Title Elliot Coal Mining Co., Inc. v. Dir., Office of Workers' Compensation Programs
Date 1992
By Per Curiam
Subject Other\Per Curiam
Contents
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15 of 15 DOCUMENTS
ELLIOT COAL MINING COMPANY, INC., Petitioner v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR, Respondent METRO KOVALCHICK, Respondent
No. 91-3370
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
956 F.2d 448; 1992 U.S. App. LEXIS 1643
January 28, 1992, Submitted
February 12, 1992, Filed
PRIOR HISTORY: **1 On Petition for Review of a Decision and Order of the Benefits Review Board. (Board No. 81-BLA--7807)
CASE SUMMARY:
PROCEDURAL POSTURE: Petitioner employer sought review of a decision and order of respondent Benefits Review Board, which found that petitioner was a responsible operator under 30 U.S.C.S. § 802(d) as to respondent employee's claim for medical benefits under the Black Lung Benefits Act. Respondent Director, Office of Workers' Compensation Programs, requested that the court dismiss the petition for review for lack of jurisdic- tion.
OVERVIEW: Respondent employee filed a claim for benefits under the Black Lung Benefits Act (Act), 30
U.S.C.S. § 901. After an administrative law judge (ALJ)
found that petitioner was not a responsible operator under
30 U.S.C.S. § 802(d), respondent Benefits Review Board
(board) reversed and remanded the case for consideration on the merits. The ALJ then entered a decision and or- der. Petitioner appealed the decision and order to respon- dent board and filed with the court a petition for review. Respondent Director, Office of Workers' Compensation Programs, requested that the court dismiss the petition for lack of jurisdiction. On appeal the court stated that the authority to review administrative decisions under the Act stemmed from 33 U.S.C.S. § 921(c), as incorporated by
30 U.S.C.S. § 932(a), which allowed the court to review a final order of respondent board. The court held that §
921(c), did not grant the court jurisdiction to review an order of an administrative law judge upon which respon- dent board had not yet passed. The court dismissed the petition for review as interlocutory because respondent board had not yet issued a final order.
OUTCOME: The court dismissed petitioner employer's petition for review as interlocutory. The court held that the statute which allowed the court to review a final order of Benefits Review Board did not grant the court jurisdiction to review an order of an administrative law judge upon which the Benefits Review Board had not yet passed.
LexisNexis(R) Headnotes
Workers' Compensation & SSDI > Black Lung Claims
> Administrative Proceedings
HN1 33 U.S.C.S. § 921(c), incorporated by 30 U.S.C.S.
§ 932(a), allows any person adversely affected or ag- grieved by a final order of the Benefits Review Board to petition for review by a federal court of appeals. There is no statutory authority under the Black Lung Benefits Act for review by a federal court of appeals of an order of an Administrative Law Judge.
Workers' Compensation & SSDI > Black Lung Claims
> Administrative Proceedings
HN2 The authority of the court to review administra- tive decisions under the Black Lung Benefits Act, stems from 33 U.S.C.S. § 921(c), as incorporated by 30 U.S.C.S.
§ 932(a), which allows the court to review a final order of the Benefits Review Board. That provision is jurisdic- tional. The court may not expand its own jurisdiction on the ground that to do so would be expeditious.
Workers' Compensation & SSDI > Administrative
Proceedings > Judicial Review
HN3 33 U.S.C.S. § 921(c), which allows the court to review a final order of the Benefits Review Board, does not grant the court jurisdiction to review an order of an administrative law judge upon which the Benefits Review Board has not yet passed.
COUNSEL: STEPHEN YAKOPEC, JR., ESQUIRE,
956 F.2d 448, *; 1992 U.S. App. LEXIS 1643, **1
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Buchanan Ingersoll, Professional Corporation, 600 Grant Street, 56th Floor, Pittsburgh, Pennsylvania 15219, Attorney for Petitioner
KAREN N. BLANK, ESQUIRE, MICHAEL J. DENNEY, ESQUIRE, United States Department of Labor, Office of the Solicitor, Suite N-2605, 200
Constitution Avenue, N.W., Washington, D.C. 20210, Attorneys for Respondent, Director, Office of Workers' Compensation Programs
JUDGES: Before: STAPLETON, SCIRICA and ALITO, Circuit Judges
OPINIONBY: PER CURIAM
OPINION:
*449 OPINION OF THE COURT
PER CURIAM.
In 1978, Respondent Kovalchick filed a claim for medical benefits under Part C of the Black Lung Benefits Act, 30 U.S.C. § 901 (1978). Petitioner Elliot Coal Mining Company ("Petitioner") contested both Kovalchick's en- titlement to benefits and Respondent Director's identifi- cation of Petitioner as a responsible operator under 30
U.S.C. § 802(d) (1977). n1
n1 On September 10, 1990, Petitioner filed a stipulation acknowledging that Kovalchick was totally disabled as a result of pneumoconiosis. Petitioner still contends, however, that it is not a responsible operator as defined by the applicable statute and regulations.
**2
On October 24, 1984, an Administrative Law Judge issued a decision and order finding that Petitioner was not a responsible operator. On June 30, 1988, the Benefits Review Board issued a decision and order reversing the ALJ's finding on the responsible operator issue and re- manding the case for consideration on the merits of Kovalchick's entitlement to benefits. Petitioner sought re- view of the Board's decision of June 30, 1988, and the petition for review was dismissed by this court on May
19, 1989.
The ALJ entered a decision and order on remand on January 28, 1991. The ALJ amended its decision and order on May 6, 1991, and again on May 14, 1991. Petitioner appealed the ALJ's decision and order to the Benefits Review Board on June 12, 1991. On June 13, 1991, Petitioner filed with this court a "Petition for Review
To Set Aside Amended Decision or in the Alternative Petition To Reopen Previous Petition for Review." On July 1, 1991, Respondent Director moved this court to dismiss the instant petition for review for lack of jurisdic- tion.
HN1 Title 33 U.S.C. § 921(c), incorporated by 30
U.S.C. § 932(a), allows "any person adversely affected or aggrieved by a final order of the Benefits Review
**3 Board" to petition for review by a federal court of appeals. There is no statutory authority under the Black Lung Benefits Act for review by a federal court of appeals of an order of an Administrative Law Judge.
Petitioner, citing National Steel & Shipbuilding v. Director, OWCP, 703 F.2d 417 (9th Cir. 1983), asks us to accept jurisdiction. In that case, the United States Court of Appeals for the Ninth Circuit accepted jurisdiction over an employer's appeal from an ALJ's decision on remand on the ground that an appeal to the Benefits Review Board would have been futile, because the Board was bound by its prior decision as law of the case.
National Steel is distinguishable, however. In that case, the Court of Appeals stated:
When National Steel filed its current petition for review, the time for further review before the BRB had passed and neither side had appealed to the Board. The threat of confusion from concurrent jurisdiction no longer exists. We therefore hold that the ruling of the Board on
claimant's permanent loss of vision is final and that we have jurisdiction over this petition.
703 F.2d at 418-19 (footnotes and citations omitted).
**4 In the instant case, the employer did appeal to the Benefits Review Board (on the day before it filed the in- stant petition for review). In this case, therefore, there is a "threat of confusion from concurrent jurisdiction." Moreover, the Court of Appeals for the Ninth Circuit
went on to note:
We do not wish our holding to be interpreted as preclud- ing an appeal to the Board under the circumstances of this case, before appealing to this court. Indeed, counsel in cases like this one would be well advised to appeal again to the Board and only then to petition for review in this court. See Sun Shipbuilding & Dry Dock Co. v. Benefits Review Board, 535 F.2d 758, 760 n.10 (3d Cir.
1976) (per curiam) .
703 F.2d at 419 n.3 (emphasis in original). We agree that this is the proper procedure.
956 F.2d 448, *450; 1992 U.S. App. LEXIS 1643, **4
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*450 Even if National Steel were not distinguishable, we would decline to follow it. As noted above, HN2 the authority of this court to review administrative deci- sions under the Black Lung Benefits Act stems from 33
U.S.C. § 921(c), as incorporated by 30 U.S.C. § 932(a), which allows this court to review a "final order of the Board." Sun Shipbuilding, 535 F.2d at 760. **5 That provision is jurisdictional. Shendock v. Director, OWCP,
893 F.2d 1458 (3d Cir. 1990). This court may not expand its own jurisdiction on the ground that to do so would be
expeditious.
We hold that HN3 33 U.S.C. § 921(c), which allows this court to review a "final order of the Board," does not grant this court jurisdiction to review an order of an ad- ministrative law judge upon which the Board has not yet passed. Because the Board has not yet issued a final order in this case, the petition for review is hereby dismissed as interlocutory.
Costs taxed in favor of the Board.
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