morning as for two minutes for rebuttal and may please the court this is a black long claim that involves a situation where claimant filed a claim back in the one nine hundred ninety s there was a determination that arkansas cal on the merits based on the record that arkansas call was not the court responsible party for the claim claimant filed another claim arkansas kohl claimed that it was already dismissed from from the case it was not responsible for his benefits and that the department of labor's effort to reassert liability was barred by a couple of things where by statute one that is the section  litigation federal agency litigation in this congress as expressly provided that it does not apply and third of all it the department of labor has waived his right under any normal sense of waiver to make a claim that that arkansas calls is the current responsible party and the fact is that the waiver in this situation has caused extreme prejudice to arkansas code to be able to prove its case because we still don't know who the current responsible party is and whether these later employers part when labor imposes liability on the list employer that employed the minor for a year there was than a year he should have been the responsible party there's no reason why he didn't have insurance except maybe the labor department lost the paperwork and for those three reasons and under any other circumstances and or any other kind of litigation where there had been a final adjudication by a judge on the merits with a record and nothing effort and nothing changed the party who had prevailed in that litigation has to its responsibility would not be required to really get a case and yet here we are in this case the first point i'd like to make is that the statute really ought to controlled this and section twenty one a long provides that if you don't file an appeal or file for modification accordance with the provisions of the long track the decision of the ministry of luggage is final now congress knows what final means and we know what final means but the department of labor doesn't seem to know the final at least on this kind of case now we know that this court has held that claimants can get another shot that's up at the supreme court in there from on time we don't know where that's to go that case that issue is going to go on for a long time but this is not a question of claim it's experiencing a change in condition but what do you mean that issue's been at the supreme court and it's going to stay there a long time that can stay there that it's going to be around for a long time there but you worth of extensions on the ice and so it's still there but that that's irrelevant to this because this is not a matter where you have a change condition this is not a matter where is the department of always argues you have a a new cause of action there's nothing new here this is the same case and the reason why we're here is because the first administrative law judge in one nine hundred ninety one s the labor department ordered t would judge in that case the department of labor initially contested isn't that correct isn't the record show that he she was contested even though it made italy not briefed well it wasn't didn't put  the issue well i think it was pretty pro forma they didn't do anything to contest it they just said they contested it when the playfield they filed a brief movie didn't they did not file a brief in opposition your motion to dismiss  opposition to that motion yes so it isn't that they didn't do anything they file them they file the opposition now then there's a hearing and they didn't produce any evidence right and they didn't brief the ultimate mean the thing is that they were simply saying that our motion to be denied and they would prove why they know there is no evidence to prove why they didn't brief something that was supported by a record they simply opposed it i don't know i mean that's they participated but they participated in a completely ineffective way but your argument waver would call would require affectively knowing intentionality on their part and so if they oppose only means what it says is a mystery one judge is required to decide all issues that are on the record before and that was one of the issues that was on the record before and he decided it and that was what he was supposed to do and so looking at the  of the moving to the collateral suckle issue first i want to say the supreme court has held a million times that agencies have no authority to waive finality without express and we mean by expresses words in a fair opportunity to litigate and working to an extent to the issue in the prior proceeding oh director failed to do so by not appearing at the hearing or submitting evidence primary question is whether the determination  determining the router of a parent in the hearing at some point you haven't had a lot of experience with these cases nobody is going to bet their pension that someone is going to win or lose a black one case and for the department of labor to say that they were relying on a determine their judgment somewhere up in the whatever floor of their bosses live on that this case wasn't going to be a winner is is just blown smoke that is completely invalid reasoning and it never happens it turned out they were correct well sometimes you're right and sometimes you're wrong but there was no determination and if they had produced some evidence to show that there was a determination when they you know they file memos and stuff they make decisions based upon the way government does it if they had shown we decided we're not going to bother with this case then then that might have some weight but here they d that and it never happened and to tell you the truth you know what i think they're wrong about who the responsible party was i think they lost the paperwork to sixteen years later weeks we reaped the benefits of the prejudice caused by what the labor department did we tried to take you know there's personal liability for these cases for people who don't obtain of shirts we found one guy who was involved in the owner of that later company and we got him to his testimony and we still didn't have insurance and he said we had get permits he testified and you can get a permit in kentucky without having workers comp insurance and play something else you can't get worker's comp insurance in kentucky without covering the federal risk it's impossible and so he thought he had insurance he thought he had permits to mine so he had to have insurance so where's the paperwork we can't get it you know the labor department says that the supreme court had already decided that we don't have a burden to prove we're not responsible it's not our job it is the just question of whether it's necessary it seems like it's almost a chicken and the egg because you say there's no point in determining whether the person had black lung until after you've determined whether the who the responsible parties government responds and says look there's no point in even determining  responsible party unless we determine whether the person is intitled to a pension so they seem to both be plausible arguments why is it not correct to say you don't it's not necessary to find who is the responsible party if there is no liability for benefits first of all you're in what i'm saying is that you could never know there's going to be liability from that if it's i mean you've seen these cases before people come in with evidence people file for modification a year later if there's been a final determination which is what the labor department probe should but the thing is that that you can't know the and this is a complete this is this is an invented argument sixteen years after the ferry i'm just not following you can't know what you can know whether the claim is going to lose the case i understand that i got that but what what is wrong about the analytical argument being made by the government that you determine first if the person's a title to benefits and then if they are you determined who is the responsible party it's not the way they do or the regulations don't work that way and besides that none of it is right since the regulations don't work that way is lots of sweeping statements of all out is the way it works we don't really know how it works in the sense that we're not there doing these things every day like you are so as a practical matter you do a lot of this right do you do a lot of these black  if you look at at the orders that come out of the department over a long period of time which for example do they discuss first or is defensible party is mentoring they're required to do it by the regulations they do a responsible party first so the analytical process in the order is always who is the responsible party and then are they actually responsible for something that's right ok and i want to go to the regulations now and this question of corporal stop oh they point to first of all this that as one case was decided in one thousand nine hundred one but let's just put that aside for a moment and look at what the regulation says it says that clinton you can really get issues when a claim infos and claim of whether who was responsible they didn't do what they were is to do they didn't really file a brief all the it was contested and asked for the right to contest and when they didn't contest it they didn't exercise the right they waived it even is no documentary evidence relevant to the ground set forth unfair of a to the responsible party determination may be admitted in any further proceedings unless it is admitted with a time limit set forth in the section so labor party and didn't admit their own evidence they don't want to be bound by their own regulation and they don't want to be bound by the principles of collateral estoppel orly a p a which required the administrative law judge to decide this issue and they knew that the gale g had decided regulation of subsequent claims says that once a claimant demonstrates a change in condition no findings made in the previous claim with the exception of those are failure to contest or stipulate stipulated to are binding and subsequently as your honour's noted we didn't we definitely contested it in the original claim that's sort of a term of art what it means a contest is there's a sheep that gets passed up from the district director to the l j listing a list of contested issues it's in our appendix i'm sure you've all seen it and it shows that we did contest the issue and we didn't stipulated so the  regulation applies here and the rationale behind the rules simple if you didn't have that rationale you would have cases where there was an injury where would be for you all the time we were uninjured by this there was no reason for us to appeal it  and essentially i'm not sure that we could which you're sort of conflating two of the four arguments that the company is making here is as i understand it you're starting out talking about waiver but you're but you're answering  the waiver argument by by saying there's no us stoppel here so if we just start with and we stick with waiver just explain to us again why simply apparently filling out a piece of paper suffices to say you contested the issue when as the i j a says back in one thousand nine hundred two you didn't send a representative you failed to submit any evidence accordingly i find so on and so for it well the the language of the regulation itself we contested it we also i thought you had contested by virtue of filing a brief is that what you're calling the the sheet no it's i think it's what is the sheet i think it's  operator is contested so in terms of not contesting for the hearing we fit into the plain language of of regulation that the correct so that you're contesting that yes and that's actually what the greater just so we understand the entire action taken by the director is checking a box don't we also there was a motion to dismiss that was file actually i mean this is something you want to look at assigned by this claes examiner so here she is checking these boxes and apparently must be looking to something in order to check the box whether it is or isn't contest what are they looking at when they fill up the sheet well it's just an indication it gets passed up to the l z after the district director level and the district director needs to list the issues that are contest for the hearing and it's as simple as checking the box at the site how do they know whether to check the box that it's been contested well in this case it sort of works in reverse because it was the drip district director names are responsible operator and there are responsible operator in this case contested  that becomes a contested issue and it's checked on the box and they were accepting liability we thought they were responsible therefore we can test it for the hearing and that's the sheet that you provide to indicate that and i just want to say that it's more than we also responded to the motion to dismiss in and so there is to the response of the motion to dismiss as well which is what the regulation acquires us to do if i get back so out of the regulation we did contested for the hearing collateral stoppel doesn't apply in this case because two the four elements are met the first is you have to have a full and fair opportunity to liti we were injured so we didn't have an incentive to appeal and there's an argument we could or couldn't appeal and secondly the club as you mentioned earlier response with the operator designation isn't necessary to the outcome the outcome of this case was determined completely by the medical records so glad will stop as a matter of law doesn't apply the regulation was fault and in terms of naming the responsible operator council was was fairly adamant about the part of the labor not not doing its job the regulation puts the burden on the coal company after the department searches its records of insurance and submits the form that says that there is no record of insurance then the burden switches to the coal company all they had to do with all the regulations would be to put on evidence that  the subsequent company could pay or that it was a successor operation and and one of the officers the company a little hard for them to prove that if you're the one that's the keeper of the records they say you lost it right out of the i not sure how how does that proceed if that's the case which i was having twenty years ago and it's pure speculation that we lost it so there's there's nothing in the record about what happened but what is in the record is there was a no notice that the most recent company did not have insurance so we searched the files we we figured out we put everybody on notice and then the burden of the regulations which is to the coal company to come forth the only contest between employers isn't that correct the question you have to have employed the person for over a year right so so what we've got here is we've got the earlier employer say it wasn't that there is a lighter employer that employed him for a year and i think the evidence was the lighter employer employed him for eighteen months or something but what we've got is two employers both of whom employed him for a relatively short period of time right and the records indicate that the first employer is the one who meets the statutory requirements i mean is it i'm just struggling i understand that it is significant financial but we're looking at the remedial nature of this statute and so what the statute is saying is if you did it over if you employed this  gentleman over a year or if someone else later employed him over a year that's how you choose who is why a bill and responsible and if neither of them had the necessary insurance then the fund picks it up let's go it's not like we had somebody who employed him for twenty years after the after arkansas coles we've got to employers who employ him for about the simon man of time and the question is who met the statutory requirements so that the remedial nature of this statute can be effectuated through one of the employers and i'm missing something or is that the day or no that's absolutely correct and the regulations were followed in this case to effectuate exactly what  making process which you replied of that really what would you have to deal with here it's the nation the nature of black lung is that it changes all the time so that the regulations recognise that so the regulation the cover subsequent is shows that one when one element changes that effectively resets the other findings and the reason it does that is so a party that can't appeal because it's one isn't saddled with adverse findings down the road and with that have cases where there were benefits awarded where we would all still be here again fighting over a claim where there is no award so it's the only way to affectively make the system work is and it's embodied in the regulation which was climate has black long disease correct and that is the normal course but that doesn't mean in a subsequent claim it happens in every claim so it's up to claim as a separate cause of action so if one of the elements changed then you would go through the same analysis in a subsequent claim about responsible operator which happened here and it's not like it benefits only the trust fund it's applied equally and in some cases it would benefit coal companies and in some cases like the present it benefits the trust them to come forth with evidence that the more recent employer had the means to pay the claim and they didn't come forward with anything they came forward with the specular deposition from  executive who was unable to to name any of the financial capabilities or the relationship between companies so it is much as it is i think there's a lot of sort of side noise here mr solomons let's assume that it was the responsible operator finding was a necessary finding and that's the way things normally are done let's just assume that i have no idea what really to make of that form that has check marks on it so i'm just going to ignore that because it seems a strange thing for either party to be relying on to me it's there but i am looking at the director's response to the motion to dismiss employer and curiouser and it's not just we we oppose it it tells you why they oppose they've looked at their records the the operator was and the other operator wasn't insured on the date of the claim it's less exposure and then they talk about that one was dissolved too so it's correct to say that they vent didn't prove up on that at the hearing i get that but if if it's dispositive as to whether they did contest it just explain to me why in this director's response was filed april seventeenth one thousand nine hundred ninety one that that is not sufficient well i mean the the administrative law judge needs evidence to make a decision for the government to come in and say the minister of what i just did not accept what he said exactly so you're equating contesting with offering group no no it doesn't say that i'm that you contest  i am talking about whether there was an effort on the part of the department of labor to participate in this litigation and to print present their evidence like every other party would have to do and they didn't do that you know they say a lot of things so  you have a case that says that to contest that you have to show up at the hearing an offer of it's as opposed to that i'm aware of i agree that would be prefer that only make sense but i don't think you'll ever have a case like that because if you don't put any evidence and you don't brief the issues and you don't mind materially participate in the case then you haven't defended seems to me that would be the case if you were a district court judge and somebody didn't show up and didn't put any evidence and they effectively were defaulted that would be the end of the game but wouldn't that be the end of the game only for independent causes of action and don't you have here a statute whose purpose is a light and progressive illness and the statute itself and the case law recognizes the right to bring a subsequent klein it just seems to me your whole argument hinges on your allegation that they don't have a right to bring substantive on a subsequent call a subset first of all question is do you have any circuit law is there any circuit in our nation that has recognized or determined that you may not bring a second new independent subsequent calls of action under this it's not a new code let me just let me just say the answer to that is no but there is no statutory authority for it if you could find it cited but there is none the department of labor may decide up they made up this stuff about thank you case will be submitted