                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-2387


MARY L. FOX, on behalf of Gary N. Fox, deceased,

                Petitioner,

           v.

ELK RUN COAL COMPANY, INCORPORATED; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF
LABOR,

                Respondents.



                               No. 12-2402


ELK RUN COAL COMPANY, INCORPORATED,

                Petitioner,

           v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; MARY L. FOX, on behalf of Gary
N. Fox, deceased,

                Respondents.



On Petitions for Review of Orders of the Benefits Review Board.
(11-0793-BLA; 09-0438-BLA)


Argued:   October 29, 2013                   Decided:   January 3, 2014
Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit
Judges.


Affirmed by published opinion.       Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Judge Floyd joined.


ARGUED: Allan Norman Karlin, Morgantown, West Virginia, for
Petitioner/Cross-Respondent.   Alvin Lee Emch, JACKSON KELLY,
PLLC, Charleston, West Virginia, for Respondent/Cross-Petitioner
Elk Run Coal Company, Incorporated. ON BRIEF: John Cline, Piney
View, West Virginia; Sarah W. Montoro, ALLAN N. KARLIN &
ASSOCIATES, Morgantown, West Virginia, for Petitioner/Cross-
Respondent. Kathy Lynn Snyder, JACKSON KELLY, PLLC, Morgantown,
West Virginia, for Respondent/Cross-Petitioner Elk Run Coal
Company, Incorporated.




                               2
WILKINSON, Circuit Judge:

     Appellant    Mary   Fox   contends      that    Elk   Run   Coal     Company

committed fraud on the court and thereby deprived her husband,

coal miner Gary Fox, of nearly a decade of benefits under the

Black Lung Benefits Act (“BLBA”).              The Benefits Review Board

(“BRB”)   found   that   Elk   Run’s       conduct   was   not    sufficiently

egregious to meet the high bar for a claim of fraud on the court

because it did not amount to an intentional design aimed at

undermining the integrity of the adjudicative process under the

BLBA.     We now affirm and find that Elk Run’s conduct, while

hardly admirable, did not, under clear Supreme Court and circuit

precedent, demonstrate the commission of a fraud upon the court.

See, e.g., Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322

U.S. 238 (1944); Great Coastal Express, Inc. v. Int’l Bhd. of

Teamsters, 675 F.2d 1349 (4th Cir. 1982).



                                    I.

                                    A.

     Pneumoconiosis,     commonly      known    as    “black     lung,”    is     a

progressive   and   irreversible       pulmonary      condition     that        can

afflict those regularly exposed to coal dust.               Mullins Coal Co.

v. Dir., OWCP, 484 U.S. 135, 138 (1987).              In recognition of the

effects of this disease, Congress adopted the BLBA to require

private coal companies to compensate miners and their families.

                                       3
Id. at 138-39.         The BLBA permits coal workers or their surviving

dependents to apply for benefits by filing a claim with the

District Director of the U.S. Department of Labor’s Office of

Workers’      Compensation          Programs          (“Director”).               20    C.F.R.

§§ 725.301-725.423.           In order to award benefits, the Director

must find that the coal worker has pneumoconiosis arising out of

his or her coal mine employment, is totally disabled, and the

pneumoconiosis         substantially            contributed          to     the        worker’s

disability.        Id. § 725.202(d).

       Once the Director makes an initial finding on whether the

claimant is entitled to benefits, either party may request an

evidentiary        hearing    before       an       ALJ.     Id.    §§ 725.401-725.480.

Such   a     request    initiates        an     adversarial         process        under    the

Administrative        Procedure      Act       (“APA”).       Id.       § 725.452(a);       Elm

Grove Coal Co. v. Dir., OWCP, 480 F.3d 278, 283 (4th Cir. 2007)

(finding     that    the     BLBA   incorporates           the     APA’s    administrative

adjudication        procedures);         see     also      U.S.    Dep’t     of     Labor    v.

Triplett, 494 U.S. 715, 733 (1990) (Marshall, J., concurring)

(noting that “the black lung process is highly adversarial”).

To encourage coal workers to pursue their claims with the aid of

counsel, the BLBA includes a provision for reasonable attorney’s

fees    if    the    claimant       is     successful.             30     U.S.C.       § 932(a)

(incorporating 33 U.S.C. § 928(a)).                        This adversarial posture

between      the    parties    remains         in    the   event     that    either      party

                                                4
appeals the ALJ’s ruling to the BRB, 20 C.F.R. § 725.481, as

well as in any subsequent appeals to the circuit covering the

state in which the claimant allegedly contracted pneumoconiosis,

33 U.S.C. § 921(c).

                                           B.

       Gary Fox worked in West Virginia as a coal miner for over

30 years before his death from coal worker’s pneumoconiosis in

2009. 1        X-rays    taken       of   his    chest     in   1997    revealed      an

unidentified mass in his right lung.                   In 1998, a pathologist in

West       Virginia    named   Dr.    Gerald     Koh     concluded     from    surgical

samples that, among other things, the mass was an “inflammatory

pseudotumor,” but did not diagnose pneumoconiosis.                      Nonetheless,

Fox filed a claim in 1999 for benefits under the BLBA which the

Director granted in early 2000.                 Because Fox was employed by Elk

Run at the time of his claim, Elk Run exercised its right under

the BLBA to request a hearing before an ALJ.

       Prior to the hearing, Elk Run obtained the pathology slides

from   Fox’s     1998    surgical      procedure    and    provided     them    to   two

additional pathologists: Dr. Richard Naeye and Dr. P. Raphael

Caffrey.        Both    pathologists       wrote    reports     summarizing       their

conclusions.           Elk   Run   also    requested       opinions     from    several

       1
       Gary Fox’s surviving spouse and successor-in-interest,
Mary Fox, took over his claim after his death and all references
to the appellant as “Fox” after his passing are to her.



                                            5
radiologists and submitted them, along with Dr. Koh’s report but

not Dr. Naeye’s or Dr. Caffrey’s, to four pulmonary specialists.

The four pulmonologists concluded that, based on the evidence

available     to      them,   Fox    likely       did   not    have      coal    worker’s

pneumoconiosis at that time.

      The evidentiary hearing occurred on September 19, 2000, at

which   Fox      appeared     pro    se    and    Elk   Run    was    represented        by

counsel.         The    ALJ   informed          Fox   that    he   had    a     right   to

representation and, when Fox responded that he had not been able

to   find   an     attorney,     the      ALJ    confirmed     his    competency        and

willingness      to    proceed      without      counsel.      (Fox      had,    however,

procured an attorney to represent him in his concurrent West

Virginia worker’s compensation claim related to pneumoconiosis).

During the hearing, the ALJ admitted into the record the reports

of Dr. Koh, the radiologists, and the pulmonologists, along with

additional exhibits offered by Elk Run.                       Fox offered only his

own testimony.         Elk Run did not submit the reports of Dr. Naeye

or Dr. Caffrey, nor did it disclose their existence to Fox or

the ALJ.      The ALJ denied Fox’s claim on January 5, 2001, finding

that Fox failed to show he had pneumoconiosis or that he was

totally disabled due to pneumoconiosis.                  Fox did not appeal.

      Fox retained counsel and filed a new claim on November 8,

2006.   The Director again found him eligible for benefits and

Elk Run once more requested an evidentiary hearing.                             But this

                                            6
time Fox, through his attorney, conducted vigorous discovery and

requested that Elk Run hand over the 1998 pathology slides and

disclose additional documents and reports pertaining to Fox’s

medical condition.           After some foot dragging, Elk Run admitted

liability      for   Fox’s   2006   claim    and   disclosed     the    slides   and

several documents to Fox, including the pathology reports of Dr.

Naeye    and   Dr.   Caffrey.       Recognizing     that   the   BLBA     bars   any

entitlement to benefits before the ALJ’s 2001 judgment became

final, 20 C.F.R. § 725.309(c)(6), Fox moved to set aside that

judgment, contending that Elk Run had committed fraud on the

court because it had not disclosed the Naeye and Caffrey reports

to its expert pulmonologists.

        On July 20, 2011, the ALJ found that the Naeye and Caffrey

reports    diagnosed     “complicated       pneumoconiosis,”     J.A.     416,   and

thus “clearly contradicted Dr. Koh’s finding of an inflammatory

pseudotumor,” J.A. 427.          The ALJ then determined that Elk Run’s

failure to disclose the Naeye and Caffrey reports to its other

expert    witnesses     tainted     their    conclusions     and       that,   while

“perhaps initially not concocted as such,” J.A. 427, Elk Run’s

“actions, taken as a whole, constitute a scheme to defraud,”

J.A. 429.       Dismissing Elk Run’s arguments that its attorneys

were not defrauding the court but rather zealously representing

their client, the ALJ ruled that Elk Run had committed fraud on



                                        7
the court, set aside the 2001 judgment, and awarded Fox benefits

dating back to January 1997.

        On appeal, the BRB accepted the ALJ’s factual findings, but

held that Elk Run’s “conduct did not rise to the level of fraud

on the court” because Elk Run “did not engage in a deliberate

scheme to directly subvert the judicial process.”                              J.A. 444.

Because Elk Run had admitted liability for Fox’s 2006 claim, the

BRB held that Fox was entitled to benefits beginning in June

2006.     One member of the BRB panel dissented, writing that Elk

Run’s conduct      constituted        fraud       on    the    court   because    it   had

failed to disclose all the relevant medical evidence to its own

experts.



                                         II.

        Fox asks this court to set aside the ALJ’s 2001 judgment,

which     would   have   the        effect       of    moving    the    onset    of     her

entitlement to benefits under the BLBA from June 2006 to January

1997.     She claims that the judgment was fraudulently procured

because,    although     Elk    Run     knew      that     the    Naeye   and    Caffrey

reports     diagnosed      her        husband          with      pneumoconiosis,         it

intentionally     failed       to    disclose          those    reports   to     its   own

experts and later relied on the conclusions of those experts to

controvert Fox’s 1999 claim that he had pneumoconiosis.                               While

Elk Run’s conduct over the course of this litigation warrants

                                             8
nothing approaching judicial approbation, we are unable to say

that it rose to the level of fraud on the court.

     The   standard        of   review    in   cases    under    the   Black     Lung

Benefits   Act     is    well   settled.       We   sustain     an   ALJ’s   factual

findings if there is “substantial evidence” on the record to

support them.       Harman Min. Co. v. Dir., OWCP, 678 F.3d 305, 310

(4th Cir. 2012).           Fox maintains that, whereas the BRB should

have affirmed the ALJ’s ruling on substantial evidence grounds,

it instead improperly held that the ALJ erred “as a matter of

law.”   J.A. 444.         However, the operative facts here are simply

not disputed and only the application of the fraud on the court

doctrine is at issue.           That issue is one of law, which we review

de novo.     See Westmoreland Coal Co. v. Cox, 602 F.3d 276, 282

(4th Cir. 2010).

                                          A.

     Fraud   on     the    court   is    not   your    “garden-variety       fraud.”

George P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d 44, 48

(1st Cir. 1995).           Ordinarily, when a party believes that its

opponent     has        obtained    a     court     ruling      by     “fraud”    or

“misrepresentation,” it may move for relief under Federal Rule

of Civil Procedure 60(b)(3).              Litigants have one year following

the final judgment in which to make a Rule 60(b)(3) motion.

Fed. R. Civ. P. 60(c)(1).                As we recognized in Great Coastal

Express, Inc. v. International Brotherhood of Teamsters, this

                                           9
one year limit balances the competing interests of relieving an

aggrieved         party   from      the      hardships      of    an   unjustly   procured

decision      against        the      deep    “[r]espect         for   the    finality   of

judgments . . . engrained in our legal system.”                           675 F.2d 1349,

1354-55 (4th Cir. 1982).                  Therefore, after a year, the public’s

powerful      interest        in       leaving       final       judgments     undisturbed

generally triumphs and “ordinary” fraud will not suffice to set

aside a ruling.           Id. at 1355.

      But, as often happens with a rule, there is an exception.

The savings clause in Rule 60(d)(3) permits a court to exercise

its inherent equitable powers to obviate a final judgment after

one year for “fraud on the court.”                      The Supreme Court addressed

this doctrine in Hazel-Atlas Glass Co. v. Hartford-Empire Co.,

when it set aside a fraudulently obtained ruling by finding that

it   was    the     product    of     one     party’s    “deliberately        planned    and

carefully         executed         scheme”      that     severely        undermined      the

“integrity        of   the    judicial        process.”          322   U.S.   238,   245-46

(1944).      The Court held that ordinary cases of fraud would not

suffice to violate the “deep rooted policy in favor” of finality

but that, on the facts before it, the aggrieved party could not

“have      been    expected      to    do     more   than    it    did   to   uncover    the

fraud.”      Id. at 244, 246.                Moreover, the harm of the fraud in

Hazel-Atlas was so broad that it “involve[d] far more than an

injury to a single litigant,” but was rather a “wrong against

                                                10
the institutions set up to protect and safeguard the public,

institutions       in   which     fraud    cannot          complacently   be     tolerated

consistently       with   the     good    order       of    society.”      Id.    at   246.

Thus, not only must fraud on the court involve an intentional

plot to deceive the judiciary, but it must also touch on the

public interest in a way that fraud between individual parties

generally does not.

     We have likewise underscored the constricted scope of the

fraud on the court doctrine.                  In Great Coastal, we held that

fraud   on   the    court    is    a     “nebulous         concept”    that    “should    be

construed    very       narrowly”      lest      it    entirely       swallow     up   Rule

60(b)(3).     675 F.2d at 1356.               We stressed that this doctrine

should be invoked only when parties attempt “the more egregious

forms of subversion of the legal process . . . , those that we

cannot necessarily expect to be exposed by the normal adversary

process.”      Id.      at   1357.        Even    the       “perjury    and     fabricated

evidence” present in Great Coastal, which were “reprehensible”

and unquestionable “evils,” were not adequate to permit relief

as fraud on the court because “the legal system encourages and

expects litigants to root them out as early as possible.”                                Id.

Instead, the doctrine is limited to situations such as “bribery

of a judge or juror, or improper influence exerted on the court

by an attorney, in which the integrity of the court and its



                                            11
ability to function impartially is directly impinged.”                            Id. at

1356.

      In succeeding cases we have emphasized this circumscribed

understanding of fraud on the court.                   In Cleveland Demolition

Co.   v.   Azcon    Scrap    Corp.,    we    held    that    fraud   on     the    court

involves “corruption of the judicial process itself” and thus

the   doctrine     cannot    support    allegations         involving     a   “routine

evidentiary      conflict.”      827        F.2d    984,    986   (4th    Cir.     1987)

(internal    quotation       marks    omitted).        To    hold    otherwise,       we

found, would “seriously undermine[] the principle of finality”

by permitting “parties to circumvent the Rule 60(b)(3) one-year

time limitation.”           Id. at 987.          Later, in In re Genesys Data

Technologies, Inc., we recognized that “[c]ourts and authorities

agree that fraud on the court must be narrowly construed” or it

would “subvert the balance of equities” contained within Rule

60(b)(3).     204 F.3d 124, 130 (4th Cir. 2000) (internal quotation

marks omitted).        “Because the power to vacate a judgment for

fraud upon the court is so free from procedural limitations, it

is limited to fraud that seriously affects the integrity of the

normal process of adjudication.”                 Id. (internal quotation marks

omitted).      We    therefore       held    that    “[f]raud     between     parties”

would not be fraud on the court, “even if it involves [p]erjury

by a party or witness.”         Id. (internal quotation marks omitted).



                                            12
                                                  B.

      Proving fraud on the court thus presents, under Supreme

Court and circuit precedent, a very high bar for any litigant.

Fox has not met that high standard in this case.                                              Elk Run’s

alleged      fraud     does       not     directly            impact         the     integrity        and

workings of the black lung benefits process in the way that

Hazel-Atlas and Great Coastal require.                              Fox does not allege that

Elk Run bribed or otherwise improperly influenced any officials

involved in the benefits process, nor does she claim that Elk

Run     encouraged         or    conspired          with       its      witnesses          to    suborn

perjury.      Rather, she argues that Elk Run’s nondisclosure of

certain      pathology           reports          to     its        own       experts         “instills

uncertainty and cynicism” into the black lung benefits system.

But   that    is     not    harmful          enough      to        be   a    “wrong      against      the

institutions       set      up     to     protect            and    safeguard           the     public.”

Hazel-Atlas, 322 U.S. at 246.                          Indeed, if alleged “uncertainty

and cynicism” were the standard for fraud on the court, we find

it    difficult       to        imagine       how       any        claim       of       fraud    in    an

adjudicatory       proceeding           would          not    fall          under    its      extensive

canopy.       Every        litigant          could       be    expected            to    inflate      its

personal      loss     into       an    alleged          systemic            harm.         Elk     Run’s

nondisclosure simply does not “amount[] to anything more than

fraud    involving         injury       to    a     single          litigant.”             Gleason    v.

Jandrucko, 860 F.2d 556, 560 (2d Cir. 1988).

                                                  13
       Conduct      that    is      not   exemplary         need     not    undermine     the

“integrity of the court and its ability to function impartially”

within the meaning of “fraud on the court.”                          Great Coastal, 675

F.2d at 1356.         The adversary process exists because it permits

each   side    to     present       its   own      case   as    well   as    to   test    its

opponent’s in order to expose vulnerabilities of every sort and

variety.      It is, to some extent, a self-policing mechanism.                           The

relevant provision of the APA contains no requirement that a

party present the most probative evidence in its possession;

instead, it is permitted to offer any evidence it would like so

long as that evidence is relevant.                    5 U.S.C. § 556(d) (“Any oral

or documentary evidence may be received, but the agency as a

matter of policy shall provide for the exclusion of irrelevant,

immaterial, or unduly repetitious evidence.”).                         Therefore, while

the    ALJ    found     the      Naeye    and       Caffrey      opinions     were    “more

probative”     than     Dr.      Koh’s,      J.A.    428,      Elk   Run    was   under    no

obligation to advance those reports as evidence because someone

else may believe them superior.

       Thus it falls to each party to shape and refine its case,

subject of course to the risk that its adversary will discredit

it.    One elementary component of the adversary system is cross-

examination,        which     the    Supreme        Court      has   recognized      is   the

“greatest     legal     engine        ever      invented       for   the    discovery      of

truth.”      California v. Green, 399 U.S. 149, 158 (1970) (internal

                                              14
quotation marks omitted).            Cross-examination helps to safeguard

against the ALJ’s concern that, if parties were free to withhold

probative     medical      evidence       from        their    experts,        “an       expert

medical     opinion     could       never        be    accepted         as     a     reliable

diagnosis.”        J.A. 430.        A party relying on weak evidence to

sustain its case runs the risk that its experts will crumble

upon cross-examination or otherwise be impeached by the opposing

party.      The    presence    of   that     deterrent         means,        however,      that

routine evidentiary disputes as this cannot clear the high bar

for an action for fraud on the court.                    Cleveland Demolition, 827

F.2d at 986.

      In   fact,    this   case     illustrates         the     principle.           The    ALJ

recognized that Elk Run’s case in the 1999 claim was vulnerable

when it found that Elk Run “built its case around Dr. Koh’s

pathology report.”           J.A. 428.           Fox had the right to cross-

examine Dr. Koh regarding his qualifications and conclusions.

5 U.S.C. § 556(d) (“A party is entitled to . . . conduct such

cross-examination       as    may    be     required          for   a    full      and     true

disclosure of the facts.”).               He had the right to cross-examine

Elk   Run’s   other     experts     to    test        their    understanding          of   and

reliance on Dr. Koh’s report.               He had the right to question the

apparent lack of additional pathology reports.                          He had the right

to present a contradictory medical opinion from a pathologist of

his own choosing.          That he did none of those things is not so

                                            15
much an indictment of the adversary system as it is a statement

that he did not fully avail himself of it.

      Fox   admits      that    an    attorney     experienced        in   black       lung

claims would have recognized that “something was fundamentally

wrong” with how Elk Run presented its case as to Fox’s 1999

claim.      Appellant’s Resp. 16.                Indeed, once Fox retained an

attorney    for     his   2006    claim,     he    pursued     discovery         and    was

successful in obtaining the pathology reports and 1998 pathology

slides.     Elk Run’s alleged misconduct could have been “exposed

by the normal adversary process.”                  Great Coastal, 675 F.2d at

1357.     Our legal system therefore expected Fox to uncover Elk

Run’s conduct during the adjudication of Fox’s 1999 claim or, if

it amounted to Rule 60(b)(3) fraud, at most one year after the

2001 judgment became final.                George P. Reintjes, 71 F.3d at 49

(holding that even perjury is “a common hazard of the adversary

process     with    which      litigants     are    equipped     to    deal      through

discovery and cross-examination and, where warranted,” a Rule

60(b)(3) motion).

      Fox    contends     that       the   black    lung   benefits        process      is

somehow different from an ordinary adversarial procedure and, in

effect, urges us to alter that process by finding that Elk Run

had   a   duty     to   share    with      its   experts   all    of       the   medical

information it had obtained.                To that end, the ALJ found that

Elk Run had a duty to “provide accurate evidence to its expert

                                            16
witnesses.”         J.A.     430.       But    that    duty--and      the     judicial

supervision that would inescapably go with it--would carry ALJs

far afield from their role as neutral arbiters.                       See Underwood

v. Elkay Min., Inc., 105 F.3d 946, 949 (4th Cir. 1997) (finding

that the ALJ in a BLBA proceeding is the “trier of fact” charged

with “evaluat[ing]” and “weigh[ing] the evidence”) superseded on

other grounds as recognized in Elm Grove, 480 F.3d at 291.                          Any

duty    imposed     upon   a    party   to     furnish      its   expert     witnesses

certain documents would improperly impinge on that party’s right

to develop its own evidence, handle its own experts, and present

its own case.        See, e.g., Hickman v. Taylor, 329 U.S. 495, 511

(1947) (holding in the context of the work product privilege

that    the    adversary       system   requires       a    party’s    attorney     be

permitted to “assemble information, sift what he considers to be

the    relevant     from     the    irrelevant    facts,       prepare      his   legal

theories      and   plan     his    strategy     without      undue   and     needless

interference”).        Fox’s proposed duty would launch an infinite

number of new challenges by parties alleging their opponents’

breach of the duty, thereby thrusting judges deep into the heart

of the adversary process and the attorney-client relationship.

       What Fox requests is something akin to a civil Brady rule,

where    parties     would     be    obligated    to       disclose   or     at   least

identify any evidence helpful to their opponent regardless of

whether it is privileged.             See Brady v. Maryland, 373 U.S. 83,

                                         17
86 (1963) (finding that due process requires the government to

disclose to a criminal defendant information favorable to his

defense).     But courts have only in rare instances found Brady

applicable in civil proceedings, mainly in those unusual cases

where the potential consequences “equal or exceed those of most

criminal convictions.”         Demjanjuk v. Petrovsky, 10 F.3d 338, 354

(6th Cir. 1993); see also Brodie v. Dep’t of Health and Human

Servs., No. 12-1136 (RMC), slip op. at 9-10 (D.D.C. June 27,

2013)    (examining    cases    and   declining        to    apply    Brady     in    an

administrative hearing).          We see no reason to expand Brady to

this    administrative       adjudication.        In    a    criminal    case,       the

government’s    duty     to    disclose       under    Brady   arises        from    the

obligation of the prosecutor not simply to convict, but to see

that justice is done.         United States v. Agurs, 427 U.S. 97, 110-

11 (1976).     The civil context is not analogous.                       There, the

basic duty of an attorney to his or her client is not offset by

the countervailing duty a government prosecutor has to exercise

in the interest of justice his or her awesome and extraordinary

powers.

       Fox points out that her husband proceeded pro se before the

administrative tribunal in his 1999 claim, but that point, while

appealing, carries only so far.               Fox was instructed of his right

to an attorney who would receive compensation if his claim was

successful.     He     had    retained    counsel      for   his     state   benefits

                                         18
claim, demonstrating that he knew the advantages of professional

representation.       It is true that Fox’s pro se presentation of

his 1999 claim did not match the counselled presentation of his

2006 claim.        But the narrow confines of fraud on the court

doctrine have never permitted claimants to relitigate old claims

they have lost, simply because a better prior case presentation

might have resulted in an earlier success.              Finally, courts are

not at liberty to exceed the parameters of what Congress has

provided.      Of course, Congress might have provided counsel to

miners under the BLBA at public expense, but it did not do so.

Instead, Congress left to the practiced judgment of attorneys

which claims for benefits they thought were most likely to be

successful.       And in doing so, Congress adopted within the BLBA

the dynamics of the adversary process.             See Triplett, 494 U.S.

at 733 (Marshall, J., concurring) (“Because an operator faces

the prospect of paying significant awards, it is often willing

to    pay   substantial   legal   fees    to   defend   against   black   lung

claims.”); Treadway v. Califano, 584 F.2d 48, 49 (4th Cir. 1978)

(holding that in its 1972 amendments to the BLBA, Congress made

the    benefits    adjudication   process      “adversarial”   because    “the

burden of the payment might be imposed upon an individual coal

operator or upon the industry”).           Recognizing Fox’s claim would

alter Congress’s adversary design beyond our authority to do so.



                                     19
     Elk Run insists it has done nothing wrong and that it has

proceeded properly at every turn.             It maintains that the medical

evidence   in     general   and    Dr.       Naeye’s    pathology      report    in

particular are more ambiguous than Fox makes them out to be.                     It

further notes that no party is bound by every conclusion of the

experts it may hire.        See Horn v. Jewell Ridge Coal Corp., 6

Black   Lung    Rep.   (Juris)    1-933,      1-937    (Ben.   Rev.    Bd.   1984).

Finally, it contends that it did not have any intent to defraud

the court by declining to disclose the reports of Dr. Naeye and

Dr. Caffrey because, as non-testifying consulting experts, their

reports    were    protected      by    the     work    product       privilege--a

protection that would have been lost if the reports had been

provided to Elk Run’s testifying experts.                  See Elm Grove, 480

F.3d at 303 n.25.        We see no reason to address these matters

when a plain, narrow disposition is available.                    We bestow no

blessing and place no imprimatur on the company’s conduct, other

than to hold that it did not, under a clear chain of precedent,

amount to a fraud upon the court.



                                       III.

     For the foregoing reasons, the judgment of the Benefits

Review Board is affirmed.



                                                                          AFFIRMED

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