                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-1656


RB&F COAL, INCORPORATED; OLD REPUBLIC INSURANCE COMPANY,

                Petitioners,

           v.

DELORIS J. MULLINS, o/b/o and Widow of Turl Mullins;
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(14-0169 BLA)


Argued:   September 21, 2016                Decided:   November 18, 2016


Before WILKINSON and FLOYD, Circuit Judges, and Irene M. KEELEY,
United States District Judge for the Northern District of West
Virginia, sitting by designation.


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


ARGUED:   Mark   Elliott   Solomons,  GREENBERG   TRAURIG   LLP,
Washington, D.C., for Petitioners.    Victoria Susannah Herman,
WOLFE WILLIAMS & REYNOLDS, Norton, Virginia; Rebecca Jayne
Fiebig, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondents.   ON BRIEF: Laura Metcoff Klaus, GREENBERG TRAURIG
LLP, Washington, D.C., for Petitioners. Joseph E. Wolfe, WOLFE
WILLIAMS & REYNOLDS, Norton, Virginia, for Respondent Deloris
Mullins. M. Patricia Smith, Solicitor of Labor, Rae Ellen Frank
James, Associate Solicitor, Sean G. Bajkowski, Counsel for
Appellate Litigation, Rita A. Roppolo, Office of the Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondent Director, OWCP.




                               2
FLOYD, Circuit Judge:

       R    B   &     F    Coal    Inc.,      and    Old   Republic       Insurance     Company

(collectively,             “RB&F”)        seek      relief     from      an   order    of     the

Department of Labor’s (DOL) Benefits Review Board (BRB) holding

RB&F responsible for the payment of benefits to a coal miner,

Turl       Mullins,       and     survivor’s        benefits       to   his   widow,    Deloris

Mullins, under the Black Lung Benefits Act, (BLBA), 30 U.S.C.

§ 901 et seq. 1              The parties agree that the Mullins family is

entitled to benefits.                    The only remaining dispute is whether

RB&F or another operator is liable for the claim.                               We find that

RB&F is liable, and therefore affirm the decision of the BRB.



                                                    I.

       Before discussing the undisputed facts of this case, it is

helpful to understand the statutory schemes at issue.                                  The BLBA

provides benefits to miners who are disabled by pneumoconiosis.

30 U.S.C. §§ 901(a), 922(a), 932(c).                              The mine operator that

employed        the       disabled      miner    is      liable    for    payment     of    those

benefits.           See     id.     §    932(b).         In   instances       where    a    miner

claiming benefits was employed by multiple coal mine operators,

the    BLBA      authorizes             the   Secretary       of    Labor     to    promulgate




       1
       For clarity, we will refer to these consolidated claims in
the singular as Mullins’s claim.


                                                    3
regulations       to     establish      standards         for    apportioning          liability

among operators.          Id. § 932(h).

     The “responsible operator”--the operator ultimately found

liable for the BLBA claim--is the most recent company to employ

the miner, so long as that employer qualifies as a “potentially

liable operator.”              20 C.F.R. § 725.495(a)(1).                      The regulation

then outlines five criteria an employer must satisfy in order to

be a potentially liable operator, only one of which is relevant

to   this    case:          the     operator        and/or       its        insurer    must    be

financially capable of assuming liability.                                 Id. § 725.494(e).

Once a miner files a claim, a DOL district director determines

whether     any     of     the    miner’s       previous         employers        qualify      as

potentially liable operators.                  Id. § 725.407(a).               If one or more

operators     are        considered      potentially            liable        operators,      the

district    director        names      the     potentially           liable    operator       that

most recently employed the miner as the “responsible operator.”

Id. §§ 725.407(b), 725.495(d).

     The    DOL        bears     the   initial       burden          of    proving     that   the

operator it designates as responsible is a “potentially liable

operator”     under        § 725.494. 2             Id.     § 725.495(b).               If    the

responsible       operator         designated         by        the        district     director

believes     that        another       party     should         be        designated    as    the

     2 RB&F’s status as a potentially liable operator is not in
dispute.


                                                4
responsible operator, that operator bears the burden of proving

that another operator more recently employed the miner, and that

the     later     employer     meets       the    § 725.494   criteria.           Id.    §

725.495(c)(2).

      The       Virginia     Property       and    Casualty    Insurance      Guaranty

Association        (VPCIGA),         is     a     state     chartered      non-profit

association established by the legislature to “provide prompt

payment of covered claims to reduce financial loss to claimants

or policyholders resulting from the insolvency of an insurer.”

Va. Code Ann. § 38.2-1600. 3              All insurance companies that conduct

business in Virginia are required by state law to join, and the

association       is   funded    by       mandatory     contributions      from    those

members.     Id. §§ 38.2-1604.

      When a member insurer becomes insolvent, the VPCIGA takes

on liability for some, but not all, of its obligations.                       See id.

§   38.2-1606(A)(1).           The    VPCIGA      is    required   to   pay   “covered

claims” as that term is defined in the Guaranty Act.                          Id.       In

relevant part, the Guaranty Act provides:                     “Notwithstanding any

other     provision    of     this    chapter,      a   covered    claim    shall       not

      3The provisions at Va. Code Ann. §§ 38.2-1600 to -1623 are
collectively referred herein as the “Guaranty Act.”          The
Virginia Insurance Guaranty Association Act, previously codified
at Va. Code §§ 38.1-756.1 to -774, which created what is now the
VPCIGA, was rewritten in 1986 and is now found at §§ 38.2-1600
to -1623. See 1986 Va. Acts ch. 562. The rewriting changed the
name of the association, however, the substantive provision of
the code relevant to this appeal remained the same.


                                             5
include any claim filed with the [VPCIGA] after the final date

set by the court for the filing of claims against the liquidator

or receiver of an insolvent insurer.”                  Id. § 38.2-1606(A)(1)(b).



                                        II.

      Turning   now    to   the    facts        of    this   appeal,   Turl    Mullins

worked as a coal miner for several years including stints with

RB&F between 1985 and 1986 and Wilder Coal (“Wilder”) between

1986 and 1988. 4       Mullins was diagnosed with pneumoconiosis in

2009, and filed a claim for benefits under the BLBA in that same

year.     As discussed above, under DOL regulations, liability for

those benefits falls to the mine operator that most recently

employed the miner for at least a year, so long as that employer

is financially capable of assuming liability for the claim.                        20

C.F.R. § 725.494.       By the time Mullins filed his claim, Wilder

was out of business.         Further, its insurer, Rockwood Insurance

Co.   (“Rockwood”),     a   member    of        the   VPCIGA,   had    been   declared

insolvent by a Pennsylvania court in August of 1991.                      See Boyd &

Stevenson Coal Co. v. Dir., Office of Workers’ Comp. Programs,

407   F.3d   663,     665   (4th     Cir.       2005).       Following    Rockwood’s

insolvency, the court appointed a liquidator who set the final


      4Mullins also worked for other coal mine operators, but it
is undisputed that none of those operators are liable for his
claim.


                                            6
date for filing claims against Rockwood as August 26, 1992.                            See

Uninsured Employer’s Fund v. Mounts, 484 S.E.2d 140, 144 (Va.

App.    1997),   aff’d,    497    S.E.2d       464    (Va.    1998).          The    VPCIGA

assumed responsibility for claims filed before that date--i.e.,

“covered claims”--but not for claims filed after that date.                            See

id.; Va. Code Ann. § 38.2-1606(A)(1).

       A DOL district director found that Mullins was entitled to

benefits and that RB&F was the responsible operator.                           Contesting

its liability, RB&F requested that the case be transferred to an

Administrative Law Judge (ALJ) for a hearing.

       The ALJ concluded that the district director gave a valid

reason for not naming the more recent employer, Wilder, as the

responsible      operator.        First,       Wilder       was    out   of    business.

Second, Wilder’s insurer, Rockwood, was insolvent.                            And third,

the VPCIGA was not liable for the claim because the August 26,

1992 bar date to file claims against Rockwood had passed.                              The

ALJ    then   determined     that,    according        to    DOL    regulations,       the

burden    shifted    to    RB&F      to   show       that    Wilder      was    in    fact

financially capable of assuming liability.

       The ALJ then found that RB&F had failed to show either that

(1) Wilder or Rockwood was capable of assuming liability for

Mullins’s claim; or (2) the claim qualified as a “covered claim”

under the Guaranty Act obligating the VPCIGA to assume liability

for the claim.      The ALJ also found that because this was not a

                                           7
“covered claim,” the district director had no duty to notify the

VPCIGA or name it as a party.           The ALJ concluded that RB&F was

properly named as the responsible operator and was liable for

Mullins’s claim.

     RB&F appealed the ALJ’s determination to the BRB arguing

that the ALJ incorrectly found that RB&F was the responsible

operator. 5      RB&F also argued that to the extent that the Guaranty

Act prevents the VPCIGA from assuming liability for Mullins’s

claim, it violates 20 C.F.R. § 726.203(c), which prohibits an

insurance company from limiting its liability for black lung

claims.       The BRB disagreed and found that the prohibition did

not apply to guaranty associations:             “Contrary to employer’s

argument,      state-run    insurance   guaranty   associations    are   not

covered     by    20   C.F.R   § 726.203(c),   which   prohibits    private

insurance carriers from limiting their liability for black lung

claims.”      J.A. 15.     As such, the BRB affirmed the ALJ’s finding

and denied RB&F’s motion for reconsideration.            RB&F’s petition

to this Court followed.




     5 RB&F also appealed the determination that Mullins had
pneumoconiosis, that he was totally disabled, and that his death
was due to pneumoconiosis.       Those determinations were not
appealed here.


                                        8
                                         III.

     This Court reviews the legal conclusions of the BRB and the

ALJ de novo to determine whether those conclusions are rational

and consistent with applicable law.                      Westmoreland Coal Co. v.

Cox, 602 F.3d 276, 282 (4th Cir. 2010) (quoting Milburn Colliery

Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998)).

     RB&F       challenges     the   BRB’s    determination            that    Wilder       was

incapable of assuming its liability for Mullins’s claim.                                   RB&F

claims     that    since     Wilder’s    liability         was    fully        covered      by

Rockwood, which was a member of the VPCIGA, then it cannot be

found to be incapable of assuming liability because the VPCIGA

is now obligated to pay the claim.                   For the reasons below, we

disagree.



                                             A.

     Wilder is not a “responsible operator” for the purposes of

the BLBA.       A mine operator cannot be the “responsible operator”

if it is financially incapable of assuming liability.                           20 C.F.R.

§ 725.494(e).

     It    is     undisputed    that    Wilder      is    bankrupt       and    is    itself

incapable of assuming liability.                   It is also undisputed that

Wilder’s     insurance       company,     Rockwood,        is     insolvent          and     is

incapable of assuming liability.                  According to DOL regulations,

an   operator’s       insurance        policy      “shall        not    be      considered

                                          9
sufficient to establish the operator’s capability of assuming

liability if the insurance company has been declared insolvent

and its obligations for the claim are not otherwise guaranteed.”

Id.   § 725.494(e)(1).          Thus,     the    issue    is     whether      or   not

liability for Wilder’s claims are “otherwise guaranteed.”                          Id.

Under the Guaranty Act, Wilder’s obligations for the claim are

not otherwise guaranteed by the VPCIGA.

      As     discussed   above,   the     final    date    for     filing      claims

against Rockwood was August 26, 1992.              Mullins’s claim was filed

in 2009, seventeen years after the final date to file his claim

against Rockwood had passed.            J.A. 12, 31.      As such, this is not

a “covered claim” under the Guaranty Act, and the VPCIGA is

under no obligation to pay it.                See Mounts, 484 S.E.2d at 144

(holding that VPCIGA’s liability was limited to “covered claims”

and that claims filed against Rockwood after August 26, 1992

were not “covered claims”).

      RB&F    contends   that   the     August    1992    bar    date   for    filing

claims against Rockwood is void based on our decision in Boyd &

Stevenson, which it argues was based on “general principles of

insurance law, that where the law establishes a condition of

insurance that is impossible for a claimant to perform, it is

ineffectual and void.”          Pets.’ Br. at 15.               Thus, RB&F claims

that because Mullins could not have filed his claim before the



                                         10
1992 bar date, the bar date creates a condition impossible and

must be void.        RB&F’s reliance on Boyd & Stevenson is misplaced.

       In Boyd & Stevenson, we determined that a notice provision

sent    to    Rockwood’s   claimants     after    Rockwood’s         insolvency       was

capable of two interpretations:            (1) that a claim for survivor’s

benefits was a separate claim that must be independently filed

with the VPCIGA; or (2) that a claim for survivor’s benefits was

derivative of the original claim and did not require filing with

the VPCIGA.         407 F.3d at 668-69.       We then looked to the “general

principle      of    contract   law    that     exclusionary        language     in    a

contract will be construed against an insurer,” and “adopt[ed]

an interpretation which recognizes that a survivor’s claim is

part of a miner’s original claim for filing purposes.”                              Id.

Then,    we     explicitly      distinguished         Mounts,       stating    in     no

uncertain      terms    that    the    matter    in    Boyd     &    Stevenson        “is

distinguishable from the Virginia Court of Appeals decision in

. . . Mounts.”          Id. at 669.     In Mounts, just as in this case,

the miner was diagnosed with pneumoconiosis after the deadline

for filing claims against Rockwood had passed, yet the Virginia

court held that state law prevented the VPCIGA from assuming

liability for the claim.              484 S.E.2d at 144.             The “condition

impossible” in this case is materially indistinguishable from

the facts in Mounts.         As such, Boyd & Stevenson does not apply.



                                         11
                                          B.

       RB&F contends that even if Virginia law limits the VPCIGA’s

liability, to the extent that the Guaranty Act limits liability

for    black   lung    claims,   it    is   preempted   by   the   BLBA.      This

argument     centers    on    RB&F’s   assumption   that     the   VPCIGA   is   an

insurer for the purposes of the BLBA.               If that were the case,

the Guaranty Act’s limitation might be preempted and the VPCIGA

may be obligated to cover Mullins’s claim.               See Lovilia Coal Co.

v. Williams, 143 F.3d 317, 325 (7th Cir. 1998) (holding that a

state law in conflict with the BLBA was preempted).                   We do not

have    to   reach    the    preemption     question,   however,    because      the

VPCIGA is not an insurer for this claim and is thus not covered

by the BLBA.

       The BLBA requires employers to secure their liability for

the payment of benefits by either self-insuring, or purchasing

qualifying insurance.          Specifically, the BLBA provides:

       [E]ach operator of a coal mine . . . shall secure the
       payment of benefits for which he is liable under
       section 932 of this title by (1) qualifying as a self-
       insurer in accordance with regulations prescribed by
       the Secretary, or (2) insuring and keeping insured the
       payment of such benefits with any stock company or
       mutual company or association, or with any other
       person or fund, including any State fund, while such
       company, association, person or fund is authorized
       under the laws of any State to insure workmen’s
       compensation.

30 U.S.C. § 933(a).          The Act further requires that:



                                          12
      [E]very policy or contract of insurance must contain
      -- (1) a provision to pay benefits required under
      section   932  of  this   title,  notwithstanding  the
      provisions of the State workmen’s compensation law
      which may provide for lesser payments; (2) a provision
      that insolvency or bankruptcy of the operator or
      discharge therein (or both) shall not relieve the
      carrier from liability for such payments; and (3) such
      other provisions as the Secretary, by regulation, may
      require.

Id. § 933(b).       DOL’s regulations provide that any such policy

shall be construed to conform with the requirements of the BLBA,

20 C.F.R. § 726.203(c)(6), and that every carrier who writes

insurance under the BLBA shall be deemed to have agreed to be

bound “to the full liability for the obligations under the Act

of the operator named in said report,” id. § 726.210.          See also

id.   §   726.207   (“Any   requirement   under   any   benefits   order,

finding, or decision shall be binding upon such carrier in the

same manner and to the same extent as upon the operator.”).           As

this Court has explained, the BLBA requires insurance carriers

to “step[] into [the] shoes” of the insured employer.              Tazco,

Inc. v. Dir., Office of Workers Comp. Program, U.S. Dep’t of

Labor, 895 F.2d 949, 951 (4th Cir. 1990).

      Therefore, the BLBA squarely puts the obligation to provide

insurance on the mine operator and the insurance company writing

the provision.      It is clear that mine operators must be insured,

even in the case of their own insolvency, and that any insurance

carrier who writes insurance under the BLBA is bound to the full


                                   13
liability of the covered operator.                  The issue in this case,

then, is whether the VPCIGA is an insurer under the BLBA.

     Under DOL regulations implementing the BLBA, “[i]nsurer or

carrier   means    any     .   .   .     fund,   including          any    State   fund,

authorized    under     the    laws    of   a    State     to      insure      employers’

liability     under     workers’      compensation       laws.”           20   C.F.R.   §

725.101(a)(18) (emphasis added).

     The VPCIGA, however, is not an insurer in the traditional

sense.       As   its     name     suggests,      it     is     a    state      guaranty

association; it only “steps into the shoes” of the insolvent

insurance company for “covered claims.”                  Va. Code Ann. § 38.2-

1606(A)(1).       The    VPCIGA    “is    not    engaged      in    the     business    of

making contracts of insurance,” Northland Ins. Co. v. Va. Prop.

& Cas. Ins. Guar. Ass’n, 392 S.E.2d 682, 685 (Va. 1990), 6 but

rather is designed to “provide prompt payment of covered claims

to reduce financial loss to claimants or policyholders resulting

from the insolvency of an insurer.”                Va. Code Ann. § 38.2-1600

(emphasis added).       As the Supreme Court of Virginia has held:


     6 RB&F attempts to distinguish Northland because it dealt
with subrogation claims against the VPCIGA under Virginia’s
uninsured motorist statute.    The type of claim, however, is
irrelevant; the important fact is that although the VPCIGA
assumed responsibility for some claims against an insolvent
insurer, it does not write insurance contracts and does not
become an insurer for all of an insolvent insurance company’s
claims. See Northland, 392 S.E.2d at 685.



                                          14
        The [Guaranty] Act, considered as a whole, clearly
        indicates that the General Assembly did not intend
        that the Association merely “step into the shoes” of
        the insolvent insurer.   Establishment of the [VPCIGA]
        affords a mechanism for the timely payment of
        appropriate claims to avoid financial loss to certain
        classes of people.    But it is not merely a solvent
        substitute for an insolvent insurance company.

Va. Prop. & Cas. Ins. Guar. Ass’n v. Int’l Ins. Co. (Foster),

385 S.E.2d 614, 616 (Va. 1989). 7

     Specifically,    with   regards      to    Rockwood’s    insolvency,   the

Virginia courts have further made it clear that VPCIGA was not

intended to cover claims against Rockwood after August 26, 1992.

Mounts, 484 S.E.2d at 144.           In Mounts, the court held that

because the claim in question was filed after the 1992 cutoff

date,    “the   [VPCIGA]   was   barred    by    statute     from   considering




     7 RB&F argues that Foster shows that under Virginia law, the
insolvency of Rockwood created a legal relationship between
Wilder and the VPCIGA for the purposes of BLBA claims against
Wilder, bringing the VPCIGA under the BLBA. However, according
to the Supreme Court of Virginia, that legal relationship exists
“only to the extent” that it was not otherwise limited by the
Virginia Guaranty Act.       Foster, 385 S.E.2d at 616 (“The
insolvency of [the insurer] created a legal relationship between
[the covered entity] and the [VPCIGA] which reflected the terms
of the [insurers] policy only to the extent they were not
otherwise limited by the [Guaranty] Act.”) (emphasis added). As
explained in Section I, supra, the legal relationship between a
claimant and the VPCIGA is limited to “covered claims,” which
Mullins’s is not.



                                     15
Mounts’         claim   to   be     ‘a    covered         claim,’    .   .   .    and    was   not

authorized to pay benefits.”                   Id. 8

       To the extent that a state guaranty association steps into

the    prior       insurer’s        shoes      as    to    the     particular       claim,     and

“insure[s]         employers’        liability            under     workers’      compensation

laws,” that guaranty association is an insurer under the BLBA.

20 C.F.R. § 725.101(a)(18).                      However, the mere existence of a

state guaranty company does not then impose liability on the

guaranty         company     for    all     of      the    state’s    insolvent         insurance

companies’ BLBA claims.                   See 62 Fed. Reg. 3338, 3369 (1997)

(“[T]he Department and the award beneficiary may collect from a

state insurance guaranty association where state law requires

such       an    association        to    assume          the     insurers       liabilities.”)

(emphases         added).          Only   if     that      state     guaranty       association

“insure[s]         employers’        liability            under     workers’      compensation


       8
       RB&F attempts to draw a distinction between this case and
Mounts. It essentially argues that because the court in Mounts
held that the state Uninsured Employer’s Fund was found liable
for the claim instead of a prior employer, then Mounts precludes
imposition of liability on RB&F.       However, the reason the
liability did not fall to a previous employer in Mounts is
because the statute assigning liability in that case did not
require it, see 484 S.E.2d at 143, whereas the statute in this
case, the BLBA, does place liability on prior employers if the
most recent employer is financially incapable of assuming
liability, 20 C.F.R. § 725.494(e). Moreover, it does not matter
to whom liability eventually fell.    The relevant fact is that
the Virginia court held that the VPCIGA was barred by state law
from assuming liability.



                                                 16
laws,” does the association fall under the BLBA.                         20 C.F.R. §

725.101(a)(18).       Here, Virginia chose not to require the VPCIGA

to assume Rockwood’s non-covered claims--in this case, Mullins’s

BLBA claim.

     RB&F is correct in pointing out that insurers that cover an

operator’s     BLBA   claims   are     not   permitted       to    provide   partial

liability for those claims.            See Tazco, 895 F.2d at 951. 9             The

VCPIGA,    however,      is    not     providing         partial    liability    for

Wilder/Rockwood’s      BLBA    claims,       but    is    rather     assuming   full

liability of a subset of Rockwood’s claims.                        See Mounts, 484

S.E.2d at 144 (noting that the VPCIGA assumed full liability for

“covered claims,”--claims made before August 26, 1992--but was

barred    by   statute    from       assuming      liability       for   non-covered

claims--claims made after August 26, 1992).                    In Tazco, we held


     9 RB&F makes an additional argument based on this Court’s
decision in Tazco. It argues that Tazco’s requirement that DOL
provide notice of a claim to both the coal mine operator and the
insurer means that DOL was required to provide notice first to
the VPCIGA, regardless of whether it was liable for the claim
under state law. However, Tazco was a challenge brought because
an interested party--the insurance company that covered the
claim--did not receive notice of a claim and subsequently
defaulted.   The ruling rested on due process grounds, namely
“the guarantees of notice and opportunity to be heard,” which
the court reasoned were “[p]aramount among [constitutional]
rights.”   895 F.2d at 950 (citation omitted).   Here, RB&F has
had an opportunity to be heard; it is simply arguing that VPCIGA
should have been given notice first, in case they agreed to
cover the claim.   The DOL’s actions here did not deny RB&F due
process.



                                        17
that the insurance carrier was properly identified as the party

in interest because “the carrier takes on all the employer’s

responsibilities in connection with insured claims.”                         Id. at 951

(emphasis     added).      Under    state      law,    however,       the    VPCIGA    was

barred from taking on all of Rockwood’s claims.                       See Mounts, 484

S.E.2d at 144.        Indeed, it was barred from taking on this claim.

       In order to comply with the BLBA, it is clear that Wilder

and    Rockwood   were    required    to       cover    all    future       BLBA   claims

against     Wilder.      See   30    U.S.C.      §     933(a)-(b).          Wilder    and

Rockwood’s reliance on the VPCIGA to cover all future claims

after both companies’ insolvency, however, was misplaced.                             Full

coverage of all claims against an insolvent insurer was not the

purpose of the Guaranty Act.                See Va. Code Ann. § 38.2-1600.

Wilder and Rockwood could have--and likely should have under the

BLBA--contracted with a reinsurer to cover the company’s future

BLBA    liabilities.       However,       Wilder       and    Rockwood’s      misplaced

reliance does not impose liability, as a matter of federal law,

on    the   VPCIGA. 10    Under     DOL    regulations,         the    liability       for




       10
       RB&F argues that “Rockwood could not have been discharged
from its bankruptcy reorganization without a plan to fully cover
the workers’ compensation claims for which it was liable and no
bankruptcy judge would have accepted the proposition that
Rockwood accounted for these liabilities by relying on a prior
carrier and employer like Old Republic and RB&F.” Pets.’ Br. at
24. RB&F, however, offers no support for this statement and no
evidence that Rockwood’s bankruptcy reorganization shifted all
(Continued)
                                          18
Mullins’s claim falls to the “potentially liable operator” that

most recently employed the miner.                   20 C.F.R. § 725.495(a)(1).

Since   Wilder     cannot    be     found      to   be    a     “potentially    liable

operator”    under   20     C.F.R.    §    725.494,       the    liability     properly

falls   to   the   miner’s    next    most      recent     employer,    RB&F.        Id.

§ 725.495(a)(3); see also Armco, Inc. v. Martin, 277 F.3d 468,

476 (4th Cir. 2002) (reaching a similar conclusion under earlier

DOL regulations implementing the BLBA).



                                          C.

     RB&F     additionally        argues       that      the    regulatory     burden-

shifting     analysis     applied    by     the     ALJ   violated     the     APA   and

Director, Office of Workers’ Compensation Programs, Department

of Labor v. Greenwich Collieries, 512 U.S. 267 (1994).                          But we

need not answer this question here; the burden of proof was

irrelevant to the outcome of this case.                   See N & N Contractors,

Inc. v. Occupational Safety & Health Review Comm’n, 255 F.3d

122, 127-128 (4th Cir. 2001) (holding that even an erroneous

shifting of the burden of proof is harmless if the decision did

not turn on that burden); see also In re Schoonover, 331 F.3d

575, 577 (7th Cir. 2003) (“[T]he dispute was resolved on wholly




of the company’s future BLBA liabilities to the VPCIGA (which
again would have been directly contrary to Virginia law).


                                          19
legal grounds, so the burden of persuasion is irrelevant.”).

The only disputed issues in this case are questions of law:

whether the VPCIGA is liable for this claim under Virginia law,

and if not, whether the Guaranty Act is preempted by the BLBA.

The relevant facts--Wilder’s bankruptcy, Rockwood’s insolvency,

the bar date for claims against Rockwood, and the date Mullins’s

claim   was   filed--are   not   contested.   As   such,   the   burden-

shifting analysis under 20 C.F.R. § 725.495(c) had no impact on

the ALJ’s or the BRB’s decision.



                                   IV.

     For the foregoing reasons, the decision of the Benefits

Review Board is

                                                             AFFIRMED.




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