Old Ben Coal Company v. Office of Workers ’ Compensation Programs , United States Department of Labor

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2189
O LD B EN C OAL C OMPANY ,
Petitioner,
v.
O FFICE OF W ORKERS ’ C OMPENSATION P ROGRAMS , U NITED
S TATES D EPARTMENT OF L ABOR , and A NNA M ELVIN ,
Respondents.
____________
On Petition to Review an Order of the
Benefits Review Board, U.S. Department of Labor.
No. 94-BLA-1116
____________
A RGUED J ANUARY 11, 2007—D ECIDED J ANUARY 25, 2007
____________
Before B AUER , P OSNER , and F LAUM , Circuit Judges.
P OSNER , Circuit Judge. Robert Melvin first applied for
black lung benefits in 1980. 30 U.S.C. §§ 901-45; 20 C.F.R.
§§ 727.200-.206. After amazingly protracted proceedings
unnecessary to describe, last year the Benefits Review
Board upheld an award to his widow of benefits, Melvin
v. Old Ben Coal Co., BRB No. 04-0506 BLA (Dept. of Labor
July 11, 2005), that a petition for review, in the name of
Old Ben Coal Company, asks us to set aside. In her brief
in response to the petition, Mrs. Melvin asks us to dismiss

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2 No. 06-2189
the petition on the startling grounds that the purported
petitioner, Old Ben Coal Company, neither exists nor is
represented by counsel. A corporation cannot litigate in
federal court pro se. Rowland v. California Men’s Colony,
506 U.S. 194, 201-02 (1993); Muzikowski v. Paramount
Pictures Corp., 322 F.3d 918, 924 (7th Cir. 2003).
Old Ben did not deign to file a reply brief, so we ordered
it to do so. It is now apparent that the case must be dis-
missed, though not on the precise grounds advanced by
Mrs. Melvin: that no lawyer filed an appearance in this
court and that Old Ben is deceased. A party’s counsel need
not file a formal appearance in this court, and the dis-
solution of a firm need not abate suits by or against it,
Canadian Ace Brewing Co. v. Joseph Schlitz Brewing Co., 629
F.2d 1183, 1185-86 (7th Cir. 1980), since “the dissolved
corporation might have a successor that could be substi-
tuted for it and the suit continue.” BondPro Corp. v. Siemens
Power Generation, Inc., 463 F.3d 702, 705 (7th Cir. 2006). Old
Ben, however, as we’ll see, has no successor.
In 2004, a bankruptcy judge ordered the liquidation of
Old Ben together with its parent, Horizon Natural Re-
sources Company. But the order states that pending black
lung claims against the debtors in the bankruptcy pro-
ceeding, including Old Ben, “shall not be dismissed but
instead, allowed to proceed to final adjudication with the
applicable debtors as parties. Finally adjudicated claims
that result in benefit awards will not be enforced against
the Debtors but rather will form the basis for collection
from any other responsible parties therefore, including
without limitation, the Debtors[’] sureties under the
[black lung statute].” In re Horizon Natural Resources Co.,
No. 02-14261, slip op. at 44-45 (Bankr. E.D. Ky. Sept. 16,
2004). That was a confusing order. Old Ben was liquidated

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No. 06-2189 3
and no successor designated; and because suits against it
were allowed to proceed only outside the bankruptcy
court, claimants could not satisfy their claims out of assets
of the debtors’ estates in bankruptcy. But although the
bankruptcy proceeding is not yet closed, apparently there
are no assets.
Several months after the bankruptcy court’s order,
while the Melvin case was pending before the Benefits
Review Board, Greenberg Traurig LLP, the law firm that
had represented Old Ben in that case, withdrew as coun-
sel. But after the Board affirmed the award of benefits,
the firm filed a motion for reconsideration, and, after that
was denied, filed the petition for review in this court, filed
briefs, and appeared at argument. It never filed a formal
appearance in this court, but none was required. 7th Cir. R.
3(d). What was strange was the representation of a com-
pany that no longer had any palpable existence or suc-
cessor.
In the reply that we ordered, Greenberg Traurig argues
that the bankruptcy judge’s order “preserved Melvin’s
claim against Old Ben.” That is not precise. Mrs. Melvin
seeks nothing from Old Ben, which indeed has nothing
that it could give her or anyone else. She had a claim
against Old Ben, but because of Old Ben’s bankruptcy the
claim has been paid by the Department of Labor out of the
Black Lung Disability Trust Fund, which backstops em-
ployer liability to miners disabled by black lung disease. 26
U.S.C. §§ 9501(a), (d); Allen R. Prunty & Mark E. Solomons,
“The Federal Black Lung Program: Its Evolution and
Current Issues,” 91 W. Va. L. Rev. 665 (1989).
The Labor Department is not seeking anything from Old
Ben either. Old Ben has nothing—any doubt on that score
having been dispelled by the bankruptcy court’s action in

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4 No. 06-2189
cutting Old Ben free from the bankruptcy proceeding,
implying that the company has no assets that a bankruptcy
trustee might seek to preserve against black lung claimants
or any other claimants or creditors of Old Ben or its equally
defunct parent, Horizon. Old Ben has no possible stake in
this litigation. It is therefore not a real party in interest,
which is to say a party that has a legally protectable
interest in the outcome of the suit. It is a party in name
only.
The only entities with any possible interest in upending
the award of benefits to Mrs. Melvin, it turns out, are B-P
America and St. Paul Travelers Insurance Company. Once
upon a time, Horizon (Old Ben’s parent) was owned by
Standard Oil of Indiana, which was later acquired by B-P
America. Old Ben tells us that pursuant to 30 U.S.C.
§ 934(b)(1), the Department of Labor may try to recover
the amount of the benefits that it has paid to Mrs. Melvin
from St. Paul, which had issued a surety bond to Stan-
dard Oil. We add that the Department could do so only
if B-P America (as Standard Oil’s successor) is liable to
the Department, since a surety’s liability is derivative
from the liability of the beneficiary of the surety’s bond.
So Greenberg Traurig is pursuing this case on the off-
chance that a nonparty, B-P America or the St. Paul in-
surance company, may be liable to the Department of
Labor, which though named as a respondent in the peti-
tion for review has not filed a brief. It was the Department
that awarded Melvin the benefits that Greenberg Traurig
is challenging, and it is content to allow Mrs. Melvin’s
lawyer to defend the award. The Department may want
to obtain reimbursement of those benefits from B-P or
St. Paul, and conceivably that possibility might have
enabled either of those companies or both to intervene. But
neither has tried to intervene either in this proceeding or

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No. 06-2189 5
in the administrative proceeding, as it could have done.
Any entity, such as an insurance company or a surety,
that would be prejudiced by an award of black lung
benefits is entitled to intervene in the administrative
proceeding with the rights of a party. 20 C.F.R.
§§ 725.360(a)(4), (d). It can seek intervention in this court
as well. Fed. R. App. P. 15(d). Had B-P America or the
St. Paul insurance company a sufficient stake in the
litigation to be entitled to participate as a party, it should
have sought party status. Neither company has done so
and therefore neither is a party. The only entity seeking to
invoke our jurisdiction, namely the ghost of Old Ben,
cannot do so, as it has nothing to lose or gain.
Greenberg Traurig acknowledges that it is being paid
by B-P America and St. Paul. It says, “There is nothing
unusual or legally suspect for potentially responsible
parties to hire attorneys to defend their interests.” Indeed
not. But if X has nothing to gain from winning a suit, it
cannot sue even if Y is paying a lawyer to defend Y’s
interest in the outcome of X’s suit. The existence of that
interest does not make X, which in this case is Old Ben, a
real party in interest. Y would have to intervene if it
wanted to protect its interest. It could not protect that
interest by directing its lawyer to represent a named party
that was not a real party in interest.
D ISMISSED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-25-07

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