PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BETTY B COAL COMPANY,
Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS'
                                                               No. 98-2731
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; ART
STANLEY,
Respondents.

BETTY B COAL COMPANY,
Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS'
                                                               No. 99-1057
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; ART
STANLEY,
Respondents.

On Petitions for Review of Orders
of the Benefits Review Board.
(87-2105-BLA)

Argued: June 11, 1999

Decided: October 21, 1999

Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________
No. 98-2731 affirmed and No. 99-1057 dismissed by published opin-
ion. Judge Michael wrote the opinion, in which Judge Luttig and
Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Mark Elliott Solomons, ARTER & HADDEN, L.L.P.,
Washington, D.C., for Petitioner. Elizabeth Hopkins, UNITED
STATES DEPARTMENT OF LABOR, WASHINGTON, D.C., for
Respondents. ON BRIEF: Laura Metcoff Klaus, ARTER & HAD-
DEN, L.L.P., Washington, D.C., for Petitioner. Henry L. Solano,
Solicitor of Labor, Allen H. Feldman, Associate Solicitor for Special
Appellate and Supreme Court Litigation, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

Betty B Coal Company filed petitions for review of two orders of
the Department of Labor's Benefits Review Board (BRB), each of
which resolved motions to reconsider the BRB's affirmance of an
award of black lung benefits to Art Stanley, a now-deceased coal
miner. We dismiss the second of the petitions for lack of jurisdiction.
However, we do have jurisdiction over the first petition, and our
review of that petition leads us to affirm the award of benefits. Our
affirmance proceeds through several steps. First, we hold that the
Department of Labor properly construed Stanley's second claim for
benefits to be a request for modification made within the one-year
time limit. As we will explain more fully, Stanley filed this second
claim more than one year after his first claim was denied, but within
one year after the denial of a first request for modification. We defer
to a reasonable administrative interpretation of the governing statute
to the effect that such a second claim is a timely modification request.
Second, we conclude that the administrative proceedings through
which Stanley was awarded benefits did not deprive Betty B of due

                    2
process of law. Finally, we hold that the agency properly augmented
Stanley's benefits to account for his adult son, who was disabled.

I.

The procedural history of this case is both lengthy and complex.
We will describe this history in some detail because it, rather than the
merits of the miner's claim, is the focus of the coal company's argu-
ments.

Twenty years ago, on May 7, 1979, Art Stanley filed a claim for
benefits under the Black Lung Benefits Act (the Act), 30 U.S.C. § 901
et seq. A Department of Labor claims examiner denied the claim on
July 1, 1980. The form denial letter advised Stanley that within sixty
days he could submit additional evidence or request a hearing before
an administrative law judge. It also informed him that he could seek
"reconsideration" of the denial within a year if he could show that his
condition had changed or that "a mistake was made when [his] claim
was denied." (In using the term "reconsideration," the letter was refer-
ring to the Act's modification procedure, which we discuss in part
III.)

Stanley submitted additional evidence on September 16, 1980, out-
side of the sixty-day period. On October 3, 1980, the claims examiner
reiterated the denial, "administratively clos[ed]" the case, and again
advised Stanley that he could seek "reconsideration," that is, modifi-
cation, for up to a year after "our initial finding." Stanley did not wait
long; he requested modification on October 9, 1980. Within a week,
on October 16, the claims examiner contacted Stanley's lawyer by
telephone and advised him that the claim would remain denied.

Eleven months later, on September 16, 1981, Stanley filed a new
claim, a claim that would be construed as a request for modification
of the October 16, 1980, denial. As a result of this new filing, the
claims examiner, on March 9, 1982, made an initial finding of eligi-
bility and identified Betty B as the responsible operator. Betty B filed
a controversion to the claim. The case then languished for nearly five
years awaiting an evidentiary hearing. A hearing was finally held
before an ALJ on January 7, 1987. On July 27, 1987, the ALJ denied

                     3
benefits. In deciding the claim, the ALJ applied the permanent regula-
tions at 20 C.F.R. Part 718.

Stanley appealed the ALJ's decision to the BRB. The Director of
the Office of Workers' Compensation Programs filed a cross-appeal.
The Director contended that the ALJ erred by analyzing the claim
under the permanent regulations rather than under the interim regula-
tions at 20 C.F.R. Part 727. On February 26, 1990, the BRB agreed
with the Director and remanded the claim for reconsideration under
the interim criteria. Eighteen months later, on October 29, 1991, the
ALJ issued a new decision awarding benefits. Betty B appealed, and
the case went before the BRB for a second time.

Stanley died of pneumonia on April 10, 1993.

On April 19, 1994, the BRB affirmed the award, but remanded for
recalculation of the date of onset of disability. Just three months later,
on July 29, 1994, the ALJ responded to the remand with an order set-
ting September 1, 1981, as the date of onset. In addition, the ALJ cor-
rected an oversight in his 1991 decision and augmented the benefits
to account for Stanley's disabled adult son, Roy Dean Stanley.

Thereafter, the procedural entanglement went from bad to worse.
On July 28, 1994, a day before the ALJ's order on remand, Betty B
had mailed its "Motion for Leave to File Employer's Brief on
Remand and Establish Briefing Schedule." Though he had already
rendered a decision, the ALJ granted Betty B's motion on August 4,
1994. Perhaps unsure of how to preserve its rights, Betty B appealed
the ALJ's July 29, 1994, decision to the BRB. On December 6, 1994,
the ALJ issued a "memorandum" noting that Betty B had not filed the
brief permitted by his August 4, 1994, order, but concluding that
because of Betty B's appeal to the BRB, he no longer had jurisdiction.
The Director then filed a motion with the BRB asking it to clarify the
status of the case. The BRB responded by cutting the knot: it con-
strued Betty B's motion for leave to file a brief with the ALJ as a
motion to reconsider the ALJ's July 29, 1994, decision, and it dis-
missed Betty B's appeal as premature. Betty B then filed its brief with
the ALJ.

Because of the intervening retirement of the original ALJ, the case
was reassigned to a different one, who on October 7, 1996, issued an

                     4
order denying reconsideration. For the fourth time, the case was
appealed to the BRB, and the BRB affirmed the award of benefits on
October 23, 1997. Undaunted, Betty B filed a timely motion for
reconsideration with the BRB. On September 30, 1998, the BRB
issued an order granting Betty B's motion for reconsideration, but it
rejected all of Betty B's assertions of error and reaffirmed its prior
rulings in all respects. Betty B then filed a timely petition for review
(No. 98-2731) of the September 30, 1998, order in this court and a
second motion for reconsideration before the BRB. On December 18,
1998, the BRB summarily denied the second reconsideration request.
That denial prompted Betty B to file another petition for review (No.
99-1057) in this court on January 13, 1999.

II.

Although none of the parties challenges our jurisdiction over the
petitions for review, we believe that substantial questions of jurisdic-
tion exist. As a consequence, we have a special obligation to satisfy
ourselves, before deciding anything substantive, that we do have
jurisdiction. Mitchell v. Maurer, 

, 244 (1934).

We begin with No. 99-1057, the petition filed after the BRB sum-
marily denied Betty B's second motion for reconsideration. Ordinar-
ily, a petition for review of a final order of the BRB must be filed in
the court of appeals within sixty days of the order. 33 U.S.C. § 921(c)
(1994); 20 C.F.R. § 802.410(a). However, if a timely motion for
reconsideration is filed with the BRB, the sixty-day period "will run
from the issuance of the Board's decision on reconsideration." 20
C.F.R. § 802.406. The Sixth and Seventh Circuits have held that sec-
ond and successive motions for reconsideration do not further toll the
period for filing a petition for review. Midland Coal Co. v. Director,
OWCP, 

(7th Cir. 1998); Peabody Coal Co. v. Abner,

(6th Cir. 1997). Hence, because No. 99-1057 was filed
more than three months after the BRB's decision on the first motion
for reconsideration, Midland Coal and Peabody Coal would call for
its dismissal for want of jurisdiction.

We need not decide whether to follow the lead of the Sixth and
Seventh Circuits today because No. 99-1057 has a more clear-cut
jurisdictional defect. In that petition Betty B seeks "review of the

                     5
order . . . issued December 18, 1998." The specified order did nothing
more than summarily deny reconsideration, and that leads to the juris-
dictional problem. "[W]here a party petitions an agency for reconsid-
eration on the ground of `material error,' i.e., on the same record that
was before the agency when it rendered its original decision, `an order
which merely denies rehearing . . . is not itself reviewable.'" ICC v.
Brotherhood of Locomotive Eng'rs, 

, 280 (1987) (quot-
ing Microwave Communications, Inc. v. FCC, 

, 387 n.7
(D.C. Cir. 1974)). Because the petition in No. 99-1057 asks us to
review an unreviewable order, we must dismiss that petition for lack
of jurisdiction.

The other petition, No. 98-2731, was filed November 25, 1998,
within sixty days of the BRB's decision on Betty B's first motion for
reconsideration. Under 20 C.F.R. § 802.406 Betty B could have then
petitioned for review of the BRB's original order affirming the
award, but it instead asked for review of "the decision . . . issued Sep-
tember 30, 1998." That decision, of course, resolved the first motion
for reconsideration adversely to Betty B.

Fortunately for Betty B, however, the BRB granted that motion for
reconsideration, even though it denied any relief. This action makes
all the difference insofar as the reviewability of the order is con-
cerned.

          When the [agency] reopens a proceeding for any reason and,
          after reconsideration, issues a new and final order setting
          forth the rights and obligations of the parties, that order --
          even if it merely reaffirms the rights and obligations set
          forth in the original order -- is reviewable on its merits.

Locomotive 

(emphasis added). Of course,
both a denial of reconsideration and a reaffirmation after reconsidera-
tion leave the situation unchanged. Moreover, an order ostensibly "de-
nying" reconsideration may explain the agency's reasons in such
detail as to demonstrate that the agency did indeed give the case a
second look (and thereby "reconsidered" in a dictionary sense). How
then are courts to distinguish appealable reaffirmations from unap-
pealable denials? In Locomotive Engineers the Supreme Court drew
a bright line: the agency's "formal disposition" controls.

                     6
           It is irrelevant that the [agency's] order refusing reconsid-
          eration discussed the merits of the [movants'] claims at
          length. Where the [agency's] formal disposition is to deny
          reconsideration, and where it makes no alteration in the
          underlying order, we will not undertake an inquiry into
          whether reconsideration "in fact" occurred. In a sense, of
          course, it always occurs, since one cannot intelligently rule
          upon a petition to reconsider without reflecting upon, among
          other things, whether clear error was shown. It would hardly
          be sensible to say that the [agency] can genuinely deny
          reconsideration only when it gives the matter no thought;
          nor to say that the character of its action (as grant or denial)
          depends upon whether it chooses to disclose its reasoning.
          Rather, it is the [agency's] formal action, rather than its dis-
          cussion, that is dispositive.

Unlike the agency in Locomotive Engineers, the BRB
here formally "granted" reconsideration in its September 30, 1998,
order, even though it denied any relief to Betty B. We therefore have
jurisdiction in No. 98-2731.

III.

The first substantive issue in this case involves the Act's so-called
"modification" procedure. Betty B argues that modification is only
available for one year after the first denial of a claim, while the Direc-
tor argues that each denial of modification resets the clock and starts
the one-year period anew. Before going on to the particulars of this
disagreement, we should describe "modification" generally.

Section 22 of the Longshore and Harbor Workers' Compensation
Act (Longshore Act) provides:

           Upon his own initiative, or upon the application of any
          party in interest . . . on the ground of a change in conditions
          or because of a mistake in a determination of fact by the
          deputy commissioner, the deputy commissioner may, at any
          time prior to one year after the date of the last payment of
          compensation, whether or not a compensation order has
          been issued, or at any time prior to one year after the rejec-

                     7
          tion of a claim, review a compensation case . . . [and] issue
          a new compensation order which may terminate, continue,
          reinstate, increase, or decrease such compensation, or award
          compensation.

33 U.S.C. § 922 (1994) (emphasis added).1 Section 22 is incorporated
into the Black Lung Benefits Act by 30 U.S.C. § 932(a) (1994), and
a regulation to implement it has been promulgated by the Department
of Labor. 20 C.F.R. § 725.310.

This modification procedure is extraordinarily broad, especially
insofar as it permits the correction of mistaken factual findings. Sec-
tion 22 "vest[s] a deputy commissioner with broad . . . discretion to
correct mistakes of fact, whether demonstrated by wholly new evi-
dence, cumulative evidence, or merely further reflection on the evi-
dence initially submitted." O'Keeffe v. Aeroject-General Shipyards,
Inc., 

, 256 (1971) (emphasis added); Jessee v. Director,
OWCP, 

, 725 (4th Cir. 1993) (concluding that the deputy
commissioner may "simply rethink" a prior finding). Congress
intended that this discretion be exercised whenever"desirable in order
to render justice under the act." Banks v. Chicago Grain Trimmers
Ass'n, 

, 464 (1968). Moreover, any mistake of fact may
be corrected, including the ultimate issue of benefits eligibility.

.

Black lung proceedings, especially at early stages, are "by nature
informal." Consolidation Coal Co. v. Borda , 

, 180 (4th
Cir. 1999). Almost any sort of correspondence from the claimant can
constitute a request for modification of a denial, as long as it is timely
and expresses dissatisfaction with a purportedly erroneous denial. 

At the other end of the formality spectrum, a claimant does
not forfeit the advantages of modification just because, as in Stanley's
_________________________________________________________________
1 The statute's reference to a"deputy commissioner" is out-of-date.
Deputy commissioners have been replaced by "district directors," 20
C.F.R. § 725.101(a)(11), and under the Administrative Procedures Act
some of the duties formerly performed by deputy commissioners have
been assigned to ALJs, see Jessee v. Director, OWCP, 

, 725
n.2 (4th Cir. 1993); Eifler v. OWCP, 

, 665-666 (7th Cir.
1991).

                    8
case, his filing is styled as a new claim. Banks , 390 U.S. at 465 n.8
(finding it "irrelevant" that modification request was labeled a new
claim for compensation). In short, the modification procedure is flexi-
ble, potent, easily invoked, and intended to secure"justice under the
act."

Betty B concedes the general liberality of the modification proce-
dure, but it argues that the procedure nonetheless has a limit set by
Congress: modification is available only for one year after the first
rejection of a claim. According to the company, because Stanley's
September 16, 1981, claim was filed more than one year after the ini-
tial denial on July 1, 1980, we should treat the September 16, 1981,
filing as a new, "duplicate" claim, subject to the threshold "material
change in condition" test at 20 C.F.R. § 725.309(d). See generally
Lisa Lee Mines v. Director, OWCP, 

(4th Cir. 1996) (en
banc), cert. denied, 

(1997). Moreover, because this
new claim was filed after March 31, 1980, Betty B says that the per-
manent regulations at 20 C.F.R. Part 718 should apply. See 20 C.F.R.
§ 718.2.

The Director sees the law differently. In his view, a denial of modi-
fication is the "rejection of a claim," and a new modification petition
may be filed within a year of the denial of a prior one. Thus, accord-
ing to the Director, Stanley's September 16, 1981, claim constituted
a timely request for modification of a claim denied on October 16,
1980, a claim that was subject to the Part 727 interim regulations. We
should defer to the Director's interpretation of an ambiguous statute
that he administers if his interpretation is reasonable. Pauley v.
BethEnergy Mines, Inc., 

, 696 (1991); Lisa Lee 

. See generally Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 

(1984).2 We conclude
that the Director's interpretation is reasonable for several reasons.

In terms of the statutory language, the issue is whether "the rejec-
tion of a claim" includes the denial of a request for modification. In
_________________________________________________________________
2 The BRB agrees with the Director's position. See Garcia v. Director,
OWCP, 12 BLR 1-24 (BRB 1988). In any event, it is the Director's, and
not the BRB's, interpretation to which we owe deference. Potomac Elec.
Power Co. v. Director, OWCP, 

, 278 n.18 (1980).

                    9
other words, was the October 16, 1980, denial of Stanley's request for
modification the rejection of a claim? The Director reasons that inas-
much as a modification request prompts a de novo review, the denial
of such a request is essentially the same thing as the denial of the ini-
tial "claim." Practice under the regulations bears out this reasoning.
Just as in a first claim, processing of a request for modification begins
with the collection of evidence at the district director level. 20 C.F.R.
§ 725.310(b). If a party is dissatisfied with the district director's deci-
sion, the party may request a hearing, and the proceeding is referred
to an ALJ under §§ 725.421 and .451. See Cunningham v. Island
Creek Coal Co., 

, 390 (6th Cir. 1998) (noting that the
availability of a hearing under § 725.451 applies "to all Black Lung
claims, including modification requests"); Arnold v. Peabody Coal
Co., 

, 1209 (7th Cir. 1994) (holding that claimant was
entitled to a hearing before an ALJ on his request for modification);
cf. Lukman v. Director, OWCP, 

, 1251-1254 (10th Cir.
1990) (holding that because all "claims" are subject to hearing rules,
claimant who had filed "duplicate claim" had right to hearing on
whether he had shown a material change in conditions). This hearing
on a modification request is de novo. Keating v. Director, OWCP, 

, 1123 (3d Cir. 1995). Moreover, the ALJ may proceed to
address the issue of entitlement without first deciding the threshold
modification issue -- that is, whether there was a"mistake of fact"
in the prior rejection of the claim -- because a decision awarding ben-
efits on modification would necessarily mean that the prior rejection
was a mistake of ultimate fact. Kott v. Director, OWCP, 17 BLR 1-
9 (BRB 1992); Motichak v. BethEnergy Mines, Inc. , 17 BLR 1-14
(BRB 1992). After the ALJ issues a decision, as this case illustrates,
an aggrieved party may seek review by the BRB and the courts.
Finally, it bears repeating that the factfinder is in no way bound by
the findings supporting the original denial. The sum of a de novo
review and a de novo process is a new adjudication. If the claimant
comes out on the losing end of this new adjudication, it does no vio-
lence to the statutory language to deem the result"the rejection of a
claim."

Furthermore, the limited case law on the subject also supports the
Director. Our court has said, albeit in dictum, that the Director's view
on this issue is correct. In Lisa Lee Mines the claimant had not filed
a timely request for modification. Instead, he filed a new claim three

                     10
years after the denial of his initial one. Lisa Lee 

. We sat en banc to decide "the proper standard to determine
whether a given claimant has proved a `material change in condition'"
so as to avoid 20 C.F.R. § 725.309(d)'s command that "the later claim
shall be denied, on the grounds of the prior denial." 

The
responsible operator, in urging us to reject the Director's proposed
standard, suggested that the Director's standard was so liberal that it
would invite endless, abusive litigation. We were told that claimants
were sure to file over and over and over unless the"material change
in condition" bar was a high one. We were unimpressed:

           This scenario belongs to that genre of horribles that seems
          impressive in academic debate but has little relevance to real
          life. Any claimant who wants to be a perpetual litigator can
          already be a perpetual litigator, and in a much easier fash-
          ion. The day before [a year runs from the prior denial], the
          miner may file a request for "modification" of the earlier
          denial.

Thus, we assumed that the modification process is avail-
able multiple times. Though not controlling here, this dictum of our
en banc court at the very least attests to the reasonableness of the
Director's understanding of the statute and regulations.3
_________________________________________________________________
3 In at least two cases in which multiple modification requests were
made, we appear to have assumed that the intervening denials of modifi-
cation were of no consequence. See Curry v. Beatrice Pocahontas Coal
Co., 

(4th Cir. 1995); Lee v. Consolidation Coal Co., 

(4th Cir. 1988). We cannot confidently cite either as direct sup-
porting authority, however. In Lee, although the claimant filed two suc-
cessive modification petitions, the first one had been denied with such
uncharacteristic dispatch that the second one was also filed within a year
after the initial denial became final upon affirmance by the BRB. In
Curry we described (in two footnotes) a procedural labyrinth beside
which today's case resembles a crow's flight 

nn.2-
3. Curry undoubtedly involved at least two modification proceedings, but
it is unclear when the initial denial became final.

A third case, Borda, differs from this one because the miner submitted
new evidence within sixty days of the initial administrative denial, which
kept the original claim alive until it was denied again a few months later.

; see 20 C.F.R.§ 725.410(c)(2) (If claimant sub-
mits additional evidence, "the deputy commissioner shall reconsider the
initial finding."). His request for modification, filed within a year of the
latter denial, was therefore timely.

                     11
Keating, a recent decision of the Third Circuit, lends more support
to the Director. There, a miner's widow had filed successive requests
for modification. The one before the court was timely if the Director's
interpretation of § 22 is correct, but untimely if it is not. The ALJ to
whom the request was presented "chastised the widow, stating that the
modification process `does not permit continuous reweighing of testi-
mony by Judge after Judge until a friendly factfinder is found.'"

. The Third Circuit chastised the ALJ: "It is
not apparent from the record whether she was shopping for a friendly
factfinder or just a fair one. It is painfully obvious, however, that she
found neither." 

The court reversed, holding that the ALJ
had a duty to render de novo factual findings on the modification
request. 

This holding necessarily assumes that the second
modification request was timely.

Betty B attempts to rely on footnote 6 of Metropolitan Stevedore
Co. v. Rambo, 

(1997), but Rambo is not helpful here.
Under the Longshore Act partial disability is compensable, and the
amount of compensation is measured by an injury's economic effect
on the worker's present earning capacity. In Rambo the issue was how
(and whether) to preserve the availability of future compensation to
a longshore worker whose injury did not currently cause any loss of
earnings. This situation can never happen in a black lung case because
only total disability is compensable. In any event, the Supreme Court
held, in agreement with the Director, that it was proper to make a
nominal award that could be modified if and when the claimant suf-
fered future economic harm. 

. In footnote
6 the Court simply rejected, as a "strange way to administer the Act,"
the notion that the claim should be denied outright, which would put
the claimant to the task of filing annual requests for modification until
his economic situation changes. 

& n.6. To the extent the
Court may have implied that repeat filings might be improper, it was
not on account of their repetitiveness alone, but rather because "a
claimant would repeatedly file reapplications knowing his disability
to be without present effect and . . . without any good-faith claim to
the present compensation sought." 

n.6.

Lastly, we address the prospect that permitting multiple petitions
for modification invites abuse of the process by claimants. If there are
(or should be) abuse-based limits to repetitive requests for modifica-

                     12
tion, this case is not the one to define them. Every court in the land
is familiar with never-say-die litigants, who are frequent filers. For all
their perseverence and passion, their successes are exceedingly rare.
Thus, it seems quite unlikely that OWCP will often reverse course
and find some "mistake of fact" after repeated denials.4 See 

(noting that although an ALJ "undeniably" has the power
to simply change his mind, the power would surely be exercised "sel-
dom, if at all"). More important, Stanley's modest, informal attempts
to persuade the 1980 claims examiner to change his mind could fit no
objective definition of abuse.

In sum, even if this court might agree with the company that one
bite at the modification apple is better policy, the Director's interpre-
tation is not "plainly erroneous or inconsistent" with the Act or regu-
lations. Mullins Coal Co. v. Director, OWCP, 

, 159
(1987) (quoting Bowles v. Seminole Rock & Sand Co., 

,
414 (1945)). Hence, we owe it substantial deference. Stanley's Sep-
tember 16, 1981, claim was therefore properly adjudicated as a
request to modify the rejection of a claim subject to the interim regu-
lations.

IV.

Next, Betty B asserts that it has been denied due process of law.
It complains generally about the quality of the process before the
BRB and the ALJs, and it asserts specifically that it had a due process
right to reopen the record and to develop and present additional evi-
dence following the BRB's 1990 holding that the interim regulations
applied to the claim.

This court has not hesitated to shield operators and their insurers
from liability when their core due process right to timely notice of the
proceeding has been violated. See, e.g., Consolidation Coal Co. v.
Borda, 

(4th Cir. 1999) (holding that failure to notify
_________________________________________________________________
4 It is worth noting that a change in conditions will always support de
novo reconsideration, even if a year has passed since a denial, because
"[t]he health of a human being is not susceptible to once-in-a-lifetime
adjudication." Lisa Lee 

. Even a tiresome repeat
filer should receive his benefits if and when he becomes entitled to them.

                     13
operator of viable 1978 claim for benefits until 1994 deprived it of an
opportunity to meaningfully defend itself); Lane Hollow Coal Co. v.
Director, OWCP, 

(4th Cir. 1998) (concluding that
seventeen-year delay in notifying responsible operator of claim, dur-
ing which time the claimant died, deprived operator of due process);
Tazco, Inc. v. Director, OWCP, 

(4th Cir. 1990) (holding
that a default judgment entered without notice to the operator's insur-
ance carrier violated the carrier's due process rights). All of these
cases presented due process issues of a far different order than the one
advanced today by Betty B. Betty B complains about the course of
the administrative proceedings; the respondents in Borda, Lane
Hollow, and Tazco were unaware that proceedings were even under
way. To be sure, the course of the proceedings can violate due pro-
cess, but if this happens, it will be on account of some prejudicial,
fundamentally unfair element. If Betty B's "day in court" was fair
(albeit imperfect) and the outcome reliable, then due process was
achieved. Lane 

.

Betty B cites Harlan Bell Coal Co. v. Lemar, 

(6th
Cir. 1990), for its specific argument that the record should have been
reopened. In Harlan Bell the Sixth Circuit held that an operator had
been denied due process because the ALJ had refused to reopen the
record following a circuit court decision that had interpreted 20
C.F.R. § 727.203(b)(2) to mean something different than the operator
thought it 

. We have never endorsed
Harlan Bell, and we decline to do so today. While we have no quarrel
with encouraging ALJs to exercise their discretion to reopen when
doing this would promote justice (and we would not hesitate to cor-
rect abuses of that discretion), we are reluctant to compel reopening
as a matter of constitutional law any time debatable questions of law
are resolved by the BRB or the courts. When such open questions are
answered, the law has been declared, not changed.

The Part 727 regulations have been the law for over two decades,
and the permanent regulations for nearly as long. Neither set of regu-
lations is a model for draftsmen, and a great deal of litigation over
their meaning has taken place. Employers have urged various
employer-centered interpretations; claimants have responded in kind.
Each side has won some and lost some. When employers won, some
claims were vacated; when employers lost, some denials became

                    14
awards. That is just the way our system works. In a civil case a court
does not deprive a party of due process by correcting that party's mis-
apprehension of the law. As Justice McKenna put it many years ago:

          Due process of law does not assure to a [citizen] the inter-
          pretation of laws by the executive officers . . . as against
          their interpretation by the courts . . . or relief from the con-
          sequences of a misinterpretation by either. . . .[I]t is the
          province of the courts to interpret the laws . . . and he who
          acts under them must take his chance of being in accord
          with the final decision. And this is a hazard under every law,
          and from which or the consequences of which we know of
          no security.

Thompson v. Kentucky, 

, 346 (1908).

We go from this overview to the circumstances of this case. When
we look at the hearing transcript of January 7, 1987, we immediately
discover that Betty B was confronted with and attempted to fend off
the suggestion that the interim regulations applied to Stanley's claim
and that the company was aware of the 1979 claim and of its disposi-
tion. We also discover that the applicability of the interim regulations
was an issue in the very first appeal to the BRB. Although Stanley's
appeal simply attacked the ALJ's factual findings, the Director noted
his own appeal of the denial of benefits and urged application of 727
under Garcia.5 Finally and most importantly, we see that Betty B's
professed desire to develop new evidence is of very recent vintage.
_________________________________________________________________

5 Notwithstanding Betty B's suggestions to the contrary, the Director
had standing to participate in the appeal. See 30 U.S.C. § 932(k) ("The
Secretary shall be a party in any proceeding relative to a claim for bene-
fits."). In a case that denied the Director standing under the Longshore
Act as a "person adversely affected or aggrieved," the Supreme Court
explicitly recognized that Congress bestowed standing on the Secretary
of Labor in all black lung proceedings. Director, OWCP v. Newport
News Shipbuilding and Dry Dock Co., 

, 129 (1995) ("[T]he
United States Code displays throughout that when an agency in its gov-
ernmental capacity is meant to have standing, Congress says so.") (citing
30 U.S.C. § 932(k)).

                    15
At the 1987 hearing the claimant's lawyer spoke in closing argu-
ment of "triggering the presumption" and said the company had a bur-
den to prove that cigarettes were a factor in the miner's disability. It
is not absolutely certain from their context that these assertions
referred to the interim presumption rather then the 15-year presump-
tion of 20 C.F.R. 718.305, which was applicable in cases filed before
January 1, 1982.6 Betty B, however, understood the claimant to be
arguing for application of the Part 727 (interim presumption) regula-
tions. In closing argument the company's counsel argued:

          [T]he first major disagreement I apparently have with the
          Claimant is regarding which set of standards this claim is to
          be adjudicated under.

           [Claimant's lawyer] has made reference to the presump-
          tion and he has made reference to the interim presumption
          criteria. My file reflects that the application which is being
          adjudicated here today, was filed on September 16, 1981,
          which makes this a 718 claim, although there was a prior
          claim.

           That claim was denied and the case was closed out with-
          out the requisite appeals by the Claimant. I think that is the
          first and most important part to this case.

(Emphasis added.) Thus, unlike in Borda, Betty B cannot claim igno-
rance of the prior claim that has been kept alive through the modifica-
tion procedure or of its opponent's argument for application of the
interim criteria. Betty B's lawyer may have expected that the com-
pany would easily prevail on the issue of whether the interim criteria
_________________________________________________________________
6 The § 718.305 presumption differed from the Part 727 interim pre-
sumption in that it required a longer duration of coal mine employment
(fifteen rather than ten years) and could be invoked only by evidence of
a totally disabling respiratory or pulmonary impairment. Upon such
proof the existence of pneumoconiosis and its contribution to the impair-
ment were presumed, subject to affirmative rebuttal of either presumed
fact. Consequently, if the cause of impairment was simply unknown, the
presumption was not rebutted. See 20 C.F.R.§ 718.305(d); Barber v.
Director, OWCP, 

, 900-901 (4th Cir. 1995).

                    16
applied, but he surely had "notice" of it. Moreover, as we noted
above, the Director pressed the issue in a cross-appeal to the BRB. In
light of all of this, Betty B's suggestion that the BRB's 1990 decision
(remanding for reconsideration under the interim criteria) was an
unforeseeable bolt from the blue is surely an overstatement. We very
much doubt that due process would be offended by failing to afford
the company a second opportunity to garner and present evidence on
an issue it could have and should have anticipated originally.

Regardless of whether Betty B was entitled to reopen the record
and submit new evidence, the record discloses that it made no timely
effort to do so. Even on the first referral of a claim to an ALJ, hear-
ings are not automatic; a party must request a hearing in writing. 20
C.F.R. § 725.451. Once a hearing has been held, the ALJ may reopen
the hearing "for good cause shown." 20 C.F.R.§ 725.454.

Betty B neither asked the ALJ for a reopening of the hearing nor
suggested that reopening was compelled. On February 26, 1990, the
BRB remanded the claim for reconsideration under the interim
criteria. The record is then silent until the ALJ's award of benefits
eighteen months later. Surely the ALJ could have by then assumed
that anyone who wanted to reopen the record would have long since
asked for that to be done. Betty B petitioned the BRB for review of
that award of benefits. In its brief, dated May 19, 1992, it did not
assert any need for further evidentiary development. Moreover, it did
not suggest that it had been refused a new hearing or somehow pre-
vented from requesting one.

When the BRB remanded yet again in April 1994, Betty B did file
a motion requesting an opportunity to provide input. However, this
motion was a simple and short request that Betty B be allowed to file
a brief. No evidentiary hearing was requested. The ALJ granted Betty
B's request to file a brief, which it filed with him after the BRB dis-
missed Betty B's appeal.7 The brief to the ALJ is more of the same.
Once again, Betty B made no request for a hearing of any kind and
made no suggestion that further evidentiary development was neces-
_________________________________________________________________
7 For what it is worth, Betty B had already filed a brief in the aborted
third appeal to the BRB. This brief did not raise any issue of the denial
of a due process right to develop new evidence.

                    17
sary or even desirable. After reconsideration was denied by the ALJ
and the fourth trip to the BRB was under way, Betty B submitted a
brief that, at long last, asserted that a remand was required by due
process for the development of new evidence under the interim stan-
dards. This brief is dated December 4, 1996, nearly seven years after
the BRB ruled that the interim regulations applied. The BRB rejected
the due process argument "because employer failed to raise the issue
in the previous appeal, or before [the ALJ] on remand via a request
to reopen the record."

We agree with the BRB. The due process right to be heard compels
the government to listen, but not the defendant to speak. It is a right
to "choose . . . whether to appear or default, acquiesce or contest."
Mullane v. Central Hanover Bank & Trust Co., 

, 314
(1950) (emphasis added). By failing to ask the ALJ to reopen the evi-
dentiary record, Betty B acquiesced in the resolution of the claim on
the existing record. The company was not deprived of due process of
law.

V.

Finally, Betty B argues that the ALJ's order augmenting Stanley's
benefits to account for his disabled adult son Roy Dean Stanley vio-
lated its due process rights and was improper in any event.

To begin with, Betty B likely has no defense to augmentation on
the merits. The son's eligibility for and receipt of social security dis-
ability benefits is of record, and the regulations use the social security
definition, see 20 C.F.R. § 725.209(a)(2)(ii), to determine eligibility
for augmented black lung benefits. On the other hand, if a core viola-
tion of due process occurred, "it is no answer to say that . . . due pro-
cess would have led to the same result because [the defendant] had
no adequate defense upon the merits." Coe v. Armour Fertilizer
Works, 

, 424 (1915), cited in Lane 

.

We turn first to the due process issue. In its opening brief Betty B
asserts that it had "no opportunity to litigate Roy Dean's case at all."
Petitioner's Opening Brief at 10. In its reply it contends that "when
the case originally was tried, there was no need to investigate Roy

                     18
Dean's situation." Petitioner's Reply Brief at 11. If these assertions
were accurate, they would be cause for great concern. They are not
accurate, however.

Betty B plainly had notice that augmented benefits were sought
because augmentation for Roy Dean was alleged in the modification
request filed on September 16, 1981. Moreover, at the start of the
hearing, the parties and the ALJ specifically identified the augmenta-
tion issue as disputed. As a result, the ALJ noted,"we will get some
testimony on [the son]." Stanley testified that his son was mentally
incapable of taking care of himself, received social security benefits
and supplemental security income, had tried to go to school but failed,
and lived at home. On cross-examination Betty B asked Stanley noth-
ing about the matter, and it made no mention of Roy Dean in its clos-
ing argument. Finally, in its brief on remand Betty B did not request
an opportunity to develop or submit evidence about Roy Dean's enti-
tlement. Instead, it rested on an assertion that the existing record was
inadequate to establish his entitlement. Thus, Betty B had notice of
Roy Dean's potential eligibility and an adequate opportunity to con-
test it. Due process requires nothing more.

We next turn to whether, irrespective of the lack of a due process
violation, the augmentation of benefits was nonetheless improper.
Augmentation for Roy Dean was proper, we believe.

Betty B argues that the denial of augmented benefits became final
when Stanley failed to note a cross-appeal from the ALJ's 1991 deci-
sion that awarded him benefits but neglected to mention the augmen-
tation issue. Betty B's argument would have somewhat greater force
if augmented benefits had actually and explicitly been denied by the
ALJ or if the benefits award had been allowed to become final in
1991. Instead, the ALJ failed to resolve a contested issue, and he real-
ized his error when the case was once again pending before him. We
must note that even had he actually denied augmentation and had his
order become final, the ALJ would have had a year during which he
could have modified the order on his own initiative. See 20 C.F.R.
§ 725.310(a). The BRB cited this power in holding that "administra-
tive efficiency" supported allowing the ALJ to correct his mistake
right away rather than by invoking the modification process yet again.
In short, it would require a final denial of augmented benefits and a

                     19
subsequent lapse of one year to make the ALJ's error irreparable. Nei-
ther occurred here.

In the alternative, the company argues that Stanley was estopped
from asserting any claim for augmented benefits."An essential ele-
ment of any estoppel is detrimental reliance on the adverse party's
representations." Lyng v. Payne, 

, 935 (1986). Moreover,
the party claiming an estoppel must show that its reliance was reason-
able, that is, it "did not know nor should it have known that its adver-
sary's conduct was misleading." Heckler v. Community Health Servs.,

, 59 (1984). Of course, all of Stanley's express representa-
tions concerning augmented benefits state that he was entitled to
them. Moreover, because the 1991 award did not mention Roy Dean's
eligibility, Stanley cannot be said to have acquiesced in a denial, let
alone that the circumstances rendered his silence so pregnant with
meaning as to amount to a "representation." Finally, Betty B does not
explain how it reasonably relied to its detriment on any such silent
"representation." The record concerning Roy Dean was made in 1987.
In retrospect, Betty B may wish that it had done more to develop that
record, but it cannot explain its 1987 inaction by reliance on Stanley's
failure to cross-appeal in 1991. We cannot conclude that equity
should impose an estoppel to bar Stanley's claim for augmented bene-
fits.

VI.

The petition for review in No. 99-1057 is dismissed, and the award
of black lung benefits to Art Stanley is affirmed in No. 98-2731.

No. 98-2731 - AFFIRMED
No. 99-1057 - DISMISSED

                    20