                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-6-2004

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Precedential or Non-Precedential: Precedential

Docket No. 03-1211




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                         PRECEDENTIAL

                                 Filed January 6, 2004

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                   No. 03-1211


       MARY LOMBARDY (Surviving Divorced
         Spouse of FRANK LOMBARDY),
                           Petitioner
                         v.
  DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
                           Respondent

     On Appeal from the Benefits Review Board
        United States Department of Labor
              BRB No. 02-0428 BLA

    Submitted Under Third Circuit L.A.R. 34.1(a)
               December 11, 2003
Before: AMBRO, FUENTES, and GARTH, Circuit Judges

          (Opinion Filed: January 6, 2004)
                  James A. Horchak
                  Quatrini Rafferty Galloway, P.C.
                  Underwood Center
                  550 East Pittsburgh Street
                  Greensburg, Pennsylvania 15601
                    Attorney for Petitioner
                    Mary Lombardy
                            2


                     Howard M. Radzely
                     Donald S. Shire
                     Christian P. Barber
                     Katie M. Streett
                     Patricia M. Nece
                     Mark E. Papadopoulos
                     United States Department of Labor
                     200 Constitution Avenue, N.W.
                     Washington, D.C. 20210
                        Attorneys for Respondent
                        United States Department of Labor


                OPINION OF THE COURT

GARTH, Circuit Judge:
   Mary Lombardy appeals from the Benefits Review Board’s
decision and order affirming the Administrative Law Judge’s
decision which denied Lombardy benefits on a survivor’s
claim filed pursuant to Title IV of the Federal Coal Mine
Health and Safety Act of 1969, as amended, 30 U.S.C.
§ 901 et seq (the “Act”). We will affirm.

                            I.
   We recount the facts and the procedural history of the
case only as they are relevant to the following discussion.
Mary Lombardy is the surviving divorced spouse of Frank
Lombardy. Frank Lombardy, a miner, was born on
February 5, 1891. He worked in coal mines from January
1, 1937 to July 31, 1955. He married Mary Lombardy on
August 17, 1950, and they divorced on January 9, 1964.
Mrs. Lombardy began receiving benefits under the Social
Security Act (“SSA”) based on her husband’s employment
when she turned 65 on March 28, 1983. Frank Lombardy
contracted pneumoconiosis (“black lung”) as a result of the
conditions of coal mine employment, and was awarded
lifetime black lung benefits under the Act. He died on
September 5, 1985.
  Mary Lombardy filed a survivor’s claim for black lung
benefits under the Act on March 24, 2000. The claim was
                             3


ultimately denied by the district director on August 25,
2000, on the grounds that Mrs. Lombardy was not a
dependent under the Act and under the applicable
regulations. See 20 C.F.R. § 725.217. Mrs. Lombardy
appealed and requested a hearing. See 20 C.F.R. § 725.452.
   The case was referred to the Office of the Administrative
Law Judges on May 31, 2001. A hearing was held in
Pittsburgh, Pennsylvania before Administrative Law Judge
(“ALJ”) Daniel L. Leland. On February 12, 2002, ALJ Leland
denied Mrs. Lombardy’s claim for survivor benefits. The
denial was based on the position that was adopted by the
Benefits Review Board in Taylor v. Director, O.W.C.P., 15
BLR 1-4, 7 (1991), that receipt of SSA benefits by a miner’s
divorced surviving spouse as a result of the miner’s
employment does not constitute receipt of contributions
from the miner’s property necessary to support a claim for
benefits under the Act.
  Mrs. Lombardy appealed ALJ Leland’s decision to the
Benefits Review Board (the “Board”), which affirmed the
ALJ’s denial of benefits on November 26, 2002.

                             II.
   We have jurisdiction to hear this appeal pursuant to 30
U.S.C. § 932(a). This court reviews Board decisions for
errors of law and for adherence to its own standard of
review. See Barren Creek Coal Co. v. Witmer, 111 F.3d 352,
354 (3d Cir. 1997); see also, Director, Office of Workers
Comp. Programs v. Barnes & Tucker Co., 969 F.2d 1524,
1526-27 (3d Cir. 1992). The Board must accept an ALJ’s
findings of fact if they are supported by substantial
evidence in the record considered as a whole. BethEnergy
Mines Inc. v. Director, Office of Workers’ Comp. Programs, 39
F.3d 458, 463 (3d Cir. 1994); Oravitz v. Director, Office of
Workers’ Comp. Programs, 843 F.2d 738, 739 (3d Cir.
1988). Matters of law are subject to plenary review by this
Court. United States v. Jefferson, 88 F.3d 240, 241 (3d Cir.
1996).

                            III.
  The Act provides benefits to the surviving divorced
spouse of a miner who was disabled due to pneumoconiosis
                                 4


(1) if the surviving divorced spouse is unmarried, (2) if the
surviving divorced spouse was dependent on the miner, and
(3) if the miner was receiving benefits under the Act or was
disabled due to pneumoconiosis. 20 C.F.R. §§ 725.217(a),
725.201(a)(2), 725.201(b). The issue in this case is whether
Mrs. Lombardy, the surviving divorced spouse, was
“dependent upon the miner.”
  The applicable regulation provides, in relevant part, that
a surviving divorced spouse “shall be determined to have
been dependent on the miner if, for the month before the
month in which the miner died[, t]he individual was
receiving at least one-half of his or her support from the
miner (see § 725.233(g)) . . . .” 20 C.F.R. § 725.217(a), 30
U.S.C. § 902(a)(2).1 Section 725.233(g) states:
     “one-half support” means that the miner made regular
     contributions, in cash or in kind, to the support of a
     divorced spouse at the specified time or for the
     specified period, and that the amount of such
     contributions equalled or exceeded one-half the total
     cost of such individual’s support at such time or
     during such period.
20 C.F.R. § 725.233(g). “Contributions” are defined as
“contributions actually provided by the contributor from
such individual’s property, or the use thereof, or by the use
of such individual’s own credit.” 20 C.F.R. § 725.233(b).
   Mrs. Lombardy argues that she is entitled to benefits as
a dependant of Frank Lombardy because she received SSA
benefits, which are based upon his employment earnings
and are therefore a “use of [his] own credit” under
§ 725.233(b). Alternatively, Mrs. Lombardy argues that the
SSA benefits are an in-kind transfer of property from Frank
Lombardy to her “through the intermediary of the Federal
government.” Br. at 9. We reject both arguments.
  In Director, O.W.C.P., U.S. Dept. of Labor v. Ball, 826 F.2d
603 (7th Cir. 1987), the Seventh Circuit addressed whether
social security benefits qualify as support from

1. The parties have stipulated that Mrs. Lombardy was not receiving
contributions from Frank Lombardy based on a written agreement or
court order, and therefore 20 C.F.R. §§ 725.217(b) (c) do not apply.
                                     5


contributions of the miner’s property under the Act. That
court determined that they did not, rejecting the claimant’s
comparison of SSA benefits based on a former spouse’s
earnings to direct transfers of property from the former
spouse, and noting that “Congress did not intend to provide
a divorced wife a windfall at the time of her former
husband’s untimely death due to black lung disease.” Id. at
609. The Ball decision did not address whether receipt of
SSA benefits based on a former spouse’s earnings
constitutes use of his credit under the Act.
  In Director, Office of Workers’ Comp. Programs v. Hill, 831
F.2d 635 (6th Cir. 1987), the Sixth Circuit addressed both
of the arguments that Mrs. Lombardy makes in this case.
As to the claim that receipt of SSA benefits based on the
miner’s employment earnings constitute a use of the
miner’s credit, the Sixth Circuit noted that it was rejected
by the Supreme Court’s decision in Flemming v. Nestor, 363
U.S. 603, 609-610 (1960).2 831 F.2d at 639. And as to the
claim that SSA benefits constituted the miner’s property
under the Act, the Sixth Circuit, following Ball, held that
they did not. Id. at 639-641.
  Thereafter, the Eighth Circuit, relying entirely upon the
reasoning in Ball, held that SSA benefits received by a coal
miner’s widow as a result of the miner’s employment are
not the miner’s property, and therefore she is not
dependent upon the miner for support and is not entitled to
benefits under the Act. Director, Office of Workers’ Comp.
Programs v. Logan, 868 F.2d 285, 286 (8th Cir. 1989).
   The Ball, Hill and Logan decisions prompted the Board to
overrule its previous position concerning whether receipt of
SSA benefits based on a miner’s employment could render
the recipient a dependent within the purview of 30 U.S.C.
§ 902(a)(2). Taylor v. Director, Office of Workers’ Comp.
Programs, 15 BLR 1-4 (1991), aff ’d sub nom, Taylor v.
Director, O.W.C.P., 967 F.2d 961, 963 (4th Cir. 1992). In

2. The Supreme Court in        Flemming wrote: “It is apparent that the
noncontractual interest of    an employee covered by the Act cannot be
soundly analogized to that    of the holder of an annuity, whose right to
benefits is bottomed on his   contractual premium payments.” 363 U.S. at
610.
                              6


Taylor, the Board held that SSA benefits do not constitute
contributions from miners under the Act for the purpose of
determining whether a divorced surviving spouse is a
dependent deserving benefits under the Act. 15 BLR at 3.
The Board wrote: “Our holding that Social Security benefits
do not constitute contributions within the meaning of
Section 725.207(a) will, therefore, be applied in all cases
arising within all judicial circuits.” Id.

                             IV.
  The Third Circuit has not yet had the opportunity to rule
on this issue. Without our guidance, the Board decided
Mrs. Lombardy’s appeal from the ALJ’s decision in
accordance with its holding in Taylor. We endorse the
reasoning contained in Ball and Hill. Accordingly, we hold
that Mrs. Lombardy’s receipt of SSA benefits based on
Frank Lombardy’s earnings does not establish that she was
dependent on Frank Lombardy and therefore does not
entitle her to benefits under the Act.
  For the foregoing reasons, the decision of the Board of
Appeals will be AFFIRMED.

A True Copy:
        Teste:

                  Clerk of the United States Court of Appeals
                              for the Third Circuit
