Zeigler Coal Company v. T. MICHAEL KERR, Director, Office of Workers’ Compensation Programs, UNITED STATES…

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-1196 & 00-1366
ZEIGLER COAL COMPANY,
Petitioner, Cross-Respondent,
v.
T. MICHAEL KERR, Director, Office
of Workers’ Compensation Programs,
UNITED STATES DEPARTMENT OF LABOR,
Respondent, Cross-Respondent,
and
EDWARD GRISKELL,
Respondent, Cross-Petitioner.
Petition for Review and Cross-Petition
for Review of an Order of the
Benefits Review Board.
Submitted August 3, 2000--Decided October 30, 2000/*
Published February 14, 2001
Before BAUER, RIPPLE and WILLIAMS, Circuit Judges.
PER CURIAM. The court, on its own motion,
consolidates these two appeals for disposition.
Two cross-appeals (more appropriately cross-
petitions for review) challenge the legal fees
that the Benefits Review Board awarded in a black
lung benefits case; Zeigler Coal thinks that the
award is too high, and Griskell (the claimant)
thinks it is too low. The Director of the Office
of Workers’ Compensation Programs filed motions
to dismiss both petitions for review, arguing
that the fee award is not final and appealable.
Griskell agrees with the Director that both his
and Zeigler Coal’s petitions are premature;
Zeigler, too, agrees (though somewhat cautiously)
that the petitions are premature, and suggests
that we hold proceedings in abeyance. We, too,
agree that these petitions are premature.
It is telling that both Zeigler Coal and
Griskell filed petitions for review that they
called "protective." Neither is convinced that
the fee award is reviewable at this time. The
Director’s motion to dismiss sketches the
procedural history of this black lung case. The

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Benefits Review Board twice remanded Griskell’s
benefits claim to the Administrative Law Judge
for further consideration; the last remand
resulted in an award of benefits. The case came
to the Benefits Review Board for a third time,
but the case recently was remanded yet again to
the ALJ to re-evaluate the evidence relevant to
rebuttal. In the meantime, Griskell applied to
the Benefits Review Board for legal fees for work
on the case. The Board granted some, but not all,
of the requested fees. It is this fee award that
is the subject of both petitions for review.
As a general matter, an order regarding attorney
fees is not final and appealable until a final
judgment has been entered on the merits of the
case. Production & Maintenance Employees’ Local
504 v. Roadmaster Corp., 954 F.2d 1397, 1401 (7th
Cir. 1992). Jurisdictional rules such as this one
apply with equal force to black lung cases. See
Freeman United Coal Mining Co. v. Director, OWCP,
721 F.2d 629, 630 (7th Cir. 1983) ("We cannot
think of any reason for reading ’final order’ in
the LWHCA [Longshoremen’s and Harbor Workers’
Compensation Act] or black-lung act differently
[than the ordinary civil action on appeal from a
federal district court], and therefore join the
circuits that have held that the terms mean the
same thing.").
More to the point, this court commented in
Eifler v. Peabody Coal Co., 13 F.3d 236 (7th Cir.
1993), that it generally would not have
jurisdiction over an application for an award of
attorney fees if the benefits award has not
become final. Id. at 237-38. The court determined
that the benefits award in that case was not
final because it was still pending before the
Benefits Review Board. The court nevertheless
approved a fee settlement proposed by the parties
under the unique circumstances of the case,
noting that "there is nothing improper about the
timing of the settlement, even though we would
have no jurisdiction to award fees had there been
no settlement." Id. at 239. In short, this case
supports the Director’s argument that both
petitions be dismissed for want of jurisdiction.
Both petitions for review are dismissed because
they are premature. Zeigler’s motion to hold the
matters in abeyance is denied as moot.
FOOTNOTE
/* This opinion was initially issued as an
unpublished order.

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