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Compensation Department of District Five v. Marshall

decided: December 9, 1981.

COMPENSATION DEPARTMENT OF DISTRICT FIVE, UNITED MINE WORKERS OF AMERICA, APPELLANT
v.
RAY MARSHALL, SECRETARY OF LABOR, DONALD ELLISBURG, ASSISTANT SECRETARY OF LABOR, EMPLOYMENT STANDARDS ADMINISTRATION, RALPH HARTMAN, DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, JAMES R. YOCUM, ASSOCIATE DIRECTOR, DIVISION OF COAL MINE WORKER'S COMPENSATION PROGRAMS, FRANCIS A. DEMARINO, ACTING CHIEF, BRANCH OF CLAIMS DETERMINATION AND THE DEPARTMENT OF LABOR, APPELLEES AND BETHLEHEM MINES CORPORATION, CONSOLIDATION COAL COMPANY, THE PITTSTON GROUP, WESTMORELAND COAL COMPANY, OLD REPUBLIC INSURANCE COMPANY, REPUBLIC STEEL CORPORATION AND THE NORTH AMERICAN COAL CORPORATION, NACCO MINING COMPANY, QUARTO MINING COMPANY, INTERVENORS-APPELLEES



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Before Seitz, Chief Judge,*fn* Garth, Circuit Judge, and Pollak, District Judge.*fn**

Author: Garth

Opinion OF THE COURT

This is an appeal from an order of the district court for the Western District of Pennsylvania which dismissed an action brought by the Compensation Department of District Five, United Mine Workers of America ("District Five") against the Secretary of Labor. District Five sought to enjoin the Secretary from rereading X-rays of black lung claimants, contending that the Secretary's practice violated § 413(b) of the Black Lung Benefits Act, 30 U.S.C. § 923(b). We agree with the district court's determination that it lacked subject matter jurisdiction over this action. We therefore affirm its dismissal of District Five's complaint.

I.

A.

The Black Lung Benefits Act ("BLBA"), 30 U.S.C. §§ 901 et seq., provides that miners who are totally disabled by black lung disease (pneumoconiosis) are entitled to benefits which are paid either by an individual mining company or from the Black Lung Disability Trust Fund, to which mining companies contribute periodically. See 30 U.S.C. §§ 932(b), 934, 934a. The Secretary of Labor processes claims for these benefits filed after December 31, 1973, unless an adequate state workers' compensation law applies.*fn1 30 U.S.C. §§ 931, 932.

Briefly stated, the processing of black lung claims begins with an initial determination of the claimant's eligibility for black lung disability benefits by a deputy commissioner, an official of the Division of Coal Mine Workers' Compensation Programs within the Office of Workers' Compensation Programs. The deputy commissioner also determines whether there is a mining company (an "operator") which is liable for payment of any benefits due the claimant. After the operator has had an opportunity to rebut the claimant's evidence, the deputy commissioner issues a proposed decision and order. From that order an appeal may be taken to an administrative law judge ("ALJ"), who holds a hearing to which the claimant, the operator, and the Office of Workers' Compensation Programs, among others, are parties. Once the ALJ issues his order, any dissatisfied party may then appeal to the Benefits Review Board ("BRB"), which is "authorized to hear or determine appeals raising a substantial question of law or fact." 33 U.S.C. § 921(b)(3). See generally 20 C.F.R. §§ 725.350-.483. Finally, any party dissatisfied with the BRB's disposition of the case "may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred." 33 U.S.C. § 921(c).*fn2

B.

In establishing eligibility for black lung benefits, various types of evidence are considered, including

medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant's physician, or his wife's affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner's physical condition, and other supportive materials.

§ 413(b) of the BLBA, 30 U.S.C. § 923(b).*fn3 The use to which X-rays may be put in passing upon a claim, however, is specifically governed by § 413(b). First, the statute provides that "no claim for benefits ... shall be denied solely on the basis of the results of a chest roentgenogram." Id. Second, the statute requires that the Secretary accept the interpretation of the X-ray rendered by a radiologist on behalf of the claimant, so long as (1) there is other evidence of pulmonary or respiratory impairment, (2) the X-ray was taken by a radiologist or qualified technician, and the radiologist interpreting it is board-certified, (3) the X-ray is of adequate quality, and (4) there is no reason to believe that any fraud is being committed.*fn4

It is the meaning of the second restriction-requiring the Secretary to accept the interpretation of the X-ray rendered by the claimant's radiologist-that has given rise to the underlying dispute between District Five and the Secretary of Labor. District Five contends that § 413(b) forbids the Secretary from engaging in any "substantive" rereading of X-rays whatsoever-that is, reading of X-rays for any purposes other than to verify the quality of the X-ray. The Secretary of Labor, on the other hand, contends that the requirement that the Secretary, under certain circumstances, "accept" the interpretation of a board-certified radiologist binds only the Secretary and his agents, and not the ALJ or the BRB. Further, the Secretary asserts that § 413(b) in no way forbids the substantive rereading of X-rays. See Government's Brief at 40-46.

Thus, before this suit was filed, it appears that an X-ray submitted by a claimant was routinely referred to a "B-reader," a physician qualified in diagnosing black lung disease from X-rays, see 20 C.F.R. § 718.202(a)(1)(ii) (E). The B-reader would examine the X-ray not only to ensure that it was "of adequate quality to demonstrate the presence of pneumoconiosis," 30 U.S.C. § 923(b), but also to arrive at his own independent conclusion as to whether the X-ray indicated the presence of black lung disease. While the B-reader might, of course, agree with the interpretation of the claimant's radiologist, he might also conclude that an X-ray in fact revealed no black lung disease at all. In those circumstances, while the Secretary of Labor acknowledged that the Office of Workers' Compensation Programs was bound by the positive interpretation of the X-ray submitted on behalf of the claimant, see 20 C.F.R. §§ 718.202(a)(1)(i), 727.206(b)(1), the Secretary interpreted § 413(b) to bind neither the ALJ nor the BRB. As a result, the B-reader's negative rereading was made available to the operator for use as rebuttal evidence at the hearing before the ALJ, who could credit the B-reader's negative interpretation over the positive diagnosis of the claimant's radiologist.*fn5

Seeking to prevent the Secretary from substantively rereading the X-rays in those circumstances where § 413(b) requires the Secretary to "accept" the interpretation of the claimant's radiologist, District Five filed a complaint and a motion for a temporary restraining order and a preliminary injunction on December 31, 1980. Although the district court denied the motion for a temporary restraining order, it granted the motion for a preliminary injunction on January 13, 1981. Subsequently, the district court allowed a number of operators to intervene as defendants under Fed.R.Civ.P. 24(b).

C.

On February 11, 1981, the district court ruled that it lacked subject matter jurisdiction over District Five's action. The district court observed that the BLBA and applicable regulations provide for an adjudication process by which "claims are processed by a Deputy Commissioner, appeals are taken to an Administrative Law Judge, further appeals are taken to the Benefits Review Board and appeals from Board decisions are taken to the appropriate Circuit Court of Appeals." App. 360. Moreover, the district court noted, the BLBA specifically provides for federal district court jurisdiction "in only two very narrow cases," both involving enforcement orders against operators. Id. at 361.*fn6

Reasoning that the form of review provided in a statute is ordinarily intended to be exclusive, the district court inferred from this scheme that Congress did not intend the district courts to have subject matter jurisdiction to grant the relief that District Five sought. Thus the district court dissolved the preliminary injunction and dismissed the complaint with prejudice. It did not pass on the merits of District Five's allegations.*fn7

After the dismissal was ordered, the Director of the Office of Workers' Compensation Programs issued a set of "Temporary Instructions Covering X-ray Rereading." See Addendum to Government's Brief, reprinted as Appendix to this opinion, infra. These instructions, dated February 19, 1981, were based on a ruling of the BRB, issued on February 6, 1981, in the case of Tobias v. Republic Steel Corporation (80-1114-BLA), involving the same dispute over the meaning of § 413(b) as District Five had raised in its complaint in district court. In Tobias, which is discussed more fully below, the BRB rejected the Secretary's interpretation of § 413(b) and in large part adopted District Five's position. As a result, the instructions of February 19, 1981, though still directing that all X-rays be substantively reread by the B-readers, now require that if the limitations of § 413(b) apply, a B-reader's negative interpretation must be placed in a sealed envelope and not be made available to the operator or any other party, the ALJ, or the BRB.*fn8

On March 30, 1981, District Five appealed from the district court's dismissal of its complaint.

II.

The central issue in this case is whether subject matter jurisdiction over District Five's complaint exists in the district courts. We hold that it does not, because we agree with the district court that the scheme of review established by Congress for determinations of black lung disability benefits was intended to be exclusive. Thus, the proper method for contesting the Secretary of Labor's interpretation of § 413(b) is to exhaust the administrative remedies provided under the statute and then to seek review, if desired, in the court of appeals, rather than to seek an injunction against the Secretary in district court.

Underlying our conclusion that the district court lacked subject matter jurisdiction is the general rule that if "there exists a special statutory review procedure, it is ordinarily supposed that Congress intended that procedure to be the exclusive means of obtaining judicial review in those cases to which it applies." City of Rochester v. Bond, 195 U.S. App. D.C. 345, 603 F.2d 927, 931 (D.C.Cir.1979). Moreover, "there is a strong presumption against the availability of simultaneous review in both the district court and the court of appeals." Sun Enterprises, Ltd. v. Train, 532 F.2d 280, 287 (2d Cir. 1976). Because Congress has specifically provided for a statutory scheme whereby claims must first be decided administratively and then reviewed in the courts of appeals, with jurisdiction expressly provided for in the district courts only in specific, limited circumstances, our analysis begins with a presumption that the district court lacked subject matter jurisdiction over this action. We look then to whether an examination of the statute's legislative history, purpose, and design reveals circumstances appearing in this case which are sufficient to overcome that presumption.

A.

In making that examination, we find Whitney National Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411, 85 S. Ct. 551, 13 L. Ed. 2d 386 (1965), to provide especially useful guidance. There, the Federal Reserve Board ("FRB") decided after hearing to allow Whitney National Bank to organize a holding company which would establish a bank in a nearby county; all that remained to be done was for the Comptroller of the Currency to issue a certificate of authority for the new bank. Among other actions taken, some competing banks filed suit in the District Court for the District of Columbia seeking an injunction against issuance of the certificate of authority by the Comptroller.*fn9 The district court assumed jurisdiction over this proceeding, and the Court of Appeals for the District of Columbia Circuit affirmed.

On appeal from the D.C. Circuit's affirmance, the Supreme Court held that the district court lacked jurisdiction to issue an injunction against the Comptroller. After first determining that the challenge to the Comptroller's issuance of the certificate raised issues that were properly for the FRB alone to decide, the Supreme Court held that Congress "intended that challenges to Board approval of the organization of a new bank by a holding company be pursued solely as provided in the statute," which provided that the FRB's decisions were to be appealed to the courts of appeals. 379 U.S. at 420, 85 S. Ct. at 557.

Four considerations persuaded the Court to rule as it did in Whitney. The first was the general presumption that

where Congress has provided statutory review procedures designed to permit agency expertise to be brought to bear on particular problems, ...


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