Byrge v. Premium Coal Co., Inc et al

MOTION to Alter Judgment Order on Motion for Summary Judgment, Memorandum & Opinion

E.D. Tenn.April 28, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE PHILLIS S. BYRGE on behalf of the Estate of REDDIN BYRGE, Plaintiff, v. PREMIUM COAL COMPANY, INC. and OLD REPUBLIC INSURANCE COMPANY, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 3:16-cv-136-CCS MOTION TO ALTER OR AMEND JUDGMENT Defendants Premium Coal Company Inc. and Old Republic Insurance Company, by counsel and pursuant to Rule 59(e) of the Federal Rule of Civil Procedure, respectfully move to alter or amend the Judgment of this Court filed in this case on March 31, 2017 (Doc. 31). This Motion should be granted and Plaintiff’s Motion for Summary Judgment should be denied for the reasons set forth in the attached Memorandum of Points and Authorities. Respectfully submitted, s/ Mark E. Solomons Mark E. Solomons Laura Metcoff Klaus GREENBERG TRAURIG LLP 2101 L Street NW, Suite 100 Washington, DC 20037 (202) 533-2361 solomonsm@gtlaw.com klausl@gtlaw.com Debra L. Fulton (BPR No. 1569) Richard T. Scrugham, Jr. (BPR No. 22107) FRANTZ, MCCONNELL & SEYMOUR, LLP P.O. Box 39 Knoxville, TN 37901 (865) 546-9321 Counsel for Defendants Case 3:16-cv-00136-CCS Document 33 Filed 04/28/17 Page 1 of 1 PageID #: 815 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE PHILLIS S. BYRGE on behalf of the Estate of REDDIN BYRGE, Plaintiff, v. PREMIUM COAL COMPANY, INC. and OLD REPUBLIC INSURANCE COMPANY, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 3:16-cv-136-CCS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO ALTER OR AMEND JUDGMENT I. INTRODUCTION On March 31, 2017, this Court granted plaintiff’s Motion for Summary Judgment, holding the defendants liable for the payment of a penalty, plus interest on benefits awarded to the plaintiff under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945 (2016) (“BLBA” or “Black Lung Act”). Defendants opposed the motion on several grounds,1 including the fact that the payments made by defendants were timely and therefore precluded the imposition of a penalty, imposed automatically on untimely payments. The timeliness question turns on the meaning of section 14(f) of the Longshore Act; 33 U.S.C. § 914(f), and on the Department of Labor’s regulations establishing benefit payment requirements for black lung claims. Longshore rules and black lung rules are not the same and the Sixth Circuit as well as the U.S. Supreme Court have held, with one exception not relevant here, that in accordance with 30 USC § 932(a), the Department of Labor (“DOL” or “Department”) has the regulatory authority to adapt the rules of the Longshore Act to the special circumstances presented in black lung claims. Director, OWCP 1 This Motion addresses the dispositive holding by this Court. All other issues raised in this proceeding but not argued in this Motion are preserved for further appeal if necessary and appropriate. Case 3:16-cv-00136-CCS Document 33-1 Filed 04/28/17 Page 1 of 14 PageID #: 816 2 v. Bivens, 757 F.2d 781, 785-86, 787-88 (6th Cir. 1985); see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 271 (1994). Section 14(f) provides in relevant part, If any compensation payable under the terms of an award is not paid within ten days after it becomes due there shall be added to such unpaid compensation an amount equal to 20% thereof which shall be paid at the same time as but in addition to such compensation. . . . Relying on an unpublished and divided Longshore Act decision, this Court concluded that the ten days begins to run when a decision is issued by the appropriate adjudicator, not when DOL informs the employer who to pay, how much to pay, and when payments are due. (Doc. No. 31 at 15), citing Navalo v. Cochise Consultancy, Inc., 666 F. App’s 661 (9th Cir. 2016).2 In this setting, the question is not whether the payment was or would have been timely if it was made pursuant to a Longshore award. The question is whether it was timely under the Department’s black lung regulations. There is no factual dispute that the payment was made within ten days from the date on which the Department issued its letter order instructing the employer that payment was due, who to pay, how much to pay, when to commence payments and the periods covered by the payments. Neither can there be any dispute over the plain language of section 14(f) requiring a penalty3 if payments in full are not made within ten days “after it becomes due.” 33 U.S.C. § 914(f). 2 In reaching its conclusion, this Court also cited two black lung claims where a penalty was awarded. Hudson v Pine Ridge Coal Co., No. 2:11-cv-248, 2012 WL 386736 at *5 (S.D.W.Va. Feb. 6, 2012); Nowlin v Eastern Assoc Coal Co., 266 F. Supp.2d 502 (N.D.W.Va. 2003). These cases involved a dispute over whether non-payment invoked the Section 14(f) penalty under DOL’s regulations. In each case, no payment was made and for that reason neither case is relevant here for determining when a payment was sufficiently timely to avoid the penalty. 3 This Court notes that the statute does not use the term “penalty,” suggesting that the rule of lenity requiring a strict construction of penalty provisions against the imposition of the penalty should not apply. See Doc. 31 at 22. The fact is that section 14(f) imposes a financial sanction Case 3:16-cv-00136-CCS Document 33-1 Filed 04/28/17 Page 2 of 14 PageID #: 817 3 The Department’s regulations applied to black lung claims but not Longshore claims precisely define when a payment is due and clearly answer the question noted in section 14(f) in a way that does not support the Court’s analysis. See 20 C.F.R. § 725.502(b)(2). This Motion thus requests the Court to reconsider (1) whether the defendants’ payments were in keeping with the regulatory language setting the date the payments are due and were, therefore timely; (2) whether prior case law, including Sixth Circuit precedent, requires this Court to follow DOL’s black lung rules and not Longshore rules in matters concerning the payment of benefits; (3) whether the Court’s decision properly accounts for the fact that in black lung claims, but not in Longshore claims, it is necessary to coordinate a transition from payments made by the federal government in accordance with federal disability benefit program rules used in Social Security Act programs that are not designed to accommodate an immediate switch over from federal payments to private payments, and (4) whether the decision of ALJs, the Benefits Review Board or court provided adequate information to support an informed decision how to pay benefits and how much to pay.. B. ARGUMENT 1. The Plain Language of the Longshore and Black Lung Acts and the Department’s Regulations Preclude a Finding that the 14(f) Penalty Applies in this Case. The principal and dispositive error in the Court’s decision in this case is in assuming that Longshore payment practices and procedures apply with equal force in black lung claims. The assumption is not correct. This Court’s holding stands alone in its rejection of the rational system for paying black lung benefits necessitated by the specific circumstances of the black lung program. The BLBA expressly provides that Longshore procedures to the extent applicable in black lung claims may be changed, amended or even abandoned by DOL in the BLBA program. as a penalty for disobeying its terms. That the word penalty is not used seems irrelevant and the point noted by the Court is more semantic than substantive. Case 3:16-cv-00136-CCS Document 33-1 Filed 04/28/17 Page 3 of 14 PageID #: 818 4 Section 422(a), 30 U.S.C. § 932(a), states that the provisions of the Longshore Act, not expressly excluded by statute, may apply in black lung claims, except as otherwise provided in this subsection or by regulations of the Secretary of Labor . . . . In administering this part, the Secretary is authorized to prescribe in the federal register such additional provisions not inconsistent with those specifically excluded by this subsection, as he deems necessary to provide for the payment of benefits by such operator to person entitled thereto as provided in this part and thereafter those provisions shall be applicable to such operator. The Sixth Circuit and the Supreme Court have recognized this authority. Director, OWCP v. Bivens, 757 F.2d at 785-86, 787-88; Greenwich Collieries, 512 U.S. at 271. When it comes to the payment of benefits, the Department’s black lung regulations do not follow any longshore rules and generally depart from them for many reasons. First, the Black Lung payment rules were established originally by the Social Security Administration under Part B of Title IV of the Black Lung Benefits Act. Those Social Security disability benefits payment procedures were made applicable for the payment of black lung benefits. See, 30 U.S.C. §§ 922, 923(b) (incorporating general payment and other rules from the Social Security Act); see also, 20 C.F.R. Part 410, Subpart B, Payment of Benefits (implicating Social Security’s Part B black lung program). A plain language analysis of the relevant rules leaves little doubt that the incorporation of Section 14(f) under the Black Lung Act does not and was not intended to follow the rules that apply in this context under the Longshore Act. As this Court noted and found controlling, the ten-day period in Section 14(f) begins under the Longshore Act when payments are due, which occurs on the date that the district director, ALJ, Benefits Review Board, or Court issues its decision. Doc. 31 at 10. As a statutory matter, one condition, that the “payment is due” controls the applicability of the penalty and begins the ten day penalty period. There is no Longshore regulation that defines specifically when a payment is due, although the penalty provision of Section 14(f) is incorporated, 20 Case 3:16-cv-00136-CCS Document 33-1 Filed 04/28/17 Page 4 of 14 PageID #: 819 5 C.F.R. § 702.350. Thus, the courts are free, as was the case in Navalo to interpret the rule to establish the meaning of the word “due” as the date a decision is reached by an adjudicator. In contrast, the black lung rules include a regulation that defines when a benefit payment following an adjudicated award becomes “due” and payable. DOL’s regulation atr 20 C.F.R. § 725.502(b) states: “(b)(1) While an effective order requiring the payment of benefits remains in effect, such benefits at the rates set forth in § 725-520 shall be due on the fifteenth day of the month following the month in which the benefits are payable. For example, benefits payable for the month of January shall be due on the fifteenth day of February. (2) Within 30 days after the issuance of an effective order requiring the payment of benefits, the district director shall compute the amount of benefits payable for the periods prior to the effective date of the Order, in addition to any interest payable for such period (see § 725.608) and shall so notify the parties. Any compensation made by the district director under this paragraph shall strictly observe the terms of the order. Benefits and interest payable for such periods shall be due on the thirtieth day following issuance of the district director’s computation. . . .” In order to harmonize Section 14(f) with 20 C.F.R. § 725.502(b)(1) and (b)(2), a plain language analysis leads to an inevitable conclusion that benefits are not due for purposes of Section 14(f) when an ALJ or the Board or a Court issues an opinion or decision but only thirty days after the district director issues his computation. No other interpretation of section 725.502(b)(1) makes linguistic sense and for the reasons noted below, no other interpretation makes any practical sense. The Longshore rules contain no comparable language and Longshore precedents are largely irrelevant. A plain language analysis is the gold standard and where the language is clear, as it is here, the Court is not free to look elsewhere for a different rule.4 4 It is conceded for the purposes of the Plaintiff’s Motion for Summary Judgment that all benefits due were paid within ten days from the date “due” as that term is defined in 20 C.F.R. § 725.502(b)(2), and for that reason the Motion for Summary Judgment should have been denied. The plain language of the black lung payment rule fits perfectly into the plain language of Section 14(f) and no other interpretation suggests the outcome this Court reached. Case 3:16-cv-00136-CCS Document 33-1 Filed 04/28/17 Page 5 of 14 PageID #: 820 6 The contrary interpretation reached by this Court makes 20 C.F.R. § 725.502(b)(1) and (2) irrelevant surplusage. This Court is not free to take the path of creating surplusage and doing so is contrary to more than a century of Supreme Court jurisprudence. See Penn. Public Welfare Dept. v. Davenport, 495 U.S. 522, 562 (1990) (and cases cited therein). It bears mention also that in the 43 years since the Part C black lung programs began, no court, no ALJ and no member of the Benefits Review Board has concluded that an employer or carrier who complied with Section 725.502(b)(2) was liable for a penalty. This Court has no sound basis on which to break a new trail on this matter, especially for the sole reason that Longshore claims are treated differently. 2. Prior Black Lung Precedent Holds that Longshore Procedures Do Not Supercede Black Lung Regulations In the 1980’s, under the Longshore Act, judges added 6% interest to unpaid benefits due to a claimant. The interest began to accumulate when the compensable longshore covered injury occurred. Following amendments to the Black Lung Act, the Department of Labor promulgated a regulation applicable in black lung, but not in Longshore claims, precluding awards of pre- judgment interest. Following Longshore precedent, the Benefits Review Board nevertheless awarded pre-judgment interest in black lung claims. All of the courts of appeals, including the Sixth Circuit, that heard the dispute, reversed the Board and deferred to the Department’s regulation. The Seventh and Third Circuits, for example, observed that “there is a fundamental difference between the injury compensable under the [Longshore Act] and those compensable under the Black Lung Benefits Act. Peabody Coal Co. v. Blankenship, 773 F.2d 173, 177 n.7 (7th Cir. 1985) quoting Bethlehem Mines Corp. v. Director, Office of Worker’s Compensation Program, 766 F.2d 128, 131 (3d Cir. 1985). Both Courts held that where a DOL regulation deviated from the practices or rules followed under the Longshore Act, the black lung regulation must be followed and the contrary Longshore approach must be rejected. The Fourth and Sixth Circuit followed suit in Stapleton v. Westmoreland Coal Co., 785 F.2d 424, 437 (4th Cir. 1986), rev’d on other grounds, sub nom. Case 3:16-cv-00136-CCS Document 33-1 Filed 04/28/17 Page 6 of 14 PageID #: 821 7 Mullins Coal Co. v. Director, OWCP, 484 U.S. 135 (1986), Y&O Coal Co. v. Warren, 841 F.2d 134, 138-39 (6th Cir. 1987). The instant case is not meaningfully different in principle. Longshore adjudications follow one rule adopted for a program involving an employer’s immediate notice of an employee’s injury, and the immediate need to replace lost wages as a result of injury. No such setting is likely or even common in black lung claims. As the Seventh Circuit notes, employers do not even rarely have current contact with claim filers. Peabody Coal Co., 773 F.2d at 177 n.7. Black lung regulations tailored to address the circumstances of black lung claims will always supercede contrary longshore practices. Moreover, because black lung claimants are paid interim benefits under the federal disability insurance system administered by the Social Security Administration by agreement with DOL when an employer declines to pay benefits, and SSA cannot stop a payment on a dime or even in ten days, the application of Longshore practices to this very different payment scheme makes no sense. The DOL regulations take into account a procedure which ensures uninterrupted benefits to claimants but protects against multiple payments for the same month – which would frequently occur under this Court’s approach because federal disability benefits cannot be stopped on a ten day cycle. The DOL payment regulation makes sense, is supported by the BLBA and is clear in its requirement that payment is due thirty days after the district director, not an ALJ, the Board, or anyone else, computes the benefits due. Those regulations describing this payment system must be given force and effect; they cannot reasonably be construed as being constrained by the Longshore approach. The Court’s decision should be reconsidered for these reasons. 3. This Court’s Analysis Equating the Longshore and Black Lung Program Is Not Supported by Fact or Law Although the procedures adopted in the Longshore Act apply to claims brought under the BLBA, the types of claims at issue under the Longshore Act could not be more different. “The fundamental purpose of the [Longshore] Act is to compensate employees (or their beneficiaries) Case 3:16-cv-00136-CCS Document 33-1 Filed 04/28/17 Page 7 of 14 PageID #: 822 8 for wage-earning capacity lost because of injury.” Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 298 (1995) (“Rambo I”). See also Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 126 (1997) (”Rambo II”) (“The LHWCA authorizes compensation not for physical injury as such, but for economic harm to the injured worker from decreased ability to earn wages.”). In Roberts v. Sea-Land Servs., Inc., 566 U.S. , 132 S. Ct. 1350 (2012), the Supreme Court recognized that for claims brought under the Longshore Act, a central piece of the program, set forth in section 14(a), requires employers to pay benefits voluntarily, i.e., without formal administrative proceedings, when it receives notice of a disabling injury. In the run of cases, employers pay benefits without contesting liability and thus, no compensation order issues. Id., 132 S. Ct. at 1354-55 and there is no litigated dispute. The nature of the claims typically brought under the Longshore Act makes this a workable program. The Longshore Act provides compensation for permanent total disability (including loss of hands, arms, feet, or eyes), temporary total disability, and permanent partial disability which is compensated based on a schedule tied to a specific number of weeks of compensation. See 33 U.S.C. § 908. These types of traumatic injuries, however, are not covered under the BLBA and Section 8 of the Longshore Act is not one of the provisions incorporated into the BLBA. Moreover, even when a compensation order has been issued, Section 8 permits Longshore claims to be settled by the parties and most claims are settled. 33 U.S.C. § 908(i); LHWCA Bulletin No. 14-05 (Sept. 17, 2014) (available at https://www.dol.gov/owcp/dlhwc/ lsindustrybulletins/LSBulletin14-05.htm. Claims under the BLBA, however, may not be settled. See Ramey v. Director, OWCP, 326 F.3d 474 (4th Cir. 2003). Claims under the BLBA, like Mr. Byrge’s claim, typically are filed long after the claimant has left coal mine employment. Mr. Byrge, for example, left mining in 1986, but he did not file his first claim alleging a work-related disease until April 2007, and did not file a second claim until 2010, more than one year after the denial of his initial claim. Although the Longshore Act also provides compensation for potentially latent diseases, unlike the BLBA, it has not been interpreted to permit successive claims, like Mr. Byrge filed here. Rather, under the Case 3:16-cv-00136-CCS Document 33-1 Filed 04/28/17 Page 8 of 14 PageID #: 823 9 Longshore Act, once a claim has been adjudicated and finally awarded or denied, if no petition for modification is filed within one year of the last payment of benefits or the last denial of a claim, the litigation of that claim is over. See Rambo II, 521 U.S. at 129 (recognizing that 33 U.S.C. § 913(a) “bars an injured worker from waiting for adverse economic effects to occur in the future before bringing his disability claim, which generally must be filed within a year of injury” and under 33 U.S.C. § 922, “a losing claimant loses for all time after one year from the denial of termination of benefits ….”). See also Rambo, 515 U.S. at 298 (“where that wage- earning capacity has been reduced, restored, or improved, the basis for compensation changes and the statutory scheme allows for modification.”). Section 13 of the Longshore Act is not incorporated into the BLBA although Section 22 is. 30 U.S.C. § 932(a). Not surprisingly, the payment procedures of the two programs are not similar. Under the Longshore Act, as noted, payments by employers generally are made voluntarily to compensate an employee for the economic loss of missing work on account of an injury. The Longshore Act encourages such voluntary payments by imposing a 20% penalty on employers who do not pay within ten days of an order directing that payments be made. 33 U.S.C. § 914. In contrast, under the BLBA, Congress created the Black Lung Disability Trust Fund (“Trust Fund”) to pay benefits where an employer declines to make such payments or where no employer can be identified. 26 U.S.C. § 9501. The presence of the Trust Fund eliminates the potential loss of wages that Section 14 of the Longshore Act was denied to address.5 Although Congress itself did not amend the BLBA following the creation of the Trust Fund, it empowered the Secretary of Labor to address any mismatch between the Longshore Act and the BLBA by regulation. See 30 U.S.C. § 932(a) (incorporating provisions of the Longshore Act, except where “otherwise provided … by regulations of the Secretary.”); West v. Director, 5 The Court disputes counsel’s claim that the Trust Fund was created in part to relieve operators of the necessity of paying claims while litigation was going on. Doc 31 at 19 n. 6, 20. The Court’s conclusion is not supported by the pleadings and is not a proper subject for a summary judgment. If speculation is permitted, it should recognize that legislative solutions like the Trust Fund are rarely one-sided. Case 3:16-cv-00136-CCS Document 33-1 Filed 04/28/17 Page 9 of 14 PageID #: 824 10 OWCP, 896 F.2d 308, 310 (8th Cir. 1990); Patton v. Director, OWCP, 763 F.2d 553, 559-60 (3d Cir. 1985); Director, OWCP v. Bivens, 757 F.2d at 785-86, 787-88. The Sixth Circuit’s discussion in Bivens is instructive and directly applicable here: Many courts which have grappled with procedural aspects of the Black Lung Benefits Act have concluded, to put it kindly, that the Act does not represent the work of Congress at its most lucid. See Black Diamond, 598 F.2d at 948 ("[t]he statutory tangle is intricate and exhibits some disregard for the usual rules of syntax, let alone clarity"); South East Coal, 598 F.2d at 1049 (Trust Fund is liable for attorneys' fees through an "extremely convoluted process"); U.S. Pipe and Foundry Co. v. Webb, 595 F.2d 264, 265, 273 n. 9 (5th Cir.1979) (referring to the "legislative morass" and the "clumsy drafting"); Republic Steel, 590 F.2d at 79 (referring to the "complexities of this convoluted process and the confusion it provokes"); Director, Office of Workers' Compensation Programs v. Alabama By- Products Corp., 560 F.2d 710, 712, 720 (5th Cir.1977) (referring to the "labyrinthine statutory provisions" and the "statutory thicket" of the Act); Krolick Contracting Corp v. Benefits Review Board, 558 F.2d 685, 686 (3d Cir.1977) (referring to the "statutory muddle"); Director, Office of Workers' Compensation Programs v. Peabody Coal Co., 554 F.2d 310, 313, 339 (7th Cir.1977) (referring to "statutory shambles" and "abysmally inept drafting"). Bivens, 757 F.2d at 785. For this reason, the Sixth Circuit noted that where reliance on the "plain" language would lead to absurd results, the “plain” language might not always provide the right answer. Bivens, 757 F.2d at 786. The determination of when benefits are due presents such a situation. Because of the differences between the two programs, the Secretary of Labor, by regulation, altered the approach to be applied by providing “[w]hen benefit payments are due,” in 20 C.F.R. § 725.502. Although DOL’s regulation recognizes that benefits shall be considered “due” after the issuance of an effective order requiring their payment, the actual compensation order that triggers the payment of those benefits is issued by the district director pursuant to section 725.502(b)(2). It is with the issuance of that order that payments become due. If those payments are not made within ten days of the date of that order, then an amount equal to 20 percent of those unpaid benefits may be added. Case 3:16-cv-00136-CCS Document 33-1 Filed 04/28/17 Page 10 of 14 PageID #: 825 11 Only in this way can the provisions of the Longshore Act, BLBA and practical realities be harmonized. And, only in this way can an employer know what compensation is due. If the actions by the Department of Labor are “ministerial” in Longshore claims, by no authority does that make the agency process for determining benefits payable in a black lung claim the same. Black lung compensation is much more complex and hardly ministerial and this Court has no proof to the contrary. The payment scheme for black lung benefits requires a set of calculations based on the dates of a claimant’s employment, the applicable rates during that time period, the number of dependents and augmentees he or she has during a given year, potential offsets and the cost of medical and indemnity benefits to be reimbursed to the Trust Fund, including medical payments, if any. This is not a ministerial calculation that can be done simply because an ALJ has decided that a claimant is entitled to benefits. In contrast to Longshore claims, ALJs in black lung claims do not even try to and have no basis for making the relevant computation. The ALJ’s order in Byrge’s case illustrates this point. In the decision and order issued by the ALJ, the “order” section consists of a single sentence: “The claim for benefits is hereby GRANTED. Augmentation for one dependant [sic] is authorized.” ALJ Jan. 16, 2013 Decision and Order at 11. This is not a “compensation order.” It does not direct the payment of benefits and it does not identify how much should be paid. If benefits must be paid with the issuance of the ALJ’s decision, then obtaining evidence and calculating the award would be a requirement placed on the ALJ. That is what the courts have held in the Longshore Act cases. See Ledet v. Phillips Petroleum Co., 163 F.3d 901, 906 (5th Cir. 1998) (vacating an order remanding a case to the director to gather evidence of the claimant’s earnings and to calculate the compensation due therefrom, stating: “That is a matter for the ALJ to complete.”); Gupton v. Newport News Shpbldg & Dry Dock Co., 33 BRBS 94, 95 (BRB 1999) (“[t]o constitute a ‘final decision and order’ of the ALJ, the order must at a minimum specify the amount of compensation due or provide a means of calculating the correct amount without resort to extra-record facts which are potentially subject to genuine dispute between the parties.”). If the Court is correct and the law Case 3:16-cv-00136-CCS Document 33-1 Filed 04/28/17 Page 11 of 14 PageID #: 826 12 that applies in Longshore cases applies to ALJ decisions in black lung claims, then the order in Byrge is neither final nor enforceable because it does not specify an amount of compensation due or a means of calculating what was due. Id.; see also Stetzer v. Logistec of Connecticut, Inc., 547 F.3d 459, 464 (2d Cir. 2008) (adopting the Fifth Circuit's test for determining the finality and enforceability of an ALJ's order under 33 U.S.C. § 914(f) and holding that an ALJ's order is not final and enforceable if it does not "specify the amount of compensation due or provide a means of calculating the correct amount without resort to extra-record facts which are potentially subject to genuine dispute between the parties."). This Court thus erred in finding that the “compensation order” that triggered Section 14(f) in this case was the ALJ’s January 16, 2013 decision and order. It was not adequate for that purpose even under Longshore rules. This Court’s reliance on Navalo v. Cochise Consultancy, Inc., 666 F. App’s 661, to suggest that the district director’s letters in this case were “simply letters calculating the specific amount owed” and not a “compensation order” is unsupported. A comparison of the ALJ’s order in Navalo with the order in Byrge makes the point clear. In Navalo, the “order” stated: The claim for benefits filed by the Claimant is AWARDED. The Employer shall pay permanent partial disability benefits for the physical disability to the Claimant based on his alternate wage earning capacity as described above. Employer shall pay temporary partial disability benefits to the Claimant for his psychological disability not to exceed the statutory period of five years also based on the alternative wage earning capacity described above. Effective May 2012, the Employer shall pay permanent partial disability benefits based on an alternate wage earning capacity of $480.00 per week. All calculations of disability payments are to be based on the Claimant’s stipulated average weekly wage of $2,594.56. The District Director shall make all calculations necessary to carry out this Order. ALJ Decision and Order dated April 26, 2013 at 32. To trigger any obligation under Section 14(f), the ALJ in Byrge’s case would have had to provide the information that the district Case 3:16-cv-00136-CCS Document 33-1 Filed 04/28/17 Page 12 of 14 PageID #: 827 13 director set out in his October 28, 2015 letter. It is only with that information that defendants would know what was due. Since the ALJ in Byrge did not provide that information—or even a basis on which it could be calculated, his order was not an effective compensation order. Neither do Longshore procedures involve circumstances where the federal benefit must be discontinued and the privately funded benefit commenced in its place. As noted, black lung disability benefits are paid in accordance with the longstanding practices of the Social Security Administration which are designed to ensure that both overpayments and underpayments are avoided. That process is irrelevant in Longshore claims. This Court’s assumptions to the contrary not only are unsupported by the pleadings in this summary judgment proceeding, but cannot be reconciled with the procedure that Congress established for black lung claims. Under the black lung system, not even a single claimant is harmed by the process. Claimants as well as federal and private payers are served by a system that works to assure continuity of payments and avoid unnecessary complications of duplicate payments, underpayments and errors in the amounts payable. No such problems are present in Longshore claims and the Court’s implications to the contrary have no place in a summary judgment analysis. CONCLUSION For the reasons stated above, it is respectfully requested that the Court vacate its prior order granting summary judgment and issue an amended order denying plaintiff’s motion. Respectfully submitted, s/ Mark E. Solomons Mark E. Solomons Laura Metcoff Klaus GREENBERG TRAURIG LLP 2101 L Street NW, Suite 100 Washington, DC 20037 (202) 533-2361 solomonsm@gtlaw.com klausl@gtlaw.com Case 3:16-cv-00136-CCS Document 33-1 Filed 04/28/17 Page 13 of 14 PageID #: 828 14 Debra L. Fulton (BPR No. 1569) Richard T. Scrugham, Jr. (BPR No. 22107) FRANTZ, MCCONNELL & SEYMOUR, LLP P.O. Box 39 Knoxville, TN 37901 (865) 546-9321 Case 3:16-cv-00136-CCS Document 33-1 Filed 04/28/17 Page 14 of 14 PageID #: 829 CERTIFICATE OF SERVICE I hereby certify that on this 28th day of April, 2017, a copy of the foregoing Motion to Alter or Amend Judgment and Memorandum of Points and Authorities in Support was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. mail. Parties may access this filing through the Court’s electronic filing system. s/ Laura Metcoff Klaus Laura Metcoff Klaus Case 3:16-cv-00136-CCS Document 33-2 Filed 04/28/17 Page 1 of 1 PageID #: 830