Division of Black Lung and Longshore Legal Services (BLLLS)
MISSION AND FUNCTION: The Division of Black Lung and Longshore Legal Services provides a full range of legal services to the Office of Workers' Compensation Programs (OWCP), Employment Standards Administration, in connection with two statutes:
- Black Lung Benefits Act (BLBA), as amended
- Longshore and Harbor Worker's Compensation Act (LHWCA), as amended and extended
The Division's primary responsibility is to represent the Director, OWCP, in litigation before the Benefits Review Board and the United States Courts of Appeals.
- The Black Lung Benefits Act (BLBA), as amended, 30 U.S.C. 901-944, provides monthly payments and medical benefits to coal miners totally disabled from pneumoconiosis (black lung disease) arising from their employment in or around the nation's coal mines.' The Act also provides monthly benefits to a miner's dependent survivors if the miner died due to pneumoconiosis. Approved claims are paid either by coal mine operators, their insurance carriers, or the Black Lung Disability Trust Fund administered by the Department. By statute, the Division has independent litigation authority. The Department's regulations implementing the BLBA are published in 20 C.F.R. Parts 718, 725, and 726.
- The Longshore and Harbor Worker's Compensation Act (LHWCA), as amended, 33 U.S.C. 901-950, provides compensation and medical care to employees injured while working on the navigable waters of the United States, or in adjoining areas used to load, unload, repair, dismantle, or build vessels. The LHWCA also provides compensation to the employee's dependents if the injury causes the employee's death. Compensation is generally paid by the employer (if the employer is self-insured) or the employer's insurance carrier. In certain cases, the Longshore special fund, which is administered by the Director, pays compensation. The Department's regulations implementing the LHWCA are published in 20 C.F.R. Parts 701, 702, and 703. The LHWCA also has several extensions including the Defense Base Act, the Outer Continental Shelf Lands Act, and the Non appropriated Fund Instrumentalities Act. Regulations implementing these extensions are published in 20 C.F.R. Part 704.
DESCRIPTION OF DUTIES: Division attorneys represent the Director, OWCP, in appeals before the Benefits Review Board and the United States Courts of Appeals under both statutes.
In BLBA cases, staff attorneys review decisions issued by administrative law judges to determine whether the Director should appeal to the Board. In appeals filed by other parties, each case is assigned to an attorney who is then responsible for overseeing the Director's participation in the case. If the case involves the potential benefits liability of the Trust Fund, staff attorneys prepare substantive pleadings advocating the Director's position. If a responsible coal mine operator or its carrier is liable for benefits, attorneys determine whether, and to what extent, the Director's interests require briefing. Attorneys have comparable responsibilities when appeals from Board decisions are filed in the courts of appeals. In addition, a special enforcement unit within the Division ensures that coal mine operators and their insurers meet their BLBA payment obligations. The enforcement unit provides legal support to the Regional Solicitors' offices in litigating federal district court actions to enforce benefit awards and recover money owed the Trust Fund. The unit also, in coordination with the Department of Justice where necessary, represents OWCP's interests in bankruptcy and insurance insolvency proceedings, and defensive litigation.
In LHWCA cases, staff attorneys review administrative law judge decisions that assign liability for compensation to the Longshore special fund, and determine whether the Director should appeal to the Board. Attorneys also represent the Director in appeals filed by employers or insurance carriers where those entities argue for special fund liability. In addition, attorneys handle Board cases raising issues important to the Longshore program's administration. In all instances, staff attorneys are responsible for drafting the Director's pleadings. At the court of appeals level, each case is assigned to a staff attorney who monitors the case, determines whether the Director should participate, and drafts the Director's brief when his participation is necessary.
In both programs, Division attorneys represent the Director at oral arguments before the Board and the courts of appeals. Division attorneys also assist attorneys in the Regional Solicitor's offices in connection with cases they litigate before the Office of Administrative Law Judges. Finally, attorneys provide a variety of non-litigation services such as giving advice or information to OWCP, the Solicitor's Regional Offices, and members of the public; and drafting regulations, including proposed and final rules.
Representative BLBA cases include:
Midland Coal Co. v. Director, OWCP, 358 F.3d 486 (7th Cir. 2004) (according Chevron deference to Department's regulation defining pneumoconiosis as a latent and progressive disease, affirming administrative law judge's rejection of medical opinions based upon premises at odds with the BLBA and its implementing regulations, and holding that miner totally disabled by pneumoconiosis is entitled to benefits even if he also suffers from a concurrent totally disabling non-respiratory impairment).
Dempsey v. Sewell Coal Co., 2004 WL 3252297 (DOL Ben. Rev. Brd. 2004) (upholding as valid Department's regulations limiting the amount of medical evidence each party may submit and affirming administrative law judge's determination that the responsible coal mine operator failed to demonstrate good cause to exceed the regulatory limits).
Energy West Mining Co. v. Oliver, ___ F.3d ___, 2009 WL 416317 (10th Cir. Feb. 20, 2009)(holding that government did not violate coal company's right to due proves by destroying file from miner's long-denied first claim pursuant to agency's record retention policy because "the Constitution is concerned with procedural outrages, not procedural glitches").
Representative LHWCA cases include:
General Construction Co. v. Castro, 401 F.3d 963 (9th Cir. 2004)(holding, consistent with the LHWCA's purpose and the Department's longstanding position, that an injured worker is entitled to total disability compensation where his participation in an OWCP-approved vocational rehabilitation program renders him unavailable to take otherwise suitable alternative employment).
Lockheed Martin Corp. v. Morganti, 412 F.3d 407 (2d Cir. 2005) (holding that an engineer who tested equipment on a research barge moored to buoys on a lake was covered under the LHWCA for three reasons: (1) the lake constituted a navigable waterway within the meaning of the LHWCA because it could be used for commercial shipping; (2) the engineer worked on navigable waters because the barge was floating rather than fixed to the lakebed; and (3) the engineer did not fall into the LHWCA's exclusion for data processing workers because he did not perform that work exclusively).
Delaware River Stevedores v. Edward DiFidelto and Director, OWCP, 440 F.3d 615 (3d Cir. 2006) (holding that only an employee actually receiving LHWCA compensation for a work-related injury may be required to report information about current earnings from other employment or self-employment to his LHWCA employer).