                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


HAZEL EGGERS, Widow of James W.      
Eggers,
                       Petitioner,
                v.
CLINCHFIELD COAL COMPANY;                        No. 01-1198
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
                      Respondents.
                                     
               On Petition for Review of an Order
                 of the Benefits Review Board.
                         (99-1244-BLA)

                     Argued: December 5, 2001

                     Decided: February 12, 2002

     Before WIDENER and WILLIAMS, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Vacated and remanded by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Lawrence Lee Moise, III, Abingdon, Virginia, for Eggers.
Rita A. Roppolo, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Director. Timothy Ward Gresham, PENN,
STUART & ESKRIDGE, Abingdon, Virginia, for Clinchfield Coal.
2                  EGGERS v. CLINCHFIELD COAL CO.
ON BRIEF: Howard M. Radzely, Acting Solicitor of Labor, Donald
S. Shire, Associate Solicitor, Patricia M. Nece, Counsel for Appellate
Litigation, UNITED STATES DEPARTMENT OF LABOR, Wash-
ington, D.C., for Director.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Hazel Eggers, widow of the late James Eggers, appeals the decision
of the U.S. Department of Labor’s Benefits Review Board (BRB) to
reopen the record regarding her claim to black lung benefits stemming
from her late husband’s employment by the Clinchfield Coal Com-
pany. Because the BRB’s stated reason for reopening the record in
this case is plainly insufficient, we hold, in accordance with the posi-
tion urged by Mrs. Eggers and the Department of Labor’s Office of
Workers Compensation Programs (OWCP), that the BRB abused its
discretion in reopening the record, and we reverse the denial of bene-
fits based on the improperly augmented record, remanding the case
for additional proceedings.

                                   I.

                                   A.

   The key issue in this case is the propriety of the BRB’s decision
to reopen the record; thus, the lengthy procedural history of this case
assumes central importance to our disposition. On August 21, 1979,
James Eggers (the miner), by counsel, sent a letter to the U.S. Depart-
ment of Labor which stated that his lawyers were representing him "in
his claim for black lung benefits" and enclosed various documents for
inclusion as "part of the record in this claim." (J.A. at 260.) The miner
did not, however, file a formal claim for benefits until February 28,
                    EGGERS v. CLINCHFIELD COAL CO.                        3
1983. Clinchfield Coal, his employer for approximately forty years,
contested the claim. After various administrative proceedings, a hear-
ing was held before Administrative Law Judge (ALJ) Victor Chao on
September 9, 1986. At that time, the miner argued that his attorney’s
1979 letter qualified as a "claim" within the meaning of the black lung
regulations. As a result, he argued that the interim Part 727 black lung
regulations, codified at 20 C.F.R. § 727.203 (1999), and applicable to
claims filed prior to March 31, 1980, applied to his claim, as opposed
to the more restrictive Part 718 regulations, codified at 20 C.F.R.
§ 718.2 (2001), and applicable to claims filed after that date. In view
of the potential application of the Part 727 regulations, Judge Chao
remanded the case to the Department’s district director to determine
the filing date.1

   On March 17, 1987, the district director held the Part 718 regula-
tions applicable on the basis that the only filing of record was the
claim filed in 1983. Following the district director’s decision, a hear-
ing was then held before ALJ Giles McCarthy on October 19, 1987.
ALJ McCarthy stated that the issue of whether Part 718 or Part 727
applied was before him. The miner and Clinchfield placed additional
medical evidence into the record for ALJ McCarthy’s consideration.
On August 24, 1988, ALJ McCarthy remanded the case to the district
director for the development of further facts regarding the question of
whether a claim was filed in 1979. On October 17, 1988, the district
director’s office again determined that the only relevant claim filed
with the Department of Labor was the 1983 claim. In 1989, the case
was forwarded for a hearing before an ALJ, with the prior claim issue
again designated as being in dispute.

   Prior to this scheduled hearing, the miner died. His widow, Hazel
Eggers, filed a claim for survivor’s benefits, which the district direc-
tor denied on the basis that the miner’s death was not due to pneumo-
coniosis. A hearing on both the miner’s and the survivor’s claims was
held before ALJ John Bedford on August 17, 1989. Before ALJ Bed-
ford, Clinchfield submitted newly-developed evidence in the form of
the 1989 medical opinions of Drs. Caffrey and Fino. In its post-
hearing brief, Clinchfield argued that the Part 718 regulations applied,
  1
   See Part II.A infra for a substantive explanation of the relevant differ-
ences between the Part 727 and Part 718 regulations.
4                  EGGERS v. CLINCHFIELD COAL CO.
but in the alternative that even if the Part 727 regulations applied,
Clinchfield had met its rebuttal burden under those regulations.

   On June 4, 1990, ALJ Bedford issued a decision denying benefits.
J.A. 37. He determined that the miner did not file a claim or intend
to claim benefits before 1983, and thus, the more stringent Part 718
regulations applied. ALJ Bedford found that Mrs. Eggers did not
carry her burden under the Part 718 regulations of showing that the
miner’s total disability was due to pneumoconiosis. As a corollary,
ALJ Bedford held that Mrs. Eggers could not show that she was enti-
tled to survivor’s benefits.

   Mrs. Eggers appealed to the BRB. The BRB affirmed the ALJ’s
determination that the Part 718 regulations applied because no claim
had been filed until 1983, but it remanded after determining that the
ALJ applied an excessively stringent standard under Part 718. Mrs.
Eggers then petitioned this Court for review of the denial of her survi-
vor’s claim. Eggers v. Clinchfield Coal Co., 11 F.3d 35 (4th Cir.
1993). We dismissed the appeal on ripeness grounds, holding that
Mrs. Eggers’ claim was too intertwined with the unresolved miner’s
claim to allow for proper review. Id. at 39-40. On remand, the case
was reassigned to ALJ Charles Rippey. Judge Rippey denied benefits
on November 21, 1994, on the ground that the evidence, under the
Part 718 regulations, failed to prove that the miner’s total disability
was due to his pneumoconiosis.

   Mrs. Eggers appealed to the BRB and again argued that the miner’s
claim had been effectively filed in 1979. The BRB agreed, and on
April 29, 1996, reversed its prior holding, finding that a manifest
injustice would occur if the Part 718 regulations were applied. The
BRB remanded the case for reconsideration under the more lenient
Part 727 standard.

   On remand, in reliance on the previous record, and without a hear-
ing, ALJ Rippey entered an order awarding benefits on the basis that
the evidence was insufficient to allow Clinchfield to carry its rebuttal
burden under Part 727. Clinchfield appealed to the BRB, arguing that
Part 727 was applied improperly and that the parties should have had
an opportunity to develop new evidence addressing rebuttal. Clinch-
field also challenged ALJ Rippey’s determination of the starting date
                    EGGERS v. CLINCHFIELD COAL CO.                      5
of benefits. The BRB vacated ALJ Rippey’s order, finding that the
Fourth Circuit had clarified the nature of the Part 727 rebuttal stan-
dard after the record closed. The BRB thus remanded with instruc-
tions to reopen the record.

   On remand, the case was assigned to ALJ Clement Kichuk. ALJ
Kichuk reopened the record, and both Mrs. Eggers and Clinchfield
submitted additional evidence. After consideration of the old and the
new evidence, ALJ Kichuk denied benefits on August 18, 1999.
Because he denied benefits, ALJ Kichuk made no determination
regarding the benefits starting date, with respect to which the BRB
had vacated ALJ Rippey’s earlier finding. ALJ Kichuk found that
Clinchfield had met its burden of showing that no part of the miner’s
disability was due to pneumoconiosis, thus rebutting the presumption
of disability created under Part 727 by the presence of pneumoconio-
sis. Mrs. Eggers appealed to the BRB, which affirmed the denial of
benefits on December 22, 2000. Mrs. Eggers timely appealed to this
Court.

                                   B.

   While the dominant issues in this case are procedural, an under-
standing of the basic factual outlines of the claim is essential to under-
standing the procedural issues raised. The miner last worked in the
coal industry in June of 1983. Before retiring, he worked six or seven
days a week and about two to three hours of overtime per day.
According to the miner’s 1986 deposition, he was not on any breath-
ing medication or seeing any doctors while working. He stated that
his breathing only became a problem after March, 1986, at which
time he went into the hospital for a leg amputation. The miner pro-
vided several different smoking histories, ranging from a pack of cig-
arettes a week for fifteen years to one-half a pack a day since 1937.
The miner died on September 14, 1988; his death certificate lists con-
gestive heart failure due to arteriosclerotic cardiovascular disease as
the cause of death.

  Prior to the remand to ALJ Kichuk, Drs. Sargent, Fino, Caffrey and
Naeye provided medical testimony which indicated generally that the
miner’s coal mine employment contributed to his respiratory impair-
ment, at most, only to a minor extent and further, that the overall
6                  EGGERS v. CLINCHFIELD COAL CO.
extent of his impairment was not disabling. ALJ Rippey held that
these opinions — which constituted Clinchfield’s rebuttal of pre-
sumption evidence — were insufficient to meet the demanding rebut-
tal standard at Section (b)(3) of Section 727, which requires proof that
a miner’s disability did not arise in whole or in part out of coal mine
employment. 20 C.F.R. § 727.203(b)(3). Judge Rippey’s reasoning
was that Drs. Sargent and Fino stated only that coal dust did not play
a "significant" role in the miner’s disability, that Dr. Naeye stated
only that pneumoconiosis alone did not prevent the miner from
engaging in hard physical work, and that Dr. Caffrey stated only that
coal mining probably contributed no more than ten percent to the
miner’s disability. (J.A. at 372-73.) Thus, Judge Rippey reasoned,
Clinchfield’s evidence simply failed on its own terms to exclude the
possibility that the miner’s disability was due "in part" to coal mine
employment.

   After the record was reopened, Mrs. Eggers submitted a supple-
mental report produced by Dr. Robinette, who concluded that the
miner’s coal workers’ pneumoconiosis was a significant contributing
factor to his pulmonary disability and contributed to his death.
Clinchfield submitted a supplemental report produced by Dr. Fino,
who concluded that coal mine dust inhalation played absolutely no
role in the miner’s disability. Clinchfield also provided a deposition
of Dr. Sargent, who testified that coal mine dust exposure did not con-
tribute in any way to the miner’s disability. ALJ Kichuk credited the
newly-introduced testimony of Drs. Fino and Sargent, finding that the
miner’s disability was not caused by coal mine employment to any
extent.

   On appeal, Mrs. Eggers and the OWCP argue that on the record as
it existed before reopening, Clinchfield’s rebuttal evidence was insuf-
ficient as a matter of law, that this Court should reverse the BRB’s
decision reopening the record, as well as its affirmance of ALJ
Kichuk’s decision, and that we should remand the case with instruc-
tions to adopt ALJ Rippey’s liability finding and to conduct additional
proceedings regarding the starting date of benefits. We address each
contention in turn.
                    EGGERS v. CLINCHFIELD COAL CO.                      7
                                   II.

                                   A.

   The BRB’s decision to reopen an evidentiary record is reviewed for
abuse of discretion. Betty B Coal Co. v. Director, OWCP, 194 F.3d
491, 501 (4th Cir. 1999) (reopening of record is committed to ALJ’s
discretion);2 cf. Harry & Bryant Co. v. FTC, 726 F.2d 993, 998 (4th
Cir. 1984) ("Failure to reopen a record is not an error unless it is an
abuse of discretion."). Questions of law are, of course, reviewed de
novo. Underwood v. Elkay Mining, Inc., 105 F.3d 946, 948-49 (4th
Cir. 1997). Under the doctrine of SEC v. Chenery Corp., 318 U.S. 80
(1943), this Court may only affirm on the grounds relied on by the
BRB and may not affirm on unstated alternate grounds. See OWCP
v. Trace Fork Coal Co., 67 F.3d 503, 507 (4th Cir. 1995) (quoting
Chenery for the proposition that "because the BRB’s decision . . . ade-
quately rests on alternate ‘grounds upon which the agency acted,’
which were addressed below, the BRB’s decision . . . is affirmed");
Grigg v. Director, OWCP, 28 F.3d 416, 418 (4th Cir. 1994) (applying
Chenery to a BRB decision). Chenery is based on the proposition that
unlike lower courts, agencies exercise their discretion as the reposito-
ries of a Congressionally-delegated power to make policy; thus, just
as an appellate court cannot take the place of a jury in finding facts,
it may not take the place of an agency in advancing a rationale for
agency action. Chenery, 318 U.S. at 88.

   In order to evaluate the propriety of the BRB’s decision to reopen
the record, we must first examine the nature of the proof scheme
established by the Part 727 regulations. A miner who establishes the
presence of legal pneumoconiosis invokes a presumption under the
Part 727 regulations that he was totally disabled by coal-mine-related
pneumoconiosis prior to his death and (if applicable) that his death
was due to this pneumoconiosis.3 20 C.F.R. § 727.203(a)(1) (1999).
   2
     The BRB itself ordered reopening of the record in this case because
it held that Clinchfield had no notice of the ALJ’s intent to enter judg-
ment and thus, no opportunity to request reopening below.
   3
     In contrast, under the more stringent regulations at 20 C.F.R. Part
718, a miner is not entitled to a presumption of disability, but instead
must ordinarily prove that he is totally disabled due to coal mine employ-
ment. 20 C.F.R. § 718.2 (2001). Thus, the application of Part 727 versus
Part 718 in this case determines which party bears the burden of proof
on the determinative issues.
8                   EGGERS v. CLINCHFIELD COAL CO.
This presumption may be rebutted when "the evidence establishes that
the total disability or death of the miner did not arise in whole or in
part out of coal mine employment . . . ." 20 C.F.R. § 727.203(b)(3).
Rebuttal under subsection (b)(3) is established only when an
employer meets its burden to "rule out" any causal relationship
between the miner’s total disability and his coal mine employment.
Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 123 (4th Cir. 1984).
In 1987, the BRB held that one way of meeting this burden is to show
that the miner had no respiratory or pulmonary impairment.4 Marcum
v. Director, OWCP, 11 BLR 1-23 (1987). In Grigg, 28 F.3d at 419,
this Court endorsed the Marcum holding, stating that the "no respira-
tory impairment" approach was simply a means of meeting the
Massey burden of showing that there was no causal relationship
between coal mine employment and a worker’s disability. Id. ("Our
inquiry in any individual case will remain whether Massey is satis-
fied").

                                     B.

   The BRB reopened the record on the basis that this Court’s deci-
sions in Grigg and in Thorn v. Itmann Coal Co., 3 F.3d 713 (4th Cir.
1993),5 "clarified" the Massey standard for rebuttal under subsection
(b)(3) of Part 727.203. (J.A. at 379.) The propriety of this reopening
is the central issue in this appeal. Importantly, the BRB did not state
in its decision reopening the record that the shift from Part 718 to Part
727 justified reopening. J.A. 381. While a dissenting Administrative
Appeals Judge analyzed the shift from Part 718 to Part 727, we must
judge the BRB majority’s reasoning on its own terms.6 In defending
    4
     We refer to this approach as the "no respiratory impairment" approach
for convenience, though it in fact requires proof of no respiratory or pul-
monary impairment. Grigg, 28 F.3d at 416.
   5
     As OWCP notes, Thorn did not modify Massey in a manner relevant
to this case, and it expressly left open the question of the viability of the
"no impairment" approach approved by the BRB in Marcum v. Director,
OWCP, 11 BLR 1-23 (1987).
   6
     Chenery does not bar affirmance of "a decision of less than ideal clar-
ity if the agency’s path may reasonably be discerned." Bowman Trans-
portation, Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286
                    EGGERS v. CLINCHFIELD COAL CO.                        9
the BRB’s reopening of the record, Clinchfield does not discuss the
Grigg basis which the BRB actually provided for its decision, but
instead justifies reopening solely on the basis of the shift from Part
718 to Part 727 in this case. This argument is barred by the Chenery
doctrine. We thus turn to the validity of the BRB’s stated Grigg basis
for reopening the record.

   Our review of the BRB’s decision to reopen the record is, of
course, conducted deferentially under the abuse of discretion stan-
dard. ALJs have wide latitude to resolve procedural issues regarding
the adjudication of black lung cases, and this latitude is imputed to the
BRB in a case such as this one, where a party had no reasonable
opportunity to request that the ALJ reopen the record before the ALJ
issued a decision. See Betty B Coal Co. v. Director, OWCP, 194 F.3d
at 501 (noting the latitude which ALJs possess to reopen the record
in a case). The conclusion that a "clarification" in the law in Grigg
justified a reopening of the record in this case is, however, totally
indefensible, for several reasons. First, the essence of the Grigg hold-
ing was not new law when the original record in this case was devel-
oped; the BRB in Marcum v. Director, OWCP, 11 BLR 1-23 (1987),
had adopted the Grigg "no impairment" holding two years before the
original record closed in this case. Thus, Grigg’s approval of the "no
impairment" approach was already binding BRB precedent when the
original record was developed. Grigg did caution against using the
"no impairment" approach either to apply a whole-man disability
standard or to rebut using statements that an impairment is not dis-

(1974). However, when a court must speculate as to which conclusions
an agency might have implicitly reached, it has reached the boundary of
permissible grounds for affirmance under Chenery. Maryland People’s
Counsel v. FERC, 761 F.2d 768, 775 (D.C. Cir. 1985) (Scalia, Circuit
Judge) (noting that Chenery bars affirmance based on a rationale which
the court could posit as "[t]he only way to make sense of" an agency’s
action). Here, the BRB reasoned only that "case law [e.g. Grigg] issued
subsequent to Massey" had "clarified the legal standard" for Part 727
rebuttal, and "[t]hus . . . manifest injustice would result if [Clinchfield]
was denied the opportunity to have the record reopened." (J.A. at 380).
When the BRB clearly states a reason for its action, it would be specula-
tive at best for this Court to hypothesize an alternate reason which was
argued to the BRB but which the BRB declined to embrace.
10                 EGGERS v. CLINCHFIELD COAL CO.
abling in and of itself — but, as noted in Grigg, the impermissibility
of both approaches in a (b)(3) rebuttal context was already clear. Sec-
ond, the Grigg holding would be a difficult conclusion to escape,
because an employee with no respiratory impairment cannot possibly
be disabled due to black lung disease, a respiratory illness which, if
it "impairs," is a respiratory impairment. Grigg, 416 F.3d at 419 (not-
ing "the facial logic of this reasoning").

   Third, the Grigg holding is irrelevant to this case because there is
not, and never has been, any controversy regarding whether the miner
had a respiratory impairment. Examining testimony in the original
record, Drs. Paranthaman, Maine, Sargent, Robinette, and Fino diag-
nosed respiratory impairment; Dr. Naeye stated only that the miner’s
pneumoconiosis was insufficient to disable him from coal mine work,
a diagnosis that does not rule out respiratory impairment. Clinch-
field’s argument has never been that the miner was not impaired but
rather that his impairment either was not severe enough to be dis-
abling or that it resulted from tobacco use instead of coal dust expo-
sure. Even on remand, Clinchfield could find no doctor willing to
dispute the fact of respiratory impairment, and its doctors affirma-
tively found such an impairment. See, e.g., J.A. 492 (report of Dr.
Fino finding a "disabling respiratory impairment which was due to
cigarette smoking"). Fourth, the BRB did not limit the reception of
new evidence on remand to evidence relevant to the purported Grigg
issue, and the new evidence that caused Clinchfield to prevail on
remand — consisting of evidence that the miner’s respiratory impair-
ment was not caused to any extent by coal dust inhalation — is
entirely unrelated to the Grigg holding because it goes to the cause
of a respiratory impairment and not its existence.

   Thus, the BRB’s stated reason for reopening the record cannot be
sustained. It plainly was improper to reopen the record based upon
this Court’s mere approval (with minor elaborations not relevant here)
of binding BRB precedent in existence when the original record was
developed, especially where the rule at issue is entirely irrelevant to
this case. The BRB’s reopening of the record on this basis is, "under
all the facts and circumstances . . . clearly wrong," and thus consti-
tuted an abuse of discretion. Johnson v. Hugo’s Skateway, 974 F.2d
1408, 1418 (4th Cir. 1992) (en banc). We therefore must vacate the
BRB’s decision to reopen the record as well as the BRB’s affirmance
                   EGGERS v. CLINCHFIELD COAL CO.                   11
of ALJ Kichuk’s decision, which was based on the improperly
reopened record.

                                 III.

   Mrs. Eggers and the OWCP contend that this Court should, in addi-
tion to vacating the BRB’s reopening order and ALJ Kichuk’s deci-
sion, simply remand with instructions to adopt ALJ Rippey’s decision
as to liability. This we cannot do. ALJ Rippey’s decision was vacated
by the BRB on the ground that the record should have been reopened;
the BRB has never ruled on the merits of ALJ Rippey’s conclusion
that the original record failed to establish rebuttal pursuant to Part
727. This Court reviews decisions of the BRB, and review of the mer-
its of ALJ Rippey’s findings based on the original record is improper
in the absence of BRB review. 33 U.S.C.A. § 921(c) (West 2001)
(providing that the Court of Appeals reviews decisions of the BRB,
not decisions of an ALJ which have not been reviewed by the BRB);
cf. Grigg, 28 F.3d at 418 (stating that this Court may not affirm the
BRB on grounds that it has not relied upon). Consequently, we do not
reach the arguments of the parties regarding the propriety of ALJ Rip-
pey’s decision on the merits; and because we vacate ALJ Kichuk’s
decision on the grounds that the record was improperly augmented,
we also do not reach Mrs. Eggers’ challenge to the reasoning of that
decision on the merits. A remand, however, must address the question
of the starting date of benefits because ALJ Rippey’s ruling on that
issue was vacated and ALJ Kichuk did not reach the issue. Thus, there
has been no determination reviewed by the BRB on the merits of the
starting date of benefits.

                                 IV.

   It is unfortunate that we must remand for additional proceedings in
a case such as this one, which has been pending for over two decades.
Black lung benefits claims frequently take an unusually long time to
adjudicate and these delays can serve as a potent source of frustration
both for benefits claimants and for employers who must defend
claims based on evidence that sometimes was developed decades ago.
Yet the reversible error of the BRB’s decision is clear, as is our
inability to reach beyond our proper role by reviewing ALJ decisions
which have not been reviewed on the merits by the BRB. We are thus
12                EGGERS v. CLINCHFIELD COAL CO.
constrained to vacate the BRB’s order reopening the record, as well
as ALJ Kichuk’s decision, and remand for further proceedings in
accordance with this opinion.

                                     VACATED AND REMANDED
