UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

INDIAN MOUNTAIN COAL COMPANY;

OLD REPUBLIC INSURANCE COMPANY,

Petitioners,

v.

No. 96-2262

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR;

OWEN BOLLING,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(91-1705-BLA)

Submitted: March 31, 1998

Decided: June 11, 1998

Before WILKINSON, Chief Judge, and WILKINS and

WILLIAMS, Circuit Judges.

_________________________________________________________________

Reversed and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Mark E. Solomons, Laura Metcoff Klaus, ARTER & HADDEN,

Washington, D.C., for Petitioners. J. Davitt McAteer, Acting Solicitor

of Labor, Allen H. Feldman, Associate Solicitor for Special Appellate

and Supreme Court Litigation, Nathaniel I. Spiller, Deputy Associate
Solicitor, Mark S. Flynn, Senior Appellate Attorney, UNITED

STATES DEPARTMENT OF LABOR, Washington, D.C., for

Respondents.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The issue presented by this appeal is whether Department of Labor

("DOL") administrative law judges ("ALJ") have jurisdiction to adjudicate actions brought by coal mine operators to recover benefit overpayments to black lung claimants where the Director, Office of

Workers' Compensation Programs ("Director"), has no financial

interest in the outcome. Indian Mountain Coal Company ("employer")

appeals the decision of the Benefits Review Board ("Board") finding

that jurisdiction does not lie in such circumstances, arguing that the

Board's decision is unsupported by the statutory framework of the

Black Lung Benefits Act ("BLA"), 30 U.S.C.§ 901 et seq. (1994),

and its accompanying regulations, and violates employer's Due Process rights by denying it a remedy where an overpayment occurs. The

Director responds, agreeing with employer that the relevant statutory

and regulatory provisions do not support the Board's decision, but

disagreeing with employer's Due Process argument. We agree with

the Director and employer that the applicable regulations are valid

and clearly empower ALJ's to resolve actions in which only an

employer or insurance carrier seeks recoupment of overpayments. In

light of our holding, we need not address employer's Due Process

argument.

This action began on July 16, 1979, when Owen Bolling, a former

coal miner, filed a claim for black lung benefits under Part C of the

BLA. Part C claims are claims filed after December 31, 1973, which

are reviewed by the Department of Labor and paid by a responsible

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operator where one can be found. See 30 U.S.C. §§ 931-945 (1994).

A district director resolved Bolling's claim in his favor in August

1980 and named employer as the operator responsible for payment of

his benefits. Employer contested entitlement, however, so the DOL

commenced interim benefit payments to Bolling from the Black Lung

Disability Trust Fund ("Fund") pursuant to its authority under 30

U.S.C. § 934(a)(1) (1994). DOL informed Bolling, however, that he

might have to repay these benefits if his claim were ultimately denied.

After an ALJ awarded benefits to Bolling in December 1982, DOL

asked the employer's insurance carrier, Old Republic Insurance Company ("carrier") to reimburse the Fund for benefits already paid, totaling $22,857.10, and to begin direct compensation payments to Bolling

until employer's appeals were resolved. The employer complied with

both requests, but ceased making monthly payments in August 1986

when the Board reversed the ALJ's decision. By this time, employer

had paid $24,743.10 directly to Bolling, who had received a total of

$47,630.20 in overpayments. This Court affirmed the Board's decision in December 1987.

In June 1989, a district director ordered Bolling to repay all overpayments received directly to the employer. Following a hearing, an

ALJ also concluded that Bolling was liable for repayment of the

entire amount, but directed Bolling to repay the Fund and the

employer separately in the amounts he received from each, respectively. The ALJ rejected Bolling's attempt to establish that he was

entitled to a waiver of the overpayment received from the employer,

based on a regulation which states that waiver is unavailable where

the overpayment is made by a responsible operator. See 20 C.F.R.

§ 725.547 (1997). The ALJ found that waiver was potentially available for the monies paid directly by the Fund, but found that Bolling

failed to qualify for waiver under the applicable regulatory criteria,

because he possessed adequate financial resources to repay the overpayment without undue burden to himself. See 20 C.F.R. § 725.542

(1997).

Bolling appealed to the Board, which set aside the ALJ's order

based on its finding that the ALJ lacked subject matter jurisdiction.

The Board reasoned that because the regulations do not permit waiver

of overpayments made by employers, there was no continuing contro-

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versy between Bolling and the employer. Moreover, because the

employer fully reimbursed the Fund for the interim payments it made

to Bolling, the Director lacked any economic interest in the case. On

reconsideration, the Board reiterated its view that the case provided

no justiciable controversy to decide, and further found that circuit

cases construing the recoupment provisions of the Longshore and

Harbor Workers' Compensation Act ("Longshore Act") 33 U.S.C.

§ 901 et seq. (1994) lent further support to its original holding.

Employer subsequently filed this appeal, in which Bolling elected not

to participate.

The statutory authority for actions to recover overpayments is codified at 30 U.S.C. §§ 932(b), 940. Section 923(b) incorporates the

overpayment provisions of the Social Security Act, which are found

in Section 204(a) of that statute and codified at 42 U.S.C. § 404(a)

(1994). Because social security benefits are paid by the Social Security Administration, the language of section 204(a) speaks in terms of

overpayments made from United States Treasury Funds rather than

overpayments made by employers. Section 923(b) incorporates but

does not alter that language. Rather, § 923(b) merely states that the

provisions of section 204 "shall be applicable under this part with

respect to [eligible benefit recipients] as if benefits under this part

were benefits under Title II of [the Social Security Act]." 30 U.S.C.

§ 923(b).

The words "this part" refer to Part B of the BLA, which governs

Part B claims filed by claimants. Any claim filed before January 1,

1974 is a Part B claim, adjudicated and paid by the Social Security

Administration. See Sea "B" Mining Co. v. Director, Office of Workers' Compensation Programs, 45 F.3d 851, 852 (4th Cir. 1995).

Because black lung benefits in Part B claims were paid by the Social

Security Administration, it is not surprising that when Congress incorporated section 204 into Part B of the BLA, it made no reference to

employers.

Congress later amended Part C of the BLA, which governed claims

filed after December 31, 1973, largely for the purpose of shifting liability for benefits from the Fund to private employers. See Director,

Office of Workers' Compensation Programs v. Bethlehem Mines

Corp., 669 F.2d 187, 189 (4th Cir. 1982). The relevant amendments

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incorporated the provisions of Part B to Part C"to the extent appropriate." 30 U.S.C. § 940 (1994). Part C also incorporated numerous

provisions of the Longshore Act, "except as otherwise provided . . .

by regulations of the Secretary." 30 U.S.C. § 932(a) (1994).

The statutory references to "the Secretary" indicate the Secretary of

Labor, who administers Part C of the Act and adjudicates Part C

claims. Sea "B" Mining Co., 45 F.3d at 852. Pursuant to the discussed

authority delegated to it by Congress, the Secretary promulgated regulations which implement the provisions of Section 204(a) of the

Social Security Act. Various courts have, at least implicitly by deciding the appeal, recognized that the statutory provisions discussed, and

the regulations implemented by the Secretary pursuant to the authority delegated by those provisions, confer jurisdiction on ALJ's to

decide overpayment cases wherein the Fund seeks recovery of an

overpayment. See Bratcher v. Director, Office of Workers' Compensation Programs, 14 F.3d 157 (7th Cir. 1994); Napier v. Director,

Office of Workers' Compensation Programs, 999 F.2d 1032 (6th Cir.

1993); McConnell v. Director, Office of Workers' Compensation

Programs, 993 F.2d 1454 (10th Cir. 1993). The parties cite no cases,

nor have we located any, which address whether these provisions also

authorize ALJ's to exercise jurisdiction over recoupment actions

brought by employers.

The Secretary clearly believed that Congress intended the recoupment provisions of Section 204(a) to apply to employers. Title 20,

section 725.547 of the Code of Federal Regulations is entitled

"Applicability of overpayment and underpayment provisions to operator or carrier." Id. Subsection (a) of that section provides:

The provisions of this Subpart relating to overpayments and

underpayments shall be applicable to overpayments and

underpayments made by responsible operators or their insurance carriers, as appropriate. However, if an overpayment

has been made by an operator the provisions of §§ 725.541-

725.544 shall not be applicable.

20 C.F.R. § 725.547(a) (1997).

Sections 725.541-544 contain the criteria for establishing a claimant's entitlement to receive a waiver of his liability to repay an over-

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payment. Subsection (c) of § 725.547 authorizes the Office of

Workers' Compensation Programs to "take any necessary action," and

deputy commissioners to "issue appropriate orders. . . to protect the

rights of the parties" in overpayment cases. Id. Finally subsection (d)

of that section provides that disputes arising out of such orders "shall

be resolved by the procedures set out in Subpart E of this part." 20

C.F.R. § 725.547(d) (1997). Subpart E contains the procedural provisions which govern the conduction of administrative hearings and

appeals from administrative decisions. See 20 C.F.R. §§ 725.450-

725.483 (1997).

Thus, the Secretary created an administrative scheme for employer

actions to recover overpayments which essentially mirrors the scheme

applicable to recoupment actions brought by the Director on behalf of

the Fund, except that she elected to exclude the claimant's right to

seek waiver of the overpayment where such payment comes from an

employer. The Board did not discuss these regulations, or their underlying statutory basis, but implicitly found the regulations invalid to

the extent that they permit a recoupment action by employers. The

Director correctly contends, however, that her view as to whether

these regulations are authorized by statute is entitled to judicial deference. See Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 696-98

(1991). Similarly, we have held that the Director's reasonable interpretation of an ambiguous or silent statutory provision is entitled to

judicial deference. See See v. Washington Metropolitan Area Transit

Authority, 36 F.3d 375, 383 (4th Cir. 1994).

We agree with the Director and the employer that the relevant statutory scheme can reasonably be interpreted to authorize actions by

employers to recover overpayments, regardless of the Director's

financial interest in the case. Although the overpayment provisions

incorporated from the Social Security Act do not expressly mention

employers, Congress applied them to Part C claims, knowing that

they would typically be paid by employers. Congress created no

exceptions to the statute's overpayment scheme specifically limiting

the rights of employers.

Nor do any limitations on the rights of mine operators appear in the

Longshore Act. The BLA incorporates many provisions of the Longshore Act, some of which limit a longshore employer's right to

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recover overpayments from longshore claimants to circumstances

where the employer may receive an offset against future compensation. See, e.g., 33 U.S.C. §§ 914(j), 922 (1996).* Incorporation of

these provisions, however, does not evince Congressional intent to

liken the rights of coal mine operators under the BLA to those of

longshore employers under the Longshore Act, and thereby treat operators' recoupment rights differently from those of the Fund in black

lung cases. In contrast to the BLA, the Longshore Act does not authorize recovery of overpayments by either employers or the government, suggesting that it is the nature of the claim, rather than the

public or private nature of the payor, that Congress thought to be significant. Congress treated black lung and longshore claims differently,

expressly applying the overpayment provisions of the Social Security

Act to black lung claims but not to longshore claims. The Longshore

Act provides no reason for applying its recoupment provisions to

operators but not the Fund, and a construction applying them to both

would read out of the BLA Congress' express application of the overpayment provisions of the Social Security Act to black lung cases. It

would also run afoul of the cited cases recognizing that ALJs possess

jurisdiction to administratively adjudicate overpayment claims initiated by the Fund.

One jurisdictional provision of the Longshore Act which the BLA

incorporates provides that the Secretary may subject to administrative

adjudication "questions in respect of [a] claim." 33 U.S.C. § 919(a)

(1996). We agree with the employer and the Director that recoupment

actions involving employers are no more or less related to a claim

than recoupment actions brought by the Trust Fund, inasmuch as both

bear on a claimant's entitlement to retain compensation benefits. Section 919(a) therefore does not limit jurisdiction in this case anymore

than it does in any other overpayment case, and it is clear that ALJ's

are empowered to decide some overpayment cases.

_________________________________________________________________

*These provisions are not part of an overpayment scheme akin to that

which exists in black lung cases, but are consistent with various other

provisions in the Longshore Act that are aimed primarily at prohibiting

double recoveries. See 33 U.S.C. §§ 903, 908(j), 933(f) & (h). See also

generally Carter v. Director, Office of Workers' Compensation

Programs, 751 F.2d 1398, 1400-02 (D.C. Cir. 1985)(discussing statutory

intent to avoid double recoveries through use of offset provisions).

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Finally, any analysis of the statutory scheme cannot ignore the

broad policy-making authority that the drafters of the BLA delegated

to the Secretary. Congress specifically authorized the Secretary to

determine the "appropriate" extent to which Part B's overpayment

provisions ought to apply to Part C cases, and incorporated portions

of the Longshore Act "except as otherwise provided . . . by regulations of the Secretary." 30 U.S.C. § 932(a) (1994). We need not

decide whether § 932(a) would permit the Secretary to promulgate a

regulation which displaces an incorporated provision of the Longshore Act in the absence of authority that can be found from an examination of the BLA's statutory scheme, as we have found such

authority present in this case. That authority, together with the Director's considerable discretion, firmly supports the validity of the regulation at issue in this case.

Accordingly, we find that the Director's view that the relevant statutory provisions authorized the Secretary to promulgate regulations

granting employers the right to seek recovery of overpayments is reasonable. As these regulations were properly authorized, the Board

erred by invalidating them, and finding no basis for jurisdiction. We

also disagree with the Board's apparent view that jurisdiction is lacking on mootness grounds. It is clear that a controversy exists between

Bolling and the employer and its carrier in this case. That controversy

concerns the issue of liability for a sum of $47,630.20, and the possibility that Bolling lacks a legitimate defense to the employer's claim

that he is liable for that sum does not render the case moot. Rather,

if Bolling has no defense, the employer is entitled to an order directing Bolling to repay the overpayment.

This result is mandated by the Board's own decision in Justus v.

Knox Creek Coal Co., 16 BLR 1-95 (1992), which the Board actually

cited as authority for its finding of no jurisdiction. In Justus, after

receiving a favorable liability determination, an employer reimbursed

the Fund for interim benefits paid by the Fund and sought to recover

its overpayment from the claimant. Claimant sought a hearing before

an ALJ solely to argue that he was entitled to a waiver of his obligation to repay the overpayment. The ALJ found that because the regulations did not permit waiver where the overpayment came from an

employer, there was no need to conduct a hearing. Accordingly, the

ALJ granted summary judgment to the employer and entered an order

 8
directing the claimant to repay the entire overpayment to the

employer.

Justus appealed to the Board, which agreed with the ALJ that there

was no justiciable issue and therefore no need to conduct a hearing.

The Board, however, did not find that the ALJ lacked jurisdiction to

order repayment, but rather affirmed the ALJ's order directing such

action. Moreover, the Board found that because the employer had

fully reimbursed the Fund for all interim payments, as it was required

to do by regulation, the repayment should be made directly to the

employer, and the claimant could not seek waiver even for the payments initially paid by the Fund. See Justus, 1992 WL 105817 at *2.

The Board's also cited to its decision in Brown v. Sea "B" Mining

Co., 17 BLR 1-115 (1993) (en banc), apparently based on its view

that this case undercut the claims of the employer and the Director

that this action was in respect of a claim. We reviewed the cited decision in Sea "B" Mining Co. v. Director, Office of Workers' Compensation Programs, 45 F.3d 851 (4th Cir. 1995). We upheld the Board's

holding that an ALJ lacked jurisdiction to consider an action by the

Fund against a coal mine operator to recoup interest on monies paid

by the Fund as interim benefits to a claimant. We adopted the reasoning of other courts that such questions are collateral to an underlying

"claim" for benefits because such disputes are exclusively between

the fund and the operator and do not involve the claimant's eligibility

for some or all of the compensation sought or granted. Id. at 855. As

we have stated, however, recoupment actions such as the one at issue

are not collateral to the underlying claim because they directly concern the claimant's entitlement to keep all or a portion of the benefits

awarded to him.

Finally, we find that the Board improperly relied on decisions from

other circuit courts to support its apparent finding that the limitations

in the Longshore Act upon an employer's recoupment rights somehow deprive coal mine operators of any recoupment rights. We have

explained that those provisions do not apply in black lung cases.

Moreover, the decisions cited by the Board simply do not support its

position on this point. Rather, these decisions merely found that longshore employers could not bring recoupment actions in federal district court against claimants. See Ceres Gulf v. Cooper, 957 F.2d

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1199, 1207-08 (5th Cir. 1992); Stevedoring Servs. of Am., Inc. v.

Eggert, 953 F.2d 552, 557 (9th Cir. 1992). In this case, the employer

and its carrier properly sought to recover the overpayment through the

administrative process.

Accordingly, the decision of the Board is reversed, and the case is

remanded for further proceedings consistent with this opinion. If on

remand it is discovered that there are no contested issues left to be

decided, the Board should modify the ALJ's order to require Bolling

to pay all benefits directly to the employer. 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.

REVERSED AND REMANDED WITH INSTRUCTIONS

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