Robert C. Gillenwater v. Ranger Fuel Corporation (Board decision, August 6, 2018)

BRB interlocutory order. This unpublished decision is not precedent. The Board returned Robert Gillenwater's claim to the Office of Administrative Law Judges for further action; entitlement remained unresolved. A final Board decision ordinarily becomes final 60 days after issuance absent timely judicial review or reconsideration under 20 C.F.R. § 802.406; a party may seek Board reconsideration within 30 days under § 802.407.

Plain-English summary

The Board had previously vacated part of a benefits award to Robert Gillenwater and sent his black lung claim back to an administrative law judge. After denying the employer's reconsideration request, it asked the parties whether the judge should reconsider all prior substantive and procedural actions on remand. The program director did not object; the employer requested review by a constitutionally appointed judge, and Gillenwater sought a timely decision. In light of the Supreme Court's recent Lucia decision, the Board returned the case to the Office of Administrative Law Judges for further action. It stated that an adversely affected party may bring a new Board appeal after the next decision is filed.

Decision snapshot

• Authority: 20 C.F.R. §§ 802.205, 802.405(a).
• Outcome: Claim remanded to the Office of Administrative Law Judges.
• Key point: The Board directed further proceedings after considering the parties' positions and Lucia.

Full text (DOL BRB public release)

U.S. Department of Labor
Benefits Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 17-0061 BLA
Case No. 2011-BLA-06277

ROBERT C. GILLENWATER
)
)
Claimant-Respondent
)
)
v. )
)
RANGER FUEL CORPORATION
) DATE ISSUED: 08/06/2018
)
Employer-Petitioner
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Party-in-Interest
) ORDER

On June 8, 2018, the Board summarily denied employer’s motion for reconsideration of the Board’s decision in Gillenwater v. Ranger Fuel Corp., BRB No. 17- 0061 BLA (Nov. 29, 2017) (unpub.), in which the Board affirmed in part and vacated in part the administrative law judge’s Decision and Order awarding benefits, and remanded the case to the administrative law judge for further consideration. Gillenwater v. Ranger Fuel Corp., BRB No. 17-0061 BLA (June 8, 2018) (Order) (unpub.) In the same Order, the Board ordered the parties to show cause within ten (10) days of receipt of the Board’s Order why the administrative law judge should not be instructed to reconsider all of the substantive and procedural actions previously taken when issuing a decision on the merits on remand.

The Director, Office of Workers’ Compensation Programs, responds that she does not object to the case being remanded with such an instruction. Employer responds that the case should be reconsidered on remand by a constitutionally appointed administrative law judge. Claimant responds requesting timely resolution of this claim. Upon consideration of the positions of the parties, and in light of the recent decision of the United States Supreme Court in Lucia v. SEC, 585 U.S. , 2018 WL 3057893 (June 21, 2018), we agree that under these circumstances the proper course of action is to remand this case to the Office of Administrative Law Judges (OALJ) for further action. 20 C.F.R.
§802.405(a). Any party adversely affected by the decision of the OALJ may file a new appeal with the Board within thirty (30) days of the date that the decision is filed with the district director. 20 C.F.R. §802.205.

BETTY JEAN HALL, Chief
Administrative Appeals Judge

JUDITH S. BOGGS
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge