BRB No. 02-0691 BLA
FRANKLIN L. SELTZER )
)
Claimant )
)
v. )
)
LEHIGH COAL & NAVIGATION COMPANY )
) DATE ISSUED:06/20/2003
and )
)
INTERNATIONAL BUS. & MERCANTILE )
REASSURANCE COMPANY )
)
Employer/Carrier- )
Petitioners )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Order of Dismissal Granting Withdrawal of Claim of
Gerald M. Tierney, Administrative Law Judge, United States Department
of Labor.
W. William Prochot (Greenberg Traurig, LLP), Washington, D.C., for
employer and carrier.
Sarah M. Hurley (Howard M. Radzely, Acting Solicitor of Labor; Donald
S. Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate
Solicitor; Michael J. Rutledge, Counsel for Administrative Litigation
and Legal Advice), Washington, D.C., for the Director, Office of
Workers' Compensation Programs, United States Department of Labor.
Before: SMITH, McGRANERY and GABAUER, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Order of Dismissal (2002-BLA-5056) of Administrative Law Judge Gerald M. Tierney
granting the withdrawal of a claim filed pursuant to the provisions of Title IV of the Federal Coal Mine Health and
Safety Act of 1969, as amended, 30 U.S.C. §901 et seq. (the Act).[1] The pertinent procedural history of this case is as follows. Claimant filed a claim for benefits on
March 15, 2001. Director's Exhibit 1. On March 29, 2001, the district director notified employer that it had been
identified as the potentially responsible operator in the claim, Director's Exhibit 17, and employer subsequently
controverted its liability. Director's Exhibit 21. On October 4, 2001, after obtaining a complete pulmonary evaluation
of claimant, the district director issued a schedule for the submission of additional evidence, preliminarily concluding
that claimant was not entitled to benefits and that employer was the responsible operator. Director's Exhibit 12. No
additional medical evidence was submitted, and on December 10, 2001, the district director issued a Proposed Decision
and Order denying benefits. Director's Exhibit 13. On January 3, 2002, claimant requested a formal hearing,
Director's Exhibit 14, and on April 1, 2002, the case was forwarded to the Office of Administrative Law Judges.
Director's Exhibit 26. On April 25, 2002, the administrative law judge scheduled the case for hearing on June 20,
2002. On June 7, 2002, claimant filed a written request to withdraw his claim, to which employer filed objections. In
an Order issued on June 10, 2002, the administrative law judge found that employer's objections were without merit
pursuant to 20 C.F.R. §725.306. Accordingly, the administrative law judge approved withdrawal of the claim
and cancelled the hearing.
On appeal, employer contends that the administrative law judge erred in granting withdrawal of the claim
pursuant to Section 725.306. The Director, Office of Workers' Compensation Programs (the Director), responds,
urging affirmance of the administrative law judge's Order granting withdrawal. Claimant has not participated in this
appeal.
The Board's scope of review is defined by statute. If the administrative law judge's findings of fact and
conclusions of law are supported by substantial evidence, are rational, and are consistent with applicable law, they are
binding upon this Board and may not be disturbed. 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C.
§932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Because a withdrawn claim is considered not to have been filed, see 20 C.F.R. §725.306(b),
employer argues that it would be unduly prejudiced if withdrawal of the instant claim is permitted and the record
associated with it is destroyed, and that claimant would unfairly benefit if a subsequent claim were treated as a first
filing rather than as a modification request or duplicate claim. Employer asserts that it would be adversely affected by
its loss of vested litigation rights, such as the right to introduce all of the evidence developed in connection with this
claim into the record of a subsequent claim, see 20 C.F.R. §§725.414, 725.456, and the
advantages flowing from the district director's favorable decision. Employer also maintains that, consistent with the
Board's holdings in Lester v. Peabody Coal Co., 22 BLR 1-183 (2002)(en banc), and Clevenger
v. Mary Helen Coal Co., 22 BLR 1-193 (2002) (en banc), employer's interests are relevant and must be
considered by the administrative law judge in determining whether withdrawal is appropriate pursuant to Section
725.306. Employer's arguments are without merit.
Section 725.306 does not require an adjudication officer, defined as a district director or administrative law
judge who is authorized by the Secretary of Labor to accept evidence and decide claims, see 20 C.F.R.
§725.350, to consider the interests of any party other than the claimant when evaluating a request for
withdrawal, nor does the text address the precise point at which an adjudication officer loses authority to approve
withdrawal. Rather, the regulation provides that:
(1) A claimant or an individual authorized to execute a claim on a claimant's behalf or on behalf of
claimant's estate under §725.305, may withdraw a previously filed claim provided that:
(1) He or she files a written request with the appropriate adjudication officer indicating
the reasons for seeking withdrawal of the claim;
(2) The appropriate adjudication officer approves the request for withdrawal on the
grounds that it is in the best interests of the claimant or his or her estate, and;
(3) Any payments made to the claimant in accordance with §725.522 are
reimbursed.
(2) When a claim has been withdrawn under paragraph (a) of this section, the claim will be considered
not to have been filed.
20 C.F.R. §725.306. In Lester and Clevenger, the Board adopted the Director's
interpretation of the regulation and held that the provisions at Section 725.306 are applicable only up until
such time as a decision on the merits, issued by an adjudication officer, becomes effective. Lester, 22
BLR at 1-191; Clevenger, 22 BLR at 1-200. The regulations clearly state that a district director's
proposed decision and order is effective thirty days after the date of issuance unless a party requests a revision
or a hearing, and an administrative law judge's decision and order on the merits of a claim is effective on the
date it is filed in the office of the district director. See 20 C.F.R. §§725.419, 725.479,
725.502(a)(2); Lester, 22 BLR at 1-190; Clevenger, 22 BLR at 1-199. The Board
reasoned that this interpretation preserves the integrity of the black lung adjudicatory system by providing a
mechanism for removing premature claims from the system without disturbing valid claim decisions made at
the conclusion of the adversarial process, and this interpretation balances a claimant's interest in forgoing
further pointless litigation on a premature claim, with an employer's interest in maintaining the advantages
gained by successfully defending the claim. Lester, 22 BLR at 1-191; Clevenger, 22 BLR at
1-200. The Board further determined that the Director's interpretation was consistent with both the regulatory
scheme under the Act, and case law which interprets Rule 41(a)(2), an analogous rule under the Federal Rules
of Civil Procedure,[2] as barring the dismissal of a claim without
prejudice after it has been fully litigated.[3] Id.
In the present case, since claimant requested a hearing within thirty days after issuance of the district
director's proposed decision and order, and sought withdrawal of his claim before any adjudication on the
merits became effective, the provisions at Section 725.306 were applicable and the administrative law judge
was authorized to approve withdrawal of the claim, consistent with Lester and Clevenger.
Contrary to employer's arguments, employer's litigation rights did not vest, and although employer
developed medical evidence subsequent to the issuance of the district director's proposed decision and order,
this evidence was not submitted to the district director prior to his administrative denial of benefits and was
never admitted into the record. Employer has demonstrated no present harm from the order of withdrawal;
rather, its immediate impact is to relieve employer from liability for benefits and the added expense of
defending the claim, and any future harm which might result from withdrawal of the claim is speculative.
Employer also argues that the administrative law judge erred in failing to determine whether
withdrawal was in claimant's best interests pursuant to Section 725.306(a)(2). Such a determination,
however, is implicit in the administrative law judge's granting of claimant's request for withdrawal, and
employer lacks standing to argue what is in claimant's best interests, see Warth v. Seldin, 422 U.S.
490, 499 (1975); Jonida Trucking, Inc. v. Hunt, 124 F.3d 739, 21 BLR 2-203 (6th Cir. 1997). Further,
we agree with the Director's argument that any error in the administrative law judge's failure to explicitly
hold that withdrawal was in claimant's best interests is harmless, based on the record which reflects that the
claim was prematurely filed. Consequently, we affirm the administrative law judge's Order granting
withdrawal of the claim pursuant to Section 725.306.
Accordingly, the administrative law judge's Order of Dismissal Granting Withdrawal of Claim is
affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1)The Department of Labor (DOL) has amended the regulations implementing the
Federal Coal Mine Health and Safety Act of 1969, as amended. These regulations became effective on
January 19, 2001, and are found at 20 C.F.R. Parts 718, 722, 725 and 726 (2002). All citations to the
regulations, unless otherwise noted, refer to the amended regulations.
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2)Rule 41(a) of the Federal Rules of Civil Procedure provides:
Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; By Stipulation.
Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an
action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal
at any time before service by the adverse party of an answer or of a motion for summary
judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties
who have appeared in the action. Unless otherwise stated in the notice of dismissal or
stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an
adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the
United States or of any state an action based on or including the same claim.
(2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this
rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and
upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded
by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the
action shall not be dismissed against the defendant's objection unless the counterclaim can
remain pending for independent adjudication by the court. Unless otherwise specified in the
order, a dismissal under this paragraph is without prejudice.
Fed.R.Civ.P. 41(a).
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3)While employer additionally cites to case law addressing Fed.R.Civ.P. 41(a) which
holds that dismissal without prejudice is precluded when a defendant has expended significant time, effort and
expense developing the case or where there has been a ruling against a plaintiff, see Employer's Brief
at 4-5, the parties herein are bound only by the Act and its implementing regulations.
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NOTE: This is an UNPUBLISHED BLA Document.
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