
hearing, and ten exhibits. The Board ordered the Director of          OWCP, as he felt that they had repeatedly ignored Board
OWCP to forward the missing documents to the Board by                 orders; had held Holdman, his wife, and Island Creek “in
June 1, 1989. On June 1, 1989, the OWCP responded by                  limbo” for almost ten years; and also did not appear (as
claiming that it had already sent all the documents it had, and       requested) at the September 13, 1994, hearing before ALJ
that, “[a]fter diligent search, the undersigned has been unable       Gilday. ALJ Gilday ordered the Director to show cause why
to locate the litigation file for this case, and, consequently, the   Gilday should not reinstate benefits to Holdman’s widow and
Director cannot comply with the Board’s order.” After three           order the benefits paid from the Black Lung Trust Fund. The
more years, on May 22, 1992, the Board remanded the case              Director filed a three-paragraph answer, disclaiming fault for
to OWCP “for re-creation of the record. When the record has           the loss of the record and tersely remarking that, “it is not in
been re-created, the deputy commissioner shall, as                    the best interest of justice to require the Trust Fund to pay
expeditiously as possible, forward the case record to the             these benefits.”
Board so the appeal may be heard on its merits.” Apparently,
OWCP took no action in response to this order.                          On October 7, 1994, ALJ Gilday filed an order, lamenting
                                                                      that “once again, the Board has ordered an Administrative
 In July 1993, eight years after Island Creek appealed, the           Law Judge to perform an exercise of utter futility”. In it, he
Board issued yet another order, remarking that the Director           lambasted the OWCP for its legalistic response that failed to
                                                                      address whether to reinstate the benefits. ALJ Gilday found
