In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2189

OLD BEN COAL COMPANY,

Petitioner,

v.

OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR, and ANNA MELVIN,

Respondents.

____________

On Petition to Review an Order of the

Benefits Review Board, U.S. Department of Labor.

No. 94-BLA-1116

____________

ARGUED JANUARY 11, 2007—DECIDED JANUARY 25, 2007

____________

Before BAUER, POSNER, and FLAUM, Circuit Judges.

POSNER, Circuit Judge. Robert Melvin first applied for

black lung benefits in 1980. 30 U.S.C. §§ 901-45; 20 C.F.R.

§§ 727.200-.206. After amazingly protracted proceedings

unnecessary to describe, last year the Benefits Review

Board upheld an award to his widow of benefits, Melvin

v. Old Ben Coal Co., BRB No. 04-0506 BLA (Dept. of Labor

July 11, 2005), that a petition for review, in the name of

Old Ben Coal Company, asks us to set aside. In her brief

in response to the petition, Mrs. Melvin asks us to dismiss
2 No. 06-2189

the petition on the startling grounds that the purported

petitioner, Old Ben Coal Company, neither exists nor is

represented by counsel. A corporation cannot litigate in

federal court pro se. Rowland v. California Men’s Colony,

506 U.S. 194, 201-02 (1993); Muzikowski v. Paramount

Pictures Corp., 322 F.3d 918, 924 (7th Cir. 2003).

Old Ben did not deign to file a reply brief, so we ordered

it to do so. It is now apparent that the case must be dismissed, though not on the precise grounds advanced by

Mrs. Melvin: that no lawyer filed an appearance in this

court and that Old Ben is deceased. A party’s counsel need

not file a formal appearance in this court, and the dissolution of a firm need not abate suits by or against it,

Canadian Ace Brewing Co. v. Joseph Schlitz Brewing Co., 629

F.2d 1183, 1185-86 (7th Cir. 1980), since “the dissolved

corporation might have a successor that could be substituted for it and the suit continue.” BondPro Corp. v. Siemens

Power Generation, Inc., 463 F.3d 702, 705 (7th Cir. 2006). Old

Ben, however, as we’ll see, has no successor.

In 2004, a bankruptcy judge ordered the liquidation of

Old Ben together with its parent, Horizon Natural Resources Company. But the order states that pending black

lung claims against the debtors in the bankruptcy proceeding, including Old Ben, “shall not be dismissed but

instead, allowed to proceed to final adjudication with the

applicable debtors as parties. Finally adjudicated claims

that result in benefit awards will not be enforced against

the Debtors but rather will form the basis for collection

from any other responsible parties therefore, including

without limitation, the Debtors[’] sureties under the

[black lung statute].” In re Horizon Natural Resources Co.,

No. 02-14261, slip op. at 44-45 (Bankr. E.D. Ky. Sept. 16,

2004). That was a confusing order. Old Ben was liquidated
No. 06-2189 3

and no successor designated; and because suits against it

were allowed to proceed only outside the bankruptcy

court, claimants could not satisfy their claims out of assets

of the debtors’ estates in bankruptcy. But although the

bankruptcy proceeding is not yet closed, apparently there

are no assets.

Several months after the bankruptcy court’s order,

while the Melvin case was pending before the Benefits

Review Board, Greenberg Traurig LLP, the law firm that

had represented Old Ben in that case, withdrew as counsel. But after the Board affirmed the award of benefits,

the firm filed a motion for reconsideration, and, after that

was denied, filed the petition for review in this court, filed

briefs, and appeared at argument. It never filed a formal

appearance in this court, but none was required. 7th Cir. R.

3(d). What was strange was the representation of a company that no longer had any palpable existence or successor.

In the reply that we ordered, Greenberg Traurig argues

that the bankruptcy judge’s order “preserved Melvin’s

claim against Old Ben.” That is not precise. Mrs. Melvin

seeks nothing from Old Ben, which indeed has nothing

that it could give her or anyone else. She had a claim

against Old Ben, but because of Old Ben’s bankruptcy the

claim has been paid by the Department of Labor out of the

Black Lung Disability Trust Fund, which backstops employer liability to miners disabled by black lung disease. 26

U.S.C. §§ 9501(a), (d); Allen R. Prunty & Mark E. Solomons,

“The Federal Black Lung Program: Its Evolution and

Current Issues,” 91 W. Va. L. Rev. 665 (1989).

The Labor Department is not seeking anything from Old

Ben either. Old Ben has nothing—any doubt on that score

having been dispelled by the bankruptcy court’s action in
4 No. 06-2189

cutting Old Ben free from the bankruptcy proceeding,

implying that the company has no assets that a bankruptcy

trustee might seek to preserve against black lung claimants

or any other claimants or creditors of Old Ben or its equally

defunct parent, Horizon. Old Ben has no possible stake in

this litigation. It is therefore not a real party in interest,

which is to say a party that has a legally protectable

interest in the outcome of the suit. It is a party in name

only.

The only entities with any possible interest in upending

the award of benefits to Mrs. Melvin, it turns out, are B-P

America and St. Paul Travelers Insurance Company. Once

upon a time, Horizon (Old Ben’s parent) was owned by

Standard Oil of Indiana, which was later acquired by B-P

America. Old Ben tells us that pursuant to 30 U.S.C.

§ 934(b)(1), the Department of Labor may try to recover

the amount of the benefits that it has paid to Mrs. Melvin

from St. Paul, which had issued a surety bond to Standard Oil. We add that the Department could do so only

if B-P America (as Standard Oil’s successor) is liable to

the Department, since a surety’s liability is derivative

from the liability of the beneficiary of the surety’s bond.

So Greenberg Traurig is pursuing this case on the offchance that a nonparty, B-P America or the St. Paul insurance company, may be liable to the Department of

Labor, which though named as a respondent in the petition for review has not filed a brief. It was the Department

that awarded Melvin the benefits that Greenberg Traurig

is challenging, and it is content to allow Mrs. Melvin’s

lawyer to defend the award. The Department may want

to obtain reimbursement of those benefits from B-P or

St. Paul, and conceivably that possibility might have

enabled either of those companies or both to intervene. But

neither has tried to intervene either in this proceeding or
No. 06-2189 5

in the administrative proceeding, as it could have done.

Any entity, such as an insurance company or a surety,

that would be prejudiced by an award of black lung

benefits is entitled to intervene in the administrative

proceeding with the rights of a party. 20 C.F.R.

§§ 725.360(a)(4), (d). It can seek intervention in this court

as well. Fed. R. App. P. 15(d). Had B-P America or the

St. Paul insurance company a sufficient stake in the

litigation to be entitled to participate as a party, it should

have sought party status. Neither company has done so

and therefore neither is a party. The only entity seeking to

invoke our jurisdiction, namely the ghost of Old Ben,

cannot do so, as it has nothing to lose or gain.

Greenberg Traurig acknowledges that it is being paid

by B-P America and St. Paul. It says, “There is nothing

unusual or legally suspect for potentially responsible

parties to hire attorneys to defend their interests.” Indeed

not. But if X has nothing to gain from winning a suit, it

cannot sue even if Y is paying a lawyer to defend Y’s

interest in the outcome of X’s suit. The existence of that

interest does not make X, which in this case is Old Ben, a

real party in interest. Y would have to intervene if it

wanted to protect its interest. It could not protect that

interest by directing its lawyer to represent a named party

that was not a real party in interest.

DISMISSED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-25-07