In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3222

OLD BEN COAL COMPANY,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
and JAMES E. HILLIARD,

Respondents.

Petition for Review of a Decision and
Order of the Benefits Review Board,
United States Department of Labor.

ARGUED MAY 15, 2001--DECIDED May 31, 2002


  Before RIPPLE, MANION and DIANE P. WOOD,
Circuit Judges.

  RIPPLE, Circuit Judge. Old Ben Coal
Company ("Old Ben") petitions this court
to review a decision of the Benefits
Review Board ("BRB" or "the Board")
upholding an award of benefits under the
Black Lung Benefits Act, 30 U.S.C.
sec.sec. 901-945, to the claimant, James
A. Hilliard. For the reasons set forth in
the following opinion, the petition is
granted, and the decision of the BRB is
reversed.

I

BACKGROUND

  This case, like so many other black lung
cases, has a long and tortuous history.
James Hilliard filed for black lung
benefits on November 6, 1990. A claims
examiner at the Department of Labor
("DOL") initially denied the claim on
January 30, 1991. After receiving
additional information, however, the DOL
reversed its decision and awarded
benefits. The claim proceeded to the
Office of Administrative Law Judges for
hearing. A hearing took place before
Administrative Law Judge ("ALJ") Glenn R.
Lawrence on June 9, 1992, and, on October
30, 1992, ALJ Lawrence issued a decision
and order granting benefits. In issuing
the award, ALJ Lawrence resolved the
discrepancies in x-ray readings by
employing the "true doubt" rule,
whichrequired that the hearing officer,
when faced with "equally probative but
contradictory evidence[,] . . . resolve
the issue in claimant’s favor." App. at
3.

  Old Ben initially appealed ALJ
Lawrence’s decision, but later requested
dismissal of the appeal to pursue a
modification of the award. The case was
therefore remanded to the DOL./1 During
the modification proceedings, Old Ben
submitted a deposition transcript of Dr.
Glennon Paul, as well as pulmonary
function studies belonging to a patient
other than Mr. Hilliard. After examining
the evidence, the district director
denied modification, and Old Ben
requested a hearing.

  On May 12, 1994, the case returned to
the Office of Administrative Law Judges
for a hearing. A new ALJ/2 issued an
order to show cause why the case should
not be decided on the record. The record
discloses no response by Old Ben. Indeed,
no further activity was recorded on the
case until April 22, 1995, when Old Ben
informed the ALJ that Mr. Hilliard had
passed away. Old Ben therefore requested
a remand in anticipation of a survivor’s
claim. On May 25, 1995, the ALJ granted
that request.

  Eventually, the district director
informed Old Ben’s counsel that no
survivor’s claim had been filed, and the
case returned to the Office of
Administrative Law Judges. ALJ Thomas
Burke was assigned the case and sent a
notice of hearing to the parties. Mr.
Hilliard’s estate moved to have the
modification petition decided on the
record. ALJ Burke received no objection
from Old Ben and therefore cancelled the
hearing. He then denied the request for
modification and explained that, even
without the benefit of the discredited
"true doubt" rule,/3 Mr. Hilliard’s
estate still had established
pneumoconiosis and was entitled to
benefits. Specifically, ALJ Burke was
influenced by the fact that
pneumoconiosis was listed as a cause of
death thus "suggesting," according to the
ALJ, "that its existence was confirmed on
autopsy." App. at 12.
  To further complicate matters, after ALJ
Burke had issued his decision, Old Ben
discovered that its lawyer had abandoned
his law practice and had allowed
multitudes of cases to go unattended. New
counsel assumed responsibility for the
representation and appealed the ALJ’s
decision. Again, however, Old Ben
requested that the appeal be dismissed
and that the case be remanded to the
district director so that a request for
modification could be processed. Mrs.
Hilliard filed no objection, and the BRB
granted the request on July 14, 1997.

  While the case was pending before the
DOL, Old Ben requested that Mrs. Hilliard
sign an authorization to allow Old Ben’s
physicians to view Mr. Hilliard’s autopsy
slides. Mrs. Hilliard, however, refused
to sign the authorization, and the DOL
determined that Mrs. Hilliard was not
under any obligation to do so. Old Ben
again requested a hearing, and the DOL
returned the case to the Office of
Administrative Law Judges.

  The case then was assigned to yet
another ALJ, Linda Chapman. Prior to the
hearing, Old Ben requested that ALJ
Chapman order Mrs. Hilliard to sign the
authorization allowing it access to the
autopsy slides. ALJ Chapman denied the
request. She held that

Mrs. Hilliard is under no duty to
"cooperate" with the Employer in its
attempt to have the award of benefits
reversed. The record clearly reflects
that Wayne Reynolds, the Employer’s
attorney at the time this matter was
before Judge Burke, was aware of Mr.
Hilliard’s death; equally clearly, the
autopsy report that the Employer now
seeks was also available at that time.
There is no indication in the record that
the Employer, through Mr. Reynolds, ever
sought to obtain this report or make it
available to Judge Burke.

App. at 14. ALJ Chapman also denied a
subsequent request to reconsider her
decision.

  After a hearing, ALJ Chapman ruled
against Old Ben on its substantive
application. In her order, the ALJ first
recited the standard for determining
whether a modification petition should be
granted:

In reviewing a petition for modification
based on a mistake of fact, the Supreme
Court has stated that all evidence of
record should be reviewed in determining
whether a mistake in a determination of
fact has been made, and that the
factfinder has "broad discretion to
correct mistakes of fact, whether
demonstrated by wholly new evidence,
cumulative evidence, or merely further
reflection on the evidence initially
submitted.["]

App. at 33 (quoting O’Keeffe v. Aerojet-
General Shipyards, Inc., 404 U.S. 254,
257 (1971)). However, "[i]nitially," she
stated, "it is appropriate to consider
whether this claim should be reopened at
all. Modification is discretionary, not
automatic: [T]he statute and implementing
regulations provide that the factfinder
’may’ reconsider the terms of an award or
denial of benefits." App. at 33. She
further stated that "[i]n deciding
whether to reopen a case under 33 U.S.C.
sec. 922, the court must balance the need
to render justice against the need for
finality in decision making." Id.
(internal quotation marks and citations
omitted). According to ALJ Chapman,

[a]n allegation of mistake should not be
allowed to become a back door route to
retrying a case because one party thinks
he can make a better showing on the
second attempt. As the Supreme Court made
clear in its reference to the legislative
explanation for the 1934 broadening of
the grounds for reopening under sec. 22,
the basic criterion is whether reopening
will "render justice" under the Act.

App. at 33 (internal quotation marks and
citations omitted).

  ALJ Chapman then determined that
modification in the present action would
not render justice under the Act:

  The modification provisions of the Act
are not intended to allow a party to lay
back, and, having received an adverse
decision, take a second (or in this case,
a third) bite at the apple by gearing up
and presenting evidence that it could
have presented at the first hearing on
the claim. To do so would allow the
Employer, under the guise of an
allegation of mistake, to retry its case
simply because it feels that it can make
a better showing the next time around.

  . . . To do so would make mincemeat of
any principles of finality, and force a
Claimant who has received afavorable
decision to defend against the superior
resources of an Employer who could
conceivably come back year after year
with "new" medical opinions, until the
sheer weight of those opinions, all of
which could have been presented during
earlier proceedings, forced a decision in
the Employer’s favor. Surely that
constitutes piecemeal litigation and
forum shopping at its worst.

App. at 35. Consequently, the ALJ
declined to reopen the award. The BRB
upheld the ALJ’s decision, and Old
Benappealed to this court.

II

DISCUSSION/4

A.   Standard of Review

  "Although [Old Ben] appeals the final
decision of the Board, our task is to
review the ALJ’s decision which the Board
affirmed . . . ." Arnold v. Peabody Coal
Co., 41 F.3d 1203, 1206 (7th Cir. 1994).
We do so under a deferential standard of
review: We will not overturn the ALJ’s
decision if it is rational, supported by
substantial evidence and consistent with
governing law. See Peabody Coal Co. v.
OWCP, 116 F.3d 207, 211 (7th Cir. 1997).
However, a failure by the ALJ to apply
the correct legal standard presents a
question of law which we review de novo.
Id.; see also Crowe v. Director, OWCP,
226 F.3d 609, 612 (7th Cir. 2000).
Furthermore, although we defer to the
determination of an ALJ regarding a
particular case, it is the DOL’s
interpretation, not the ALJ’s or the
BRB’s interpretation, to which "we owe
the usual deference that courts give
agencies’ interpretations of their own
regulations or governing statutes."
Sahara Coal Co. v. OWCP, 946 F.2d 554,
557 (7th Cir. 1991).

B. Standard for Evaluating Modification
Petitions

  Both Old Ben and the DOL maintain that
the ALJ applied the wrong standard in
determining whether the matter of Mr.
Hilliard’s benefits should be reopened.
These parties urge that the governing
statute requires a broader view of
reopening than that adopted by the ALJ.
Had the proper standard been applied,
they maintain, the ALJ would have been
required to reopen the matter and
reevaluate the award of benefits.

  We start, as we do with any statutory
interpretation issue, with the language
of the statute. See Condo v. Sysco Corp.,
1 F.3d 599, 603 (7th Cir. 1993) ("The
first step in determining the intent of
Congress is to examine the plain language
of the statute."). Section 22 of the
Longshore and Harbor Workers’
Compensation Act, as incorporated by sec.
422(a) of the Black Lung Benefits Act, 30
U.S.C. sec. 932(a), provides in relevant
part:

  Upon his own initiative, or upon the
application of any party in interest . .
. on the ground of a change in conditions
or because of a mistake in a
determination of fact by the deputy
commissioner, the deputy commissioner
may, at any time prior to one year after
the date of the last payment of
compensation, whether or not a
compensation order has been issued, or at
any time prior to one year after the
rejection of a claim, review a
compensation case . . . and . . . issue
a new compensation order which may
terminate, continue, reinstate, increase,
or decrease such compensation, or award
compensation.

33 U.S.C. sec. 922. Section 22,
therefore, sets forth the circumstances
under which an ALJ may modify an award: a
change in circumstances or mistake of
fact.

  Both of these terms have been
interpreted broadly by the Supreme Court.
We look first to Banks v. Chicago Grain
Trimmers Association, 390 U.S. 459
(1968). In Banks, a surviving widow had
filed a first compensation claim based on
a work-related injury her husband had
suffered; this initial claim was denied.
After discovering an eyewitness to a
second work-related injury, the widow
filed a new compensation action and
alleged that her husband’s death resulted
from this second injury. The court of
appeals held that the second compensation
action was barred by the doctrine of res
judicata. Before the Supreme Court, the
DOL urged affirmance and argued that "’a
mistake in a determination of fact’ in
sec. 22 refers only to clerical errors
and matters concerning an employee’s
disability, not to matters concerning an
employer’s liability." Id. at 462. The
Supreme Court reversed. The Court stated
that "[i]n the absence of persuasive
reasons to the contrary, we attribute to
the words of a statute their ordinary
meaning, and we hold that the
petitioner’s second compensation action,
filed a few months after the rejection of
her original claim, came within the scope
of sec. 22." Id. at 465 (footnote
omitted). Consequently, a modification
action could be instituted seeking
reconsideration of the ultimate question
of fact--the employer’s liability.

  O’Keeffe v. Aerojet-General Shipyards,
Inc., 404 U.S. 254 (1972), also employed
a broad reading of sec. 22. In that case,
as in Banks, a claimant’s initial
compensation claim had been denied. The
claimant, however, moved to reopen the
case and, on the basis of the testimony
by the employee’s personal physician, the
DOL reevaluated the determination and
awarded benefits. The Fifth Circuit held
"that in the absence of changed
conditions or new evidence clearly
demonstrating mistake in the initial
determination, the statute simply does
not confer authority upon the Deputy
Commissioner to receive additional but
cumulative evidence and change his mind."
Id. at 254-55 (internal citations and
quotation marks omitted). The Supreme
Court reversed. The Court held that
"[n]either the wording of the statute nor
its legislative history supports this
narrowly technical and impractical
construction." Id. at 255 (internal
quotation marks and citations omitted).
The Court explained that, at one time,
the statute only had allowed for
modification on the ground of a change in
conditions; however, it was modified in
1934 "expressly to broaden the grounds on
which a deputy commissioner can modify an
award . . . when changed conditions or a
mistake in a determination of fact makes
such modification desirable in order to
render justice under the act." Id. at 255
(internal quotation marks and citations
omitted). According to the Court, "[t]he
plain import of this amendment was to
vest a deputy commissioner with broad
discretion to correct mistakes of fact,
whether demonstrated by wholly new
evidence, cumulative evidence, or merely
further reflection on the evidence
initially submitted." Id. at 256.
Consequently, after O’Keeffe, not only
could modification be used to challenge
the ultimate determination of liability,
see Banks, 390 U.S. at 465, but
modification also could take place
without submission of "new" evidence.

  Finally, in Metropolitan Stevedore Co.
v. Rambo, 515 U.S. 291, 296 (1995), the
Supreme Court viewed the "change of
conditions" language in sec. 22 with the
same breadth as it had "a mistake in a
determination of fact." In that case, a
claimant initially had been awarded
benefits. He then underwent re-training,
and his earnings increased to a level
beyond that which he had earned prior to
his debilitating injury. The employer,
therefore, moved to modify the award
based on a change in conditions. The
Supreme Court agreed that the change in
earning capacity qualified as a change in
conditions under the Act. The Court
stated: "The use of ’conditions,’ a word
in the plural, suggests that Congress did
not intend to limit the bases for
modifying awards to a single condition,
such as an employee’s physical health."
Id. at 296. Consequently, the Court held
that "a change in conditions" was broad
enough to encompass a change in earning
capacity.

  Not only have the substantive criteria
for modification been interpreted
broadly, the time line for
requestingmodification also is generous.
Section 22 allows for a modification
petition to be filed at any time within a
year of a claim’s rejection; the statute
contains no limit on the number of
modification petitions a party may file.
See 33 U.S.C. sec. 922. Furthermore,
courts have interpreted "rejection of a
claim" to include rejection of a
modification petition, thus allowing
successive modification petitions as long
as they meet the one-year requirement.
See Betty B Coal Co. v. Director, OWCP,
194 F.3d 491, 500 (4th Cir. 1999);/5
see also Keating v. OWCP, 71 F.3d 1118,
1120 (3d Cir. 1995) (rejecting ALJ’s
characterization of complainant’s
multiple filings as forum shopping).
Indeed, one circuit has concluded that
"the ’principle of finality’ just does
not apply to Longshore Act and black lung
claims as it does in ordinary lawsuits."
R.J. Jessee v. Director, OWCP, 5 F.3d
723, 725 (4th Cir. 1993). Moreover, the
Third Circuit has noted that "[t]he fact
that [a party] did not specifically plead
a mistake of fact or change in conditions
in his second claim is irrelevant"
because

[n]either sec. 22 of the Longshore Act
nor 20 C.F.R. sec. 725.310[/6] requires
a claimant to plead such a ground. Once a
request for modification is filed, no
matter the grounds stated, if any, the
deputy commissioner has the authority, if
not the duty, to reconsider all the
evidence for any mistake of fact or
change in conditions.
Consolidated Coal Co. v. Worrell, 27 F.3d
227, 230 (3d Cir. 1994).

  In light of the language, structure and
case law interpreting sec. 22, the DOL
sees sec. 22 as articulating a preference
for accuracy over finality in the
substantive award. According to the DOL,
when the modification request is timely
filed, the interest in accuracy trumps
the interest in finality. See DOL Br. at
21. "Because the black lung regulations
are issued by the Office of Workers’
Compensation rather than by the Benefits
Review Board, it is to the former body
rather than the latter tha[t] we owe the
usual deference that courts give
agencies’ interpretations of their own
regulations or governing statutes."
Sahara Coal Co., 946 F.2d 554.

  We believe that the DOL’s approach is a
reasonable interpretation of the
statutory and regulatory language and
finds support in the Supreme Court cases,
as well as a wealth of circuit cases,
interpreting sec. 22. In Banks, for
example, the Supreme Court allowed
modification despite the fact that the
evidence in support of the petition could
have been discovered prior to the
hearing. Furthermore, in O’Keeffe, the
Supreme Court explicitly rejected efforts
to limit modification to situations in
which new evidence was produced in
support of the petition; the Supreme
Court stated that "[t]he plain import of
[the 1934 Amendment] was to vest a deputy
commissioner with broad discretion to
correct mistakes of fact, whether
demonstrated by wholly new evidence,
cumulative evidence, or merely further
reflection on the evidence initially
submitted." O’Keeffe, 404 U.S. at 256.
Indeed, "[o]nce a request for
modification is filed, no matter the
grounds stated, if any, the deputy
commissioner has the authority, if not
the duty, to reconsider all the evidence
for any mistake of fact or change in
conditions." Worrell, 27 F.3d at 230.
Given the preference for accuracy
articulated in these and other cases,/7
we cannot but conclude that the DOL’s
position, although perhaps stated too
tersely and therefore subject to
misinterpretation, is not only
reasonable, but persuasive./8

         Mrs. Hilliard, however, points to a
number of circuit and BRB cases which
have rejected efforts to correct mistakes
of fact in favor of promoting finality of
judicial decisionmaking. Specifically,
Mrs. Hilliard suggests that McCord v.
Cephas, 532 F.2d 1377 (D.C. Cir. 1976),
Verderane v. Jacksonville Shipyards Inc./
Aetna Casualty & Surety Co., 772 F.2d 775
(11th Cir. 1985), General Dynamics Corp.
v. Director, 673 F.2d 23 (1st Cir. 1982),
and Kinlaw v. Stevens Shipping & Terminal
Co., 33 BRBS 68 (May 17, 1999), strike
the appropriate balance between accuracy
and finality such that "justice under the
Act" is achieved. We examine these cases
briefly.

  In McCord, Mrs. Cephas filed a claim for
benefits after an allegedly work-related
injury caused her husband’s death. The
named employer refused to participate in
any discovery or hearings; its only
response was "John Cephas has never been
in our employment." McCord, 532 F.2d at
1378 (internal quotation marks omitted).
After a hearing in which the employer did
not participate, the DOL sent a copy of
the award of benefits to the employer;
the employer did not respond or appeal
within thirty days. After obtaining
counsel, the employer filed for a
modification. The ALJ fined the employer
for flouting the process, but reopened
the case and revoked the benefits because
McCord never had employed Cephas. The BRB
vacated the ALJ’s decision on the ground
that the ALJ had no jurisdiction to grant
the employer’s request for modification
in the circumstances presented. The
District of Columbia Circuit disagreed.
Relying on O’Keeffe, the court noted that
the Supreme Court had adopted a "broad
and remedial interpretation of [sec.
922]." Id. at 1379. Furthermore,
continued the court, "there is nothing in
the Court’s language or the legislative
history to suggest that the ambit of sec.
22 is narrower for employers . . . ." Id.
at 1380. The court, however, then made a
distinction between having the power to
reopen and automatically reopening
whenever the ALJ found that there had
been a mistake in a determination of
fact. It stated: "The congressional
purpose in passing the law would be
thwarted by any lightly considered
reopening at the behest of an employer
who, right or wrong, could have presented
his side of the case at the first hearing
and who, if right, could have thereby
saved all parties a considerable amount
of expense and protracted litigation."
Id. at 1381. The Court of Appeals minced
no words in describing the employer’s
conduct:

It is not necessary to go as far as the
Lykes decision in order to conclude that
reopening in the case of Cephas would not
"render justice under the act." It would
be difficult to describe a history of
greater recalcitrance, of greater
callousness towards the processes of
justice, and of greater self-serving
ignorance, than the attitude displayed by
McCord in the four-plus years from the
time of Cephas’ death on January 1, 1969,
to January 31, 1973, when McCord, after
receiving notice of the Deputy
Commissioner’s adverse award, first began
to assert his defenses.

McCord, 532 F.2d at 1381.

  In McCord, therefore, the court
suggested that an employer’s abuse of the
adjudicatory system could justify the ALJ
opting not to exercise his or her
discretion in favor of modification. It
remanded the case to the BRB for a deter
mination as to whether reopening would
"render justice under the act."

  Mrs. Hilliard also maintains that
General Dynamics Corp. v. Director, 673
F.2d 23 (1st Cir. 1982), supports the
ALJ’s determination in this case. In
General Dynamics, the employer filed a
modification petition requesting that the
director revisit the liability decision
in light of evidence that the disability
was caused at least in part by a prior
partial disability, thereby limiting the
later employer’s liability under sec.
8(f) of the Act./9 The First Circuit
held that reopen-ing under these
circumstances was not warranted. It
stated that "[a] bare claim of need to
reopen to serve the interests of justice,
however, is not enough. In deciding
whether to reopen a case under sec. 22, a
court must balance the need to render
justice against the need for finality in
decision making: The basic criterion is
whether reopening will render justice
under the act." Id. at 25 (internal
quotation marks and citations omitted).
The court went on to determine that,
although it was "not insensitive to the
employer’s claim that reopening here
might be said to be in the interests of
justice," "[n]evertheless, we hold that
such a reopening would not serve the
orderly administration of justice which
depends in no small part upon finality of
judicial determinations." Id. at 26. The
First Circuit, while articulating the
District of Columbia Circuit’s approach,
did not follow its rationale. The concern
in McCord had been the possibility that
the employer’s behavior amounted to
gaming the system, and the court had
found nothing in the statute or in the
governing Supreme Court precedent to
require the Board or the court to
countenance such behavior. By contrast,
the court in General Dynamics transformed
the permissible considerations of delay
and hardship into a requirement that,
even in the absence of such factors, the
simple finality of judicial
decisionmaking be a controlling factor.

  In Verderane v. Jacksonville Shipyards
Inc./ Aetna Casualty & Surety Co., 772
F.2d 775 (11th Cir. 1985), the Eleventh
Circuit reached a result similar to the
one in General Dynamics. There an
employer had not realized that it could
raise the issue of sec. 8(f) relief in
the same hearing that a claimant’s
disability was disputed and determined.
The Eleventh Circuit stated that "Section
22 petitions are designed to prevent
injustice resulting from the erroneous
fact-finding of officials such as an ALJ,
not to save litigants from the
consequences of their counsel’s
mistakes." Id. at 779. Consequently, the
court refused to reverse an ALJ’s
decision not to grant rehearing.
  Finally, in Kinlaw v. Stevens Shipping
and Terminal Co., 33 BRBS 68 (May 17,
1999), an employer moved for modification
of an award on the basis that one of the
testifying experts for the plaintiff had
not understood the nature of the
employee’s job. After the adverse
determination, the employer submitted a
number of questions to the physician
seeking to clarify his testimony. The
physician responded to the questions, and
the employer submitted the materials in
support of the petition for modification.
The ALJ refused to modify the award on
the ground that the evidence in support
of modification could have been developed
at the first hearing. Noting explicitly
its disagreement with the DOL, the BRB
affirmed. It stated that there was "no
reversible error in the administrative
law judge’s determination that employer
should have anticipated the need to
develop Dr. Forrest’s opinion more fully
at the time of the initial proceeding."
Id. at 74. It then concluded that

[a]s employer’s only explanation for not
developing this testimony previously is
its erroneous belief that it did not
think that it was necessary, and Section
22 is not intended to provide a back-door
route to retrying a case, or to protect
litigants from their counsel’s litigation
mistakes, we affirm the administrative
law judges’ denial of modification on the
facts presented as it constitutes a
rational exercise of her discretionary
authority.

Id. at 74-75. According to this BRB
decision, failing to develop an argument
that could have been made earlier is a
consideration deserving of great weight
in the reopening determination and can
justify denying a petition to reopen.

  We believe that the holding of the
District of Columbia Circuit in McCord is
compatible with the statutory command of
Congress and with the controlling
holdings of the Supreme Court of the
United States. The court’s concern, and
the controlling rationale for its
holding, was the possibility that the
employer blatantly had disregarded the
administrative process at a significant
cost to the system of adjudication. As we
have noted earlier, the court wrote that

[i]t would be difficult to describe a
history of greater recalcitrance, of
greater callousness towards the processes
of justice, and of greater self-serving
ignorance, than the attitude displayed by
McCord in the four-plus years from the
time of Cephas’ death on January 1, 1969,
to January 31, 1973, when McCord after
receiving notice of the Deputy
Commissioner’s adverse award, first began
to assert his defenses.
McCord, 532 F.2d at 1381.

  On the other hand, although both General
Dynamics and Verderane could be
"understood to stand for the proposition
that a particular affirmative defense was
not raised--and thus not relied upon--in
the initial proceeding, then there is no
mistake to correct," DOL Br. at 16,
language in these cases that emphasizes
finality interests cannot easily be
squared with the language of the statute,
the holdings of the Supreme Court, or the
holdings of other circuits that have
emphasized the preference for accuracy
over finality in sec. 22 adjudications.
See, e.g., R.J. Jessee, 5 F.3d at 725;
see also supra note 7. For instance, in
Verderane the Eleventh Circuit held that
because the employer was aware of facts
that supported its proposed defense at
the time of the original hearing, the
employer was precluded from raising the
issue through reopening. See Verderane,
772 F.2d at 779 ("Petitioner knew of the
facts that supported section 8(f) relief
at the time of the 1975 hearing before
ALJ Kimball, and thus should have raised
the issue at that time." (footnote
omitted)). However, the Supreme Court in
O’Keeffe was explicit that "new" evidence
was not a prerequisite for reopening:
"There is no limitation to particular
factual errors, or to cases involving new
evidence or changed circumstances."
O’Keeffe, 404 U.S. at 255. As well, in
General Dynamics the court rested its
decision in part on the "policy of
finality" and its concern for "already
overburdened courts." General Dynamics,
673 F.2d at 26. Yet, the Supreme Court
rejected such an argument in Rambo and
noted that such concerns are "better
directed at Congress or the Director in
her rulemaking capacity." Rambo, 515 U.S.
at 300.
  In O’Keeffe, the Supreme Court noted
that "justice under the Act" should be
considered in reopening decisions. The
Court’s use of "under the Act" requires
that an ALJ’s administration of "justice"
be grounded in the stated purpose of the
Act: "to ensure that in the future
adequate benefits are provided to coal
miners and their dependents in the event
of their death or total disability due to
pneumoconiosis." 30 U.S.C. sec. 901(a).
Congress accomplished this goal, in part,
by incorporating within the statute a
broad reopening provision to ensure the
accurate distribution of benefits. The
reopening provision is not limiting as to
party--it is available to employers and
miners alike. See King v. Jerichol
Mining, Inc., 246 F.3d 822, 825 (6th Cir.
2001) ("It is apparent to us that, by its
plain language, 33 U.S.C. sec. 922, is a
broad reopening provision that is
available to employers and employees
alike."); McCord, 532 F.2d at 1380
("Although Banks and O’Keeffe dealt only
with reopening under sec. 22 for the
benefit of claimants, there is nothing in
the Court’s language or the legislative
history to suggest that the ambit of sec.
22 is narrower for employers seeking to
’decrease’ or ’terminate’ a prior
award."). Furthermore, neither the
statute nor its interpreting case law
limits the type of evidence that may
justify reopening; an ALJ may reopen "to
correct mistakes of fact whether
demonstrated by wholly new evidence,
cumulative evidence, or merely further
reflection on the evidence initially
submitted." O’Keeffe, 404 U.S. at 256.
Consequently, whether requested by a
miner or an employer, a modification
request cannot be denied out of hand
based solely on the number of times
modification has been requested or on the
basis that the evidence may have been
available at an earlier stage in the
proceeding.

  The ALJ, however, followed precisely
this course. It is clear from the
decision that the ALJ was influenced
greatly by the fact that at least some of
Old Ben’s evidentiary submissions could
have been produced for the first hearing.
According to ALJ Chapman, allowing
reopening in these circumstances "would
make mincemeat of any principles of
finality" and would "constitute[ ]
piecemeal litigation and forum shopping
at its worst." App. at 35. However,
finality simply is not a paramount
concern of the Act. Because the ALJ gave
no credence to the statute’s preference
for accuracy over finality, we must
remand for application of the proper
legal standard.

  The DOL urges us to take the next step
and define, with precision, the
considerations that "trump" the statutory
preference for accuracy. According to the
DOL, the inquiry of "justice under the
Act" should focus on a party’s actions
and intent in seeking modification. A
party, states the DOL, should not be
"punished" through a denial of
modification simply because it employs
the procedural mechanisms instituted by
Congress. However, if the party’s purpose
in filing a modification is to thwart a
claimant’s good faith claim or an
employer’s good faith defense, the
remedial purpose of the statute is no
longer served. This position embraces the
approach of the District of Columbia
Circuit in McCord. There, the court
acknowledged the error of the ALJ’s
decision, but determined that
modification should not be "automatic."
McCord, 532 F.2d at 1380. It allowed the
BRB on remand to evaluate the
"recalcitrance" and "callousness" of the
named employer in rendering the
modification decision.

  Certainly the types of actions engaged
in by the employer in McCord would
justify an ALJ’s refusal to reopen.
However, we do not believe that only
sanctionable conduct constitutes the
universe of actions that overcomes the
preference for accuracy. For example,
just as the remedial purpose of the Act
would be thwarted if an ALJ were required
to brook sanctionable conduct, the
purpose also would be thwarted if an ALJ
were required to reopen proceedings if it
were clear from the moving party’s
submissions that reopening could not
alter the substantive award. So too, an
ALJ would be entitled to determine that
an employer was employing the reopening
mechanism in an unreasonable effort to
delay payment. The ALJ is in a unique
position to assess the motivations of the
party, the merits of the motion as well
as institutional concerns. We do not
think it wise or consonant with the grant
of discretion in the statute, therefore,
to unnecessarily cabin the ALJ’s ability
to address the complexities of a motion
to reopen. To the extent that an ALJ
determines that there are important
reasons grounded in the language and
policy of the Act that overcome the
preference for accuracy, that
determination should not be disturbed.

  In making that determination, the ALJ
will no doubt need to take into
consideration many factors including the
diligence of the parties, the number of
times that the party has sought
reopening, and the quality of the new
evidence which the party wishes to
submit. These and other factors deemed
relevant by the ALJ in a particular case
ought to be weighed not under an
amorphous "interest of justice" standard,
but under the frequently articulated
"justice under the Act" standard,
O’Keeffe, 404 U.S. at 255. This
distinction is not simply one of
semantics. The latter formulation cabins
the discretion of the ALJ to keep in mind
the basic determination of Congress that
accuracy of determination is to be given
great weight in all determinations under
the Act.

  At this point, we are constrained to
point out that we cannot accept our
dissenting colleague’s characterization
of our holding today. Indeed, we believe
that very little separates our views. It
is important to note that we do not
require that the ALJ give no weight to
the concern of finality of decision. Nor
do we preclude the possibility that, in a
given case, it might be quite appropriate
to permit this consideration to prevail
in the adjudication of a case. We simply
hold that, given the unique command of
this statute, a modification request
cannot be denied solely because it
contains argument or evidence that could
have been presented at an earlier stage
in the proceedings; such a concern for
finality simply cannot be given the same
weight that it would be given in a
regular civil proceeding in a federal
district court. As our colleague quite
correctly notes, the court in Sahara Coal
Co. v. Office of Workers’ Compensation
Programs, 946 F. 2d 554 (7th Cir. 1991),
referred to Federal Rule of Civil
Procedure 60(b) as a "counterpart" to the
modification statute. Indeed, there can
be no argument that each provision
governs the reopening of already rendered
judgments. However, as our colleague also
notes, the court refrained from
suggesting that the standard for the
application of these two "counterparts"
was the same. Indeed, what seems to
divide our dissenting colleague from us
in this case is the insistence that Rule
60(b) standards, or something very akin
to those standards, ought to govern in
the present case. By contrast, we believe
that, in determining whether to reopen a
black lung case, the specific policy
choices made by Congress must be applied.

  Because the ALJ did not ground her
decision to reopen in the language and
policies of the Act, we must remand this
case for further consideration. We
express no opinion with respect to the
outcome. Given the lengthy history of
litigation in the case, we trust that the
ALJ and the BRB will expedite their
review.

C.   Discovery Requests

  Old Ben also maintains that the ALJ
abused her discretion in denying its
motion to compel Mrs. Hilliard to sign an
authorization allowing it to view the
autopsy slides. The ALJ determined that
"Mrs. Hilliard [was] under no duty to
’cooperate’ with the Employer in its
attempt to have the award of benefits
reversed." App. at 14. The DOL, however,
perceives a continuing duty on the part
of the miner to "authorize access to his
or her medical records." DOL Br. at 23.
We are persuaded by the DOL’s position.

  The regulations implementing the Act are
not silent with respect to a miner’s
obligation to cooperate under these
circumstances. Looking first to the
regulation governing modification
proceedings, 20 C.F.R. sec. 725.310(b)
(2001) provides that "[m]odification
proceedings shall be conducted in
accordance with the provisions of this
part as appropriate . . . ." Included
within Part 725 is sec. 725.414 which
states in relevant part that "[i]f a
miner unreasonably refuses . . . [t]o
provide the Office or the designated
responsible operator with a complete
statement of his or her medical history
and/or to authorize access to his or her
medical records . . . the miner’s claim
may be denied by reason of abandonment."
20 C.F.R. sec. 725.414(a)(3)(i)
(2001)./10 According to the
regulations, therefore, the requirements
of sec. 725.414 apply to modification
proceedings.

  In her analysis, the ALJ rejected Old
Ben’s request for authorization without
considering the reasonableness of Mrs.
Hilliard’s refusal. We cannot say, as a
matter of law, that the refusal was
reasonable, although the ALJ might reach
this conclusion after a more searching
inquiry. Consequently, we must remand for
a determination of whether Mrs.
Hilliard’s refusal was reasonable under
the circumstances./11

Conclusion

  For the foregoing reasons, the petition
for review of the BRB is granted, the
decision of the BRB is reversed, and this
case is remanded for further proceedings
consistent with this opinion.
PETITION FOR REVIEW GRANTED;
REVERSED AND REMANDED



  DIANE P. WOOD, Circuit Judge, dissenting.
This case requires us to reconcile two
important principles of administrative
law, as they apply to determinations made
under the Black Lung Benefits Act, 30
U.S.C. sec.sec. 901 et seq. The first of
those principles relates to the legal
rules that govern the proceeding, and the
extent to which we are bound by the
interpretation the agency in question has
given to the statutes that govern it. The
second relates to the litigation process
itself, and the extent to which an
appellate court ought to defer to a
primary adjudicator’s particularized
applications of legal rules to the case
before her. With respect, I do not agree
with the way my colleagues have applied
either of these principles to the case
before us. I would affirm the decision of
the Benefits Review Board confirming the
award of black lung benefits to the
estate of James Hilliard.

I

  In spite of the majority’s careful
review of the background of the
litigation, I find it necessary to begin
with some additional observations. Old
Ben concedes in its reply brief that the
DOL has paid to Mrs. Hilliard (solely in
her capacity as the representative of Mr.
Hilliard’s estate--she submitted no claim
for benefits in her own right) all
benefits awarded to Mr. Hilliard. Because
this court recognized that there was a
serious question whether the estate, or
Mrs. Hilliard, still has any stake at all
in this litigation, we asked the parties
to file additional memoranda on that
issue. Mr. Hilliard died on February 23,
1995, which meant that his last payment
month was February 1995. Old Ben did not
file the petition for modification now
before us until June 26, 1997. The
supplemental briefs make it clear that
the chances that anyone could recover the
payments that the Hilliard Estate
received are remote at best. That means
that the real adversaries here are Old
Ben and the DOL, one of which will be
left holding the bag if the payments are
indeed unrecoverable. Perhaps, at that
future time, there will be an adversary
proceeding between them, as they fight
over which one has to bear the expense of
unrecoverable payments. If the ALJ was
correct, then the DOL may seek
reimbursement from Old Ben; if she was
wrong, then the DOL must absorb the loss.
But right now, the DOL is before this
court arguing in support of Old Ben’s
position that the ALJ misinterpreted the
statutory scheme. This sounds
suspiciously like a request for an
advisory opinion, under the
circumstances, since a "victory" will
actually risk harm to the agency in a
monetary sense.

  Noting these facts, Mrs. Hilliard began
her argument on appeal with the assertion
that this court lacks jurisdiction to
hear the case. While she based this
principally on the argument that Old Ben
filed its third modification petition too
late, the fact remains that she called to
our attention a possible jurisdictional
problem (which we would have had a duty
to notice even if she had said nothing,
Fry v. UAL Corp., 84 F.3d 936, 939 (7th
Cir. 1996)). On the limited question of
the timeliness of Old Ben’s petition, I
do not disagree with the majority’s
analysis; I accept that Old Ben filed a
timely petition. The real problem is
whether we have had the benefit of a
truly adversary presentation on the issue
the majority has decided.

  On the one hand, Mrs. Hilliard has
throughout these proceedings defended the
ALJ’s decision. On the other hand, in her
supplemental memorandum she maintained
that she has nothing whatsoever at stake
in the case; any injury would be purely
hypothetical because under Illinois law,
the government may no longer recover from
the estate. 755 ILCS 5/18-12(b) (all
claims against an estate are barred two
years after the decedent’s death; Mr.
Hilliard died on February 3, 1995, and
neither Old Ben nor DOL had filed a claim
for these benefits by February 3, 1997,
or at any later time). The majority tries
to avoid this problem by pointing out
that even if Mrs. Hilliard (as the
representative of Mr. Hilliard) no longer
has an interest in this litigation, the
DOL and Old Ben are adverse parties
because they disagree over who should
ultimately bear the burden of the
payments Mr. Hilliard received. That
disagreement, however, is hypothetical as
far as the present appeal is concerned;
for reasons best known to themselves,
they are arguing together here. This
court may not issue such advisory
opinions merely to clarify the law.

  Nevertheless, Mrs. Hilliard still
maintains at least a theoretical interest
in this dispute. It appears, for example,
that Illinois law may not bar the federal
government from making this claim against
someone, even though Mr. Hilliard is dead
and no estate was ever formally opened
for him. See United States v. Summerlin,
310 U.S. 414, 417 (1940). The parties all
seem to believe that federal law permits
DOL to seek repayment, citing 30 U.S.C.
sec.sec. 923(b) & 940 (incorporating 42
U.S.C. sec. 404). Practicalities are
another matter: Mrs. Hilliard is nearly
72 years old and her ability to repay is
not a matter of record. Nevertheless,
however remote the possibility or the
likelihood of success, the DOL may still
try to collect from Mrs. Hilliard.
Although it retains the discretion to
grant a waiver, it has not indicated it
would do so. That is enough--barely--to
save the case from nonjusticiability, and
so I agree with the majority that we may
address the substantive question
presented: whether accuracy concerns
(almost) always trump finality concerns
for purposes of sec. 422(a) of the Black
Lung Benefits Act, 30 U.S.C. sec. 932(a),
which incorporates sec. 22 of the
Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. sec. 922. See
also 20 C.F.R. sec. 725.310.

II

  The relevant law on that substantive
issue can be found in the special set of
rules governing modification petitions in
this particular area. Like the majority,
I begin with the language of sec. 22,
which the majority reproduces ante at 8-
9. Under sec. 22, the deputy commissioner
"may" "review a compensation case . . .
and . . . issue a new compensation order
which may terminate, continue, reinstate,
increase, or decrease such compensation
[i.e., the result of an earlier order],
or award compensation." It is clear, as
the majority emphasizes, that the
existence of this statute, coupled with
the Supreme Court cases interpreting it,
results in a system that does not follow
traditional principles of res judicata.
See Banks v. Chicago Grain Trimmers
Ass’n, 390 U.S. 459 (1968); O’Keeffe v.
Aerojet-General Shipyards, Inc., 404 U.S.
254 (1972); Metropolitan Stevedore Co. v.
Rambo, 515 U.S. 291 (1995). Where we part
company is on the question of the way fi
nality concerns do fit into the black
lung (and longshore) system. Even the
majority agrees that finality is not
utterly irrelevant. If that was what
Congress wanted, it would have said that
the deputy commissioner "must" reopen a
case upon a properly filed modification
petition. Plainly, that is not what the
statute says. Using the language of
discretion, it says that the deputy
commissioner "may" reopen the case. The
majority has read into the statute,
however, substantive qualifications on
when reopening under this seemingly
discretionary language may occur: it has
judicially decreed that it will be an
abuse of discretion for the deputy
commissioner to refuse to reopen and
reconsider a matter de novo in every case
except those in which either a
modification could not alter the award or
a party has intentionally misused the
modification mechanism for the purpose of
delaying the adjudication or otherwise
abusing the administrative process.

  That standard appears nowhere in the
statute, nor can one find it in any
regularly promulgated regulations issued
by the DOL. Instead, it seems to be a
litigating position that the DOL has
crafted for the occasional case, in an
effort to reconcile the court of appeals’
decisions in McCord v. Cephas, 532 F.2d
1377 (D.C. Cir. 1976); Verderane v.
Jacksonville Shipyards, Inc., 772 F.2d
775 (11th Cir. 1985); and General
Dynamics Corp. v. Director, OWCP, 673
F.2d 23 (1st Cir. 1982). The majority
points to Kinlaw v. Stevens Shipping &
Terminal Co., 33 BRBS 68 (May 17, 1999)
to show that the DOL has argued this
position before, but a few arguments in
appellate briefs in no way equate to
official agency policy warranting
deference. Indeed, the majority admits
that this is not a situation in which
this court owes deference to the agency’s
position under the principles announced
in Chevron USA, Inc. v. Natural Resources
Defense Council, 467 U.S. 837 (1984). See
also Wyoming Fuel Co. v. Director, OWCP,
90 F.3d 1502, 1505 (10th Cir. 1996). It
also acknowledges, in footnote 8, that
the Supreme Court’s decision in United
States v. Mead Corp., 121 S. Ct. 2164
(2001), changed the rules governing
deference. Under Mead, we have been
instructed to return to the regime
established by Skidmore v. Swift & Co.,
323 U.S. 134 (1944), under which a rule
or agency position is entitled to claim
respect only "according to its
persuasiveness." 121 S. Ct. at 2168. In
that respect, Mead went considerably
beyond the Court’s earlier decision in
Christensen v. Harris County, 529 U.S.
576 (2000), which had only hinted at the
rule that should apply to less formal
interpretations found in policy
statements, manuals, and the like.

  Acceding to that rule, the majority
announces that it finds the approach the
DOL has outlined in its brief here to be
a "reasonable interpretation of the
statutory and regulatory language" and
one that is supported by a "wealth"
ofSupreme Court and court of appeals
decisions. Ante at 13. I cannot agree,
because I find that the authorities on
which the majority relies did not focus
on the question of when finality concerns
should prevail (or to put it differently
what justifies an exception to the
interest in accuracy), nor did they
attempt to reconcile an unwavering
preference for accuracy with the
discretionary language of the statute.
That fact, coupled with the way the DOL’s
Benefits Review Board (as opposed to its
lawyers) has actually administered this
statute, leads me to conclude that this
is not a situation in which we must defer
to the DOL’s position. On the merits, I
am persuaded that the rule that best
reflects the statutory language and
policy requires affirmance of the BRB’s
decision here.

  To reiterate, the central question
before us is not whether sec. 22 is
somehow qualified by a strict rule of res
judicata. It is not, as the Supreme Court
has plainly held in Banks v. Chicago
Grain Trimmers Ass’n, 390 U.S. 459
(1968), O’Keeffe v. Aerojet General
Shipyards, Inc., 404 U.S. 254 (1972), and
Metropolitan Stevedore Co. v. Rambo, 515
U.S. 291 (1995). The question is instead
one about the standard the DOL must use
in drawing the balance between accuracy
(which at the extreme would call for
reopening any time someone had new
evidence or arguments) and finality
(which at the extreme would forbid
modification for any reason whatsoever).
The majority has accepted the DOL’s
argument for a standard under which
accuracy trumps in every case (that is,
every case is reopened upon a
modification petition) unless the party
seeking modification has intentionally
abused the process. The alternative
standard, which I find to be far better
supported by the Supreme Court’s
decisions, would call for a more flexible
"interest of justice" determination to be
made by the deputy commissioner (or other
responsible official at the Department).
The "interest of justice" standard would
certainly permit consideration of
intentional misuse, but it would also
allow the responsible official to take
into account factors such as the
diligence of the party seeking
modification, the number of times
modification has been sought, and the
quality of the new evidence or new
arguments the party seeking modification
wishes to present. A reviewing court
would then decide whether a decision to
reconsider, or a decision not to
reconsider, an earlier award represented
an abuse of discretion under familiar
principles of administrative law. See,
e.g., 5 U.S.C. sec. 706(2)(A).
  In Banks, the Supreme Court observed
that the purpose of the amendment to sec.
22 that opened up mistaken determinations
of fact to later review was "to broaden
the grounds on which a deputy
commissioner can modify an award by
allowing modification where a mistake in
a determination of fact makes such
modification desirable in order to render
justice under the act." 390 U.S. at 464
(internal quotations omitted). The agency
must therefore have some reason to
believe that it would serve the interests
of justice to reopen a proceeding that
has been concluded and to reconsider the
earlier result. See Verderane, supra;
General Dynamics, supra. One such reason
might certainly be the showing of
intentional misuse of the modification
mechanism that the majority has accepted.
But it is not the only one. Finality
itself is another factor that deserves
some consideration on its own, as the
administrative law judge here held. It is
hard at best to make the case that
finality has nothing to do with the
interests of justice. After all, finality
protects settled interests; it brings an
enforced end to disputes between
adversaries; it saves resources; and it
reflects the pragmatic idea that the odds
of improving the accuracy of decision-
making by adding an additional phase of
proceedings are probably not high in the
majority of cases. These policies
underlie the law of judgments and the
procedural rules such as Fed. R. Civ. P.
60(b), which place heavy emphasis on
finality interests. (Indeed, in Sahara
Coal Co. v. Office of Workers’
Compensation Programs, 946 F.2d 554 (7th
Cir. 1991), this court commented that the
modification provision of 20 C.F.R. sec.
725.310 now before us is the "counterpart
to Rule 60(b)." Id. at 556. The Sahara
Coal decision had no occasion to explore
how close a counterpart it was, but the
analogy would suggest that finality is
not the disfavored notion the majority
has made it.)

  Diligence is another legitimate
consideration for the agency to take into
account in deciding whether or not to
modify an earlier decision. That is
precisely the point the ALJ here was
making when she weighed against Old Ben
the fact that the evidence it wanted to
present would have been available to a
diligent party in time for the earlier
two rounds of this case:

The modification provisions of the Act
are not intended to allow a party to lay
back, and, having received an adverse
decision, take a second (or in this case,
third) bite at the apple by gearing up
and presenting evidence that it could
have presented at the first hearing on
the claim. To do so would allow the
Employer, under the guise of an
allegation of mistake, to retry its case
simply because it feels that it can make
a better showing the next time around.

App. 35. This ALJ was not the first
person at the DOL to take diligence into
account. To the contrary, the BRB has
refused modification requests before on
this precise ground. In Kinlaw v. Stevens
Shipping Co., supra, the BRB affirmed the
ALJ’s refusal to modify. The ALJ had
relied on the fact that the employer
could and should have obtained and
proffered during the original hearing the
medical opinions it was offering in
support of its modification request. The
BRB agreed, stating that

to allow employer to reopen the prior
decision on the basis of what equates to
post-decisional discovery would have the
adverse effect of allowing any employer
reluctant to finance adequate discovery
pre-trial to count on correcting any
omissions by way of a petition for
modification, which would defeat both the
principles of finality and that [sic] of
judicial efficiency.

The party’s overall diligence, as well as
the public values embodied in finality
and efficiency, are all legitimate
dimensions of the "justice under the Act"
that should guide a decision under sec.
22. See also L.C. Branham v. Bethenergy
Mines, Inc., 1998 WL 169698 (DOL BRB
1998).

  Naturally, there have been other cases
in which the BRB has permitted
modification even without a demonstration
that new evidence is available. This is
what one would expect in a system that
permits, but does not compel,
modification. The Supreme Court
underscored the fact that the ALJ has the
discretion under sec. 22 to modify an
award to correct mistakes of fact,
whether those mistakes were demonstrated
by wholly new evidence or nothing more
than further reflection on the evidence
already submitted. O’Keeffe, 404 U.S. at
256. See also Consolidation Coal Co. v.
Worrell, 27 F.3d 227, 230 (6th Cir. 1994)
("If the claimant merely alleges that the
ultimate fact (disability due to
pneumoconiosis) was wrongly decided, the
deputy commissioner may, if he chooses,
accept this contention and modify the
final order accordingly."); Jessee v.
Director, OWCP, 5 F.3d 723, 725 (4th Cir.
1993) ("There is no need for a smoking-
gun factual error, changed conditions, or
startling new evidence."). The ALJ in
this case was aware that there was no
hard-and-fast rule requiring new
evidence; she began her opinion with the
same statement just referenced from
O’Keeffe and acknowledged that all
evidence of record is relevant on a
modification petition and that the fact-
finder enjoys broad discretion even if
nothing more occurs than further
reflection on the existing record. App.
33. Thus, I am satisfied that her
decision was not tainted by a
misapprehension of the standards that
apply in these cases.

  Based on the more flexible "interests of
justice" standard I have described, I
would find that the ALJ and the BRB did
not abuse their discretion in refusing to
modify the Hilliard award. This was the
third time around for Old Ben, in a
modification proceeding that began more
than two years after the miner’s death.
The evidence Old Ben wished to present
was not new. (Indeed, Old Ben seems to
have been rather careless during an
earlier modification proceeding, when it
submitted chest x-rays of a completely
unrelated person to support its
arguments.) It attempted to excuse its
earlier failure to consider the autopsy
report that had been prepared for Mr.
Hilliard--which had listed pneumoconiosis
as the cause of his death--on the ground
that it had been abandoned by its then-
lawyer, Wayne Reynolds. The ALJ was not
persuaded that this adequately explained
Old Ben’s actions, noting that Old Ben
had not explained with particularity what
the problem with counsel had been.
Moreover, Old Ben certainly knew when Mr.
Hilliard had died, and it had made no
effort to obtain the autopsy (or,
apparently, to monitor Reynolds’s
efforts). These are discretionary calls,
in my view. I see no abuse of discretion
in the ALJ’s weighing of the entire
situation, though it is quite possible
that no abuse of discretion would have
existed had the ALJ come out the other
way.

  Finally, there is the question whether
the ALJ abused her discretion in refusing
to require Mrs. Hilliard to grant Old Ben
access to the autopsy slides. It appears
that Old Ben received a copy of the
autopsy report itself in January 1996.
Three years later, in January 1999, it
moved to obtain access to the tissue
slides so that its own experts could
examine them. This is the request that
the ALJ denied. The DOL has suggested
that this was an abuse of discretion,
relying on 20 C.F.R. sec. 725.414, which
says that "[i]f a miner unreasonably
refuses . . . to provide . . . the
designated responsible operator with a
complete statement of his or her medical
history and/or authorize access to his or
her medical records, . . . the miner’s
claim may be denied by reason of
abandonment." It is not clear, however,
whether Mrs. Hilliard violated that
regulation. She readily gave them the
report itself, which is what would have
constituted the official medical record.
It was the underlying evidence that she
did not release, and it does not appear
that this regulation covers material like
slides. More importantly, however,
neither Mrs. Hilliard nor the ALJ relied
on the autopsy evidence at all--not on
the report, and not on the slides-- and
so I would find that any error the ALJ
might have made was harmless. Finally,
even if there were some kind of legal
requirement to turn over the slides, I
would find that such a requirement was
subject to reasonable case management
rulings, and I would find that the ALJ
did not abuse her discretion in
concluding that Old Ben waited too long
to ask for them. If Old Ben had been so
interested in the slides, it could have
sought them back in 1996 when it
discovered that the report came to a
conclusion adverse to its position.

III

  Old Ben and the DOL raise the specter of
a world in which employers can never win
modifications, should the ALJ’s decision
here be upheld. With all due respect,
there is a Chicken Little-like quality to
that argument. There is no reason to
believe that an interpretation of sec. 22
that adopts an "interest of justice" rule
to govern exercises of discretion would
lead to such a result. To the contrary,
this standard ought to operate in favor
of employers just as often as it does for
employees. Employers with a good reason
to modify an award will be able to do so,
and they will be able to prevent
employees from constantly returning
trying to increase benefits or otherwise
seek a more favorable outcome unless the
employee has an equally good reason. An
ALJ has the discretion to grant or deny a
modification request raised by either
party, and nothing in the system, as I
believe it should be interpreted, would
bias the proceedings toward either side.
On the other hand, I fear that the
encouragement to piecemeal litigation
that is inescapable in the majority’s
standard will encourage employers to come
back once a year to try to deprive
employees of their awards. As between the
employer and the employee, it is the
employer who is likely to have sufficient
resources for this kind of endless
proceeding. In my opinion, neither the
statute nor the regulations compel such a
result. I therefore respectfully dissent.

FOOTNOTES
/1 Although Old Ben requested dismissal to pursue
modification, it apparently failed to file a
petition for modification with the DOL. The BRB
therefore ordered Old Ben to start paying bene-
fits; this action prompted Old Ben to file its
petition for modification.

/2 ALJ Lawrence was no longer available to hear the
case.

/3 In Director, OWCP v. Greenwich Collieries, 512
U.S. 267, 281 (1994), the Supreme Court held that
the DOL’s "true doubt" rule, which required an
ALJ to find in favor of the claimant when the
evidence was evenly balanced, violated sec. 7 of
the Administrative Procedures Act.

/4 We have examined whether Mrs. Hilliard has a
sufficient interest in the outcome of the litiga-
tion and whether the similar litigating positions
of Old Ben and the DOL render this case nonjusti-
ciable. The parties did not raise this issue;
however, because it implicates the court’s juris-
diction, we requested that the parties file
supplemental briefs to address the justiciability
issue. After having the benefit of the parties’
submissions, we conclude that this case presents
a justiciable case or controversy. First, all
parties agree that, pursuant to applicable stat-
utes and regulations, the DOL may seek repayment
from Mrs. Hilliard of the amount paid to Mr.
Hilliard in the event the award is reversed on
remand. See 30 U.S.C. sec.sec. 923(b) & 940
(incorporating 42 U.S.C. sec. 404); 20 C.F.R.
sec.sec. 725.522 (b) & 725.540-.546. We do not
believe that either the possibility of obtaining
an administrative waiver (which the DOL has shown
no indication that it will grant) or the possi-
bility that the DOL may be barred by Illinois’
probate law from collecting on its claim, see 755
ILCS 5/18-12(b); but see United States v. Summer-
lin, 310 U.S. 414, 417 (1940) ("When the United
States becomes entitled to a claim acting in its
governmental capacity and asserts its claim in
that right, it cannot be deemed to have abdicated
its governmental authority so as to become sub-
ject to a state statute putting a time limit upon
enforcement."), deprives the court of jurisdic-
tion to hear this case. Even if the continued
interest of Mrs. Hilliard did not secure this
court’s jurisdiction, we believe there is suffi-
cient adversity among the remaining parties--the
DOL and Old Ben--to sustain jurisdiction. Al-
though these parties agree that the ALJ applied
the incorrect standard, the similarities end
there: Old Ben and the DOL differ on who is
ultimately responsible for the payments to Mr.
Hilliard. Consequently, we believe this case
presents a live case and controversy over entitl-
ements to, and liability for, the black lung
benefits paid to date. We note that our dissent-
ing colleague reaches the same conclusion on this
point.

/5 For the reasons set forth in Betty B Coal Co. v.
Director, OWCP, 194 F.3d 491, 500 (4th Cir.
1999), we also must reject the contention that
Old Ben’s modification request was untimely. The
Act provides that a modification petition may be
filed "at any time prior to one year after the
rejection of a claim." 33 U.S.C. sec. 922. As
detailed by the Fourth Circuit in Betty B Coal,
initial claims and modification requests are
treated similarly in many respects. For instance,
"[j]ust as in a first claim, processing of a
request for modification begins with the collec-
tion of evidence at the district director level."
Betty B Coal, 194 F.3d at 498. A modification
petition also proceeds along the same course as
an original petition--a party may request a
hearing, the hearing is referred to an ALJ, and
de novo review is applied. Id. Furthermore, the
ALJ is in no way bound by the findings of the
prior factfinder. Id. at 499. Consequently, the
Fourth Circuit concluded, and we agree, that it
is consistent with the Act to interpret "claim"
to include a modification request.
/6 20 C.F.R. sec. 725.310 is the regulation imple-
menting sec. 22 of the Act.

/7 See The Youghiogheny & Ohio Coal Co. v. Milliken,
200 F.3d 942, 955 (6th Cir. 1999) (rejecting, as
contrary to the holding in O’Keeffe, a coal
company’s argument that modification of an award
cannot be based on a simple reweighing of the
evidence, even if this prolongs litigation);
Betty B Coal, 194 F.3d at 497 (noting that the
"modification procedure is extraordinarily broad,
especially insofar as it permits the correction
of mistaken factual findings"); Keating v. Direc-
tor, OWCP, 71 F.3d 1118, 1123 (3d Cir. 1995)
(accepting DOL’s interpretation that the modifi-
cation regulation allows "an ALJ to reconsider
the evidence in determining whether there was a
mistake of fact, even the ultimate fact of enti-
tlement"); Consolidation Coal Co. v. Worrell, 27
F.3d 227, 229 (6th Cir. 1994) ("Once a request
for modification is filed, no matter the grounds
stated, if any, the deputy commissioner has the
authority, if not the duty, to reconsider all the
evidence for any mistake of fact or change in
conditions."); Amax Coal Co. v. Franklin, 957
F.2d 355, 357 (7th Cir. 1992) ("Although there
was no demonstrated change in this miner’s condi-
tion, there was arguably a mistake of fact--a
mistake as to whether he had black lung disease--
and no more is required to reopen the proceeding
within a year of denial.").

/8 We have considered whether the interpretation of
the DOL is simply a litigating position that the
DOL has crafted for this case. Kinlaw v. Stevens
Shipping & Terminal Co., 33 BRBS 68 (May 17,
1999), belies any such characterization. In that
case the BRB described the position of the DOL as
follows:
[The] employer and the Director also aver that
the fact-finder has broad authority under Section
22 to reopen the claim to correct any mistaken
determinations of fact, and that the fault of the
party or the party’s attorney in failing to
adduce sufficient evidence in the original pro-
ceedings cannot serve as a basis for denying
modification. The Director contends that the
administrative law judge’s ascribing controlling
weight to the "interest in finality" is contrary
to the policy underlying Section 22 as a whole
and its "mistake" ground in particular; he main-
tains that as Section 22 was intended to broadly
vitiate the ordinary res judicata principles, the
interest in "getting it right," even if belated-
ly, will almost invariably outweigh the interest
in finality.

  While recognizing that the language of Section
22 is permissive, the Director maintains that
Section 22 narrowly constrains the administrative
law judge’s authority to deny reopening the claim
where, as here, the result of the original adju-
dication is alleged to have been in error.
Id. at 71 (footnotes omitted).

  The question then becomes what, if any, weight
should be given to the DOL’s position. Although
in Bowen v. Georgetown University Hospital, 488
U.S. 204, 213 (1988), the Supreme Court said that
"[d]eference to what appears to be nothing more
than an agency’s convenient litigating position
would be entirely inappropriate," the Court later
recognized a difference between an agency liti-
gating position taken in circumstances such as
Bowen, in which the agency was trying to defend
an action it already had taken, and agency liti-
gating positions taken in circumstances in which
the agency had a less-vested interest in the
outcome. See Auer v. Robbins, 519 U.S. 452, 462
(1997). In Auer, the Court stated:

  Petitioners complain that the Secretary’s
interpretation comes to us in the form of a legal
brief; but that does not, in the circumstances of
this case make it unworthy of deference. The
Secretary’s position is in no sense a "post hoc
rationalizatio[n]" advanced by an agency seeking
to defend past agency action against attack,
Bowen v. Georgetown Univ. Hospital, 488 U.S. 204,
212 (1988). There is simply no reason to suspect
that the interpretation does not reflect the
agency’s fair and considered judgment on the
matter in question.
Id. at 462. Most recently, in United States v.
Mead Corp., 533 U.S. 218 (2001), the Supreme
Court held that "Chevron did nothing to eliminate
Skidmore’s holding that an agency’s interpreta-
tion may merit some deference whatever its form,
given the specialized experience and broader
investigations and information available to the
agency and given the value of uniformity in its
administrative and judicial understandings of
what a national law requires." Id. at 234 (inter-
nal quotation marks and citations omitted).
According to Skidmore v. Swift & Co., 323 U.S.
134 (1944), "[t]he weight [accorded administra-
tive] judgment in a particular case will depend
upon the thoroughness evident in its consider-
ation, the validity of its reasoning, its consis-
tency with earlier and later pronouncements and
all those factors which give it power to per-
suade, if lacking power to control." Id. at 140.

  Although an agency’s "[i]nterpretations [of
statutes] such as those in opinion letters--like
interpretations contained in policy statements,
agency manuals, and enforcement guidelines, all
of which lack the force of law--do not warrant
Chevron-style deference," Christensen v. Harris
County, 529 U.S. 576, 587 (2000), an agency’s
considered interpretation of its own regulation
is entitled to deference "when the language of
the regulation is ambiguous." Id. (citing Auer,
519 U.S. at 461). In the present case, we need
not decide precisely the level of deference that
should attach to the DOL’s interpretation of the
statute and implementing regulations; its posi-
tion, we believe, is both reasonable and persua-
sive. Regardless of the precise standard of
deference applied, therefore, we would uphold the
DOL’s interpretation.

/9 33 U.S.C. sec. 908(f) provides in relevant part:
(1) In any case in which an employee having an
existing permanent partial disability suffers an
injury, the employer shall provide compensation
for such disability as is found to be attribut-
able to that injury based upon the average weekly
wages of the employee at the time of the injury.
If following an injury falling within the provi-
sion of subdivision (c)(1)-(2) of this section,
the employee is totally and permanently disabled,
and the disability is found not to be due solely
to that injury, the employer shall provide com-
pensation for the applicable prescribed period of
weeks provided for in that section for the subse-
quent injury, or for one hundred and four weeks,
whichever is the greater. . . .
33 U.S.C. sec. 908(f).

/10 A similar provision had been located at sec.
718.402, 20 C.F.R. sec. 718.402 (1999), and
therefore, on its face, was not within the "pro-
visions of this part" as set forth in sec.
725.310, 20 C.F.R. sec. 725.310 (1999). However,
20 C.F.R. sec. 725.4 (1999) incorporated the
standards set forth in Part 718; it stated: "Part
718 of this subchapter, which contains the crite-
ria and standards to be applied in determining
whether a miner is or was totally disabled due to
pneumoconiosis, or whether a miner died due to
pneumoconiosis, shall be applicable to the deter-
mination of claims under this part." 20 C.F.R.
sec. 725.4(a) (1999). Consequently, both the
former and current regulations articulate the
same standard for evaluating Mrs. Hilliard’s
refusal.

/11 In light of the disposition of this action, Mrs.
Hilliard’s "Motion to Take Judicial Notice" is
denied as moot.
