Millard R. Sluss v. Hosanna, LLC (Board decision, January 11, 2019)

BRB interlocutory order. This unpublished decision is not precedent. The Board vacated the attorney fee award while a new judge determines entitlement. 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 request Board reconsideration within 30 days under § 802.407.

Plain-English summary

Millard Sluss obtained a black lung benefits award and his lawyer received an attorney fee award. The benefits award was later vacated because the judge had taken significant action before being properly appointed, and a new judge would rehear entitlement. The employer's appeal of the fee order was before the Board. Because entitlement was unresolved, the Board also vacated the fee award and sent the fee question to the new judge for consideration if benefits are again awarded.

Decision snapshot

• Authority: Board remand under 20 C.F.R. § 802.405(a).
• Outcome: Attorney fee award vacated and remanded; entitlement remains pending before a new judge.
• Key point: A fee award tied to a vacated benefits decision must await the new merits decision.

Full text (DOL BRB public release)

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

BRB No. 18-0521 BLA
Case No. 2015-BLA-05627

MILLARD R. SLUSS
)
)
Claimant-Respondent
)
)
v. )
)
HOSANNA, LLC
)
)
and
)
)
AMERICAN MINING INSURANCE
) DATE ISSUED: 01/11/2019
COMPANY
)
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Party-in-Interest
) ORDER

Employer/carrier (employer) appeals the Supplemental Decision and Order Awarding Attorney’s Fees and the Order Denying Employer’s Motion for Reconsideration (2015-BLA-05627) of Administrative Law Judge Alan L. Bergstrom, rendered in connection with a miner’s claim filed pursuant to the provisions of the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012)(the Act).

On August 23, 2017, Judge Bergstrom issued a Decision and Order awarding benefits. Thereafter, he granted claimant’s counsel’s fee request in a Supplemental Decision and Order issued on November 29, 2017, and he denied employer’s motion for reconsideration of the fee award on June 28, 2018. Meanwhile, employer appealed the underlying award of benefits in the miner’s claim to the Board. On March 29, 2018, the Board issued an order remanding the case to Judge Bergstrom “to promptly reconsider the substantive and procedural actions previously taken and to issue a decision on the merits accordingly. 20 C.F.R. §802.405(a).” Sluss v. Hosanna, LLC, BRB No. 17-0661 BLA, slip op. at 1-2 (Mar. 29, 2018)(Order)(unpub.).

On remand, Judge Bergstrom issued a Decision and Order in which he reconsidered his initial decision, adopted and incorporated it by reference, and again awarded benefits. Decision and Order on Remand at 4-5. Employer timely moved for reconsideration.

Because Judge Bergstrom had retired, the case was reassigned to Administrative Law Judge Paul C. Johnson, Jr., who granted reconsideration and vacated Judge Bergstrom’s decision awarding benefits on November 2, 2018. Specifically, Judge Johnson ruled that, because Judge Bergstrom took significant actions in the case while not properly appointed, employer was entitled to a new hearing before a new, and properly appointed, administrative law judge.1 Order Granting Motion for Reconsideration and Denying Motion for Remand at 1-2; see Lucia v. SEC, 585 U.S. , 138 S. Ct. 2044, 2055 (2018).

Because the underlying award of benefits has been vacated and a new administrative law judge will issue a new decision on the merits of claimant’s entitlement, Judge Bergstrom’s fee award in this case must also be vacated.

Accordingly, we vacate Judge Bergstrom’s Supplemental Decision and Order Awarding Attorney’s Fees and Order Denying Employer’s Motion for Reconsideration, and remand this case to the Office of Administrative Law Judges for reassignment to the new and properly appointed administrative law judge who will adjudicate the underlying

1
Judge Johnson also vacated Judge Bergstrom’s Supplemental Decision and Order awarding a fee and Order denying reconsideration of the fee award. Order Granting Motion for Reconsideration and Denying Motion for Remand at 2. Judge Johnson lacked jurisdiction over those fee orders, however, because they had already been appealed to the Board. See Bartley v. L&M Coal Co., 7 BLR 1-243, 1-248 (1984); Meeks v. Director, OWCP, 6 BLR 1-794, 1-796 n.4 (1984); see also Colbert v. Nat’l Steel & Shipbuilding Co., 14 BRBS 465, 468 (1981).

2 claim for benefits. If benefits are awarded, that administrative law judge should consider any attorney fee petitions filed at that time.2

BETTY JEAN HALL, Chief
Administrative Appeals Judge

JUDITH S. BOGGS
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge

2
Any fee awarded is not enforceable until the claim has been successfully prosecuted and all appeals are exhausted. See Goodloe v. Peabody Coal Co., 19 BLR 1- 91, 1-100 n.9 (1995).