UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CLINCHFIELD COAL COMPANY,

Petitioner,

v.

DONALD E. LONG; DIRECTOR,

No. 95-1805

OFFICE OF WORKERS' COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(92-2590-BLA)

Submitted: December 19, 1995

Decided: January 12, 1996

Before HAMILTON and MOTZ, Circuit Judges, and PHILLIPS,

Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

Timothy Ward Gresham, PENN, STUART, ESKRIDGE & JONES,

Abingdon, Virginia, for Petitioner. Donald E. Long, Respondent Pro

Se; Patricia May Nece, Jill M. Otte, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Donald Long filed an application for black lung benefits under 30

U.S.C.A. §§ 901-945 (West 1986 & Supp. 1995). Clinchfield Coal

Co. (Clinchfield) raised a statute of limitations defense under 20

C.F.R. § 725.308(a) (1995). The administrative law judge (ALJ) ruled

that the claim was timely filed, but that Long had not established that

he suffered from pneumoconiosis or that he was totally disabled by

the disease. Long did not appeal this decision, but Clinchfield sought

to appeal to the Benefits Review Board (Board). Clinchfield urged the

Board to affirm the ALJ's ruling on the merits, but to reverse his

holding that the claim was not time-barred. The Board dismissed the

appeal, holding that there was no justiciable controversy. Clinchfield

appealed to this court.

We affirm the Board's action dismissing the appeal. Under the relevant regulations, only a party or party in interest aggrieved by an

ALJ's decision may appeal to the Board. A prevailing party may file

a cross-appeal to challenge any "adverse findings of fact or conclusions of law." 20 C.F.R. § 802.201(a), (b) (1995). The Director,

Office of Workers' Compensation Programs (Director) contends that

under these regulations, Long is the aggrieved party. Clinchfield is the

prevailing party, as it has not been held liable for benefits. The fact

that the company was not persuasive on each one of its defensive

arguments does not render it an aggrieved party. The Board's interpretation of its own regulations is generally entitled to deference on

judicial review. Malcomb v. Island Creek Coal Co., 15 F.3d 364, 369

(4th Cir. 1994).

Clinchfield's argument that it will be unfairly bound by the statute

of limitations ruling in any future actions by Long is not persuasive.

The ruling of the ALJ would not operate as a bar, because Clinchfield

did not have full and fair opportunity to litigate the issue, and had no

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opportunity to obtain review of the ALJ's decision. See In re DES

Litig., 7 F.3d 20, 23-25 (2d Cir. 1993); RESTATEMENT (SECOND) OF

JUDGMENTS § 28(l) (1982) (relitigation of an issue not precluded if

party could not, as a matter of law, have obtained review). Thus,

Clinchfield was not an aggrieved party with standing to challenge the

ALJ's ruling in its behalf, and the Board correctly dismissed the

appeal.

The Board's opinion contains ambiguous language suggesting that

it affirmed the ALJ's decision on the merits as well as dismissing

Clinchfield's appeal. We vacate that judgment and remand to the

Board so that it may eliminate that language and make clear that the

appeal is dismissed. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED 

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