Director, Office of Workmen's Compensation Program, U.S. Dept. of Labor v. Alabama By-Products Corp.

• Decision Date: 11 October 1977
• Docket Number: No. 76-2549,BY-PRODUCTS,76-2549
• Citation: 560 F.2d 710
• Parties: DIRECTOR, OFFICE OF WORKMEN'S COMPENSATION PROGRAM, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. ALABAMACORPORATION, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 710

560 F.2d 710

DIRECTOR, OFFICE OF WORKMEN'S COMPENSATION PROGRAM, UNITED

STATES DEPARTMENT OF LABOR, Petitioner, v. ALABAMA BY-PRODUCTS CORPORATION, Respondent.

No. 76-2549.

United States Court of Appeals, Fifth Circuit.

Oct. 11, 1977.

William J. Kilberg, Sol. of Labor, Jean S. Cooper, Atty., Laurie M. Streeter, Assoc. Sol., Frank A. White, Atty., U.S. Dept. of Labor, Washington, D. C., for petitioner.

R. Gordon Pate, Birmingham, Ala., Neal C. Newell, Fournier J. Gale, III, James L. Birchall, Birmingham, Ala., for respondent.

Petition for Review of an Order of the Benefits Review Board (Alabama Case).

Before GOLDBERG, SIMPSON and FAY, Circuit Judges.

GOLDBERG, Circuit Judge:

The Director, Office of Workers' Compensation Programs, United States Department of Labor, has taken this appeal seeking reversal of a decision and order of the Benefits Review Board, itself an adjudicative arm of the Department of Labor. The Board's decision vacated the decision and order of a hearing officer, Joseph Medicis, who had held that respondent Alabama By-Products Corporation was liable for the payment of black lung benefits to William Norman, a former coal miner, under Part C of Title IV of the Federal Coal Mine Health and Safety Act of 1969, P.L. 91-173, 83 Stat. 742, 91st Cong., 1st Sess. (1969), as amended by the Black Lung Benefits Act of 1972, P.L. 92-303, 86 Stat. 150, 92d Cong., 2d Sess. (1972), now codified at 30 U.S.C. § 901 et seq. (1970 ed. and Supp. V, 1975). The Benefits Review Board based its decision on the belief that because Medicis was not an administrative law judge appointed pursuant to 5 U.S.C. § 3105 he was not qualified to conduct black lung hearings.

The parties raise two issues on appeal, although we must as a threshold matter reach a third. The first issue, not placed in question by either party, is whether this court has subject matter jurisdiction. Second, we must decide whether the Director has standing to petition for review of a decision reached by the Benefits Review Board. Third, we must decide whether the labyrinthine statutory provisions implicated by this dispute permitted a hearing officer ¹ to conduct black lung hearings.

Like other circuit courts before us, we have struggled with the gordian knot Congress fashioned by cross-referencing the Federal Coal Mine Health and Safety Act of 1969 to the Longshoremen's and Harbor Workers' Compensation Act of 1927, Pub.L. 803, 69th Cong. (1927); amending the latter by the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, Pub.L. 92-576, 92d Cong., 2d Sess. (1972); amending the Federal Coal Mine Health and Safety Act by the Black Lung Benefits Act of 1972; further amending the Federal Coal Mine Health and Safety Act in four successive Department of Labor Appropriation Acts, Pub.L. 93-192, 87 Stat. 748; Pub.L. 93-517, 88 Stat. 163; Pub.L. 94-206, 90 Stat. 7; Pub.L. 94-439, 90 Stat. 1421; and, in the coup de grace, adding the "delphic pronouncement" of a Joint Resolution, Pub.L. 94-504, signed by the President on October 1, 1976. See Krolick Contracting Corp. v. Benefits Review Board, 558 F.2d 685, at 686 (3d Cir. 1977). Like other courts before us, we cut the knot in order to effectuate the important purposes of the Federal Coal Mine Health and Safety Act as amended by the Black Lung Benefits Act (FCMHSA as amended) to protect the health and safety of coal miners, to ensure that a miner suffering from black lung disease or his survivors will receive the benefits to which he is entitled, and most important to this appeal, to promote the prompt and vigorous processing of the large backlog of such claims that those entrusted with administering the program now confront. See H.R.Rep.No.91-563, 91st Cong., 1st Sess. (1969), reprinted in (1969) U.S.Code Cong. & Admin.News, p. 2503 (purpose of FCMHSA); S.Rep.No.92-743, 92d Cong., 2d Sess., reprinted in (1972) U.S.Code Cong. & Admin.News, pp. 2322-23 (purpose of Black Lung Benefits Act of 1972).

We conclude, as have our brothers in the Third, Fourth, Sixth, and Seventh Circuits that the Director has standing as a party before the court of appeals and that a hearing officer is qualified to adjudicate a claim for black lung benefits. Krolick Contracting Corp. v. Benefits Review Board, supra; Director v. National Mines Corp., 554 F.2d 1267 (4th Cir. 1977); Director v. Eastern Coal Corp., 561 F.2d 632 (6th Cir. 1977) (Slip. Nos. 76-1895, 1896, July 18, 1977); Director v. Peabody Coal Co., 554 F.2d 310 (7th Cir. 1977). Accordingly, we reverse the judgment of the Benefits Review Board.

I.

The FCMHSA as amended provides for the payment of benefits to coal miners who are totally disabled by pneumoconiosis (black lung disease) and to survivors of miners who died as a result of the disease or while totally disabled by it. The statutory scheme comprises three phases or periods of adjudication.

First period claims include those filed between December 30, 1969 and June 30, 1973. Unlike second and third period claims, first period claims are adjudicated and paid by the Secretary of Health, Education and Welfare. Pursuant to § 413(b) of Part B of the FCMHSA as amended, 30 U.S.C. § 923(b), the Secretary of HEW adjudicates claims in accordance with the procedures for determining disability insurance benefit payments set forth in § 221 of the Social Security Act, 42 U.S.C. § 421. No first period adjudications are involved in the case at bar.

Second period claims encompass those filed from July 1 to December 31, 1973. Section 415 of Part B, 30 U.S.C. § 925, establishes this six month duration as a transition period during which primary liability for black lung claims shifts from the federal treasury to the employer of the disabled or deceased miner, and primary responsibility for processing adjudicating claims shifts from HEW to the Department of Labor. If the claimant is entitled to black lung benefits, the employer becomes responsible for payment of benefits beginning on January 1, 1974. The United States is responsible for payment on these claims until December 31, 1973. See generally Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). The claimant in the case at bar filed on September 4, 1973, and thus falls within this second or transitional period. The hearing officer found the claimant entitled to benefits and ordered the United States to pay benefits accruing before January 1, 1974 and the respondent to pay all benefits accruing thereafter.

In all pertinent respects, other than the government's obligation for pre-1974 benefits, second period claims are treated as though they were third period claims. Although second period claims are adjudicated under § 415 of Part B, 30 U.S.C. § 925, the responsible employers are liable for benefits "as if the claim had been filed pursuant to part C of this subchapter and section 932 of this title had been applicable to such operator." 30 U.S.C. § 925(a)(5).

Third period adjudications are governed by Part C, 30 U.S.C. § 931-941. Beginning on January 1, 1974, all claims for benefits are, in the first instance, to be filed, processed, and paid under an approved state workmen's compensation law. If and only if the Secretary of Labor determines that the state has not provided adequate coverage, however, the Secretary shall adjudicate the claim and, if found liable, the employer shall pay it.

Procedures for hearings and a scheme for review were not made explicit, however, but were incorporated by reference to another statute. Section 422(a) of Part C, 30 U.S.C. § 932(a), provides that

the provisions of Public Law 803, 69th Congress (44 Stat. 1424, approved March 4, 1927), as amended (other than the provisions contained in sections 1, 2, 3, 4, 7, 8, 9, 10, 12, 13, 29, 30, 31, 32, 33, 37, 38, 41, 43, 44, 45, 46, 47, 48, 49, 50, and 51 thereof) shall (except as otherwise provided in this subsection and except as the Secretary shall by regulation otherwise provide) be applicable to each operator of coal mine in such State with respect to death or total disability due to pneumoconiosis arising out of employment in such mine.

The statutory reference to the Longshoremen's and Harbor Workers' Compensation Act of 1927, as amended in 1969, contained in the provisions applicable to both second and third period adjudications is of central importance to this case. ² Under § 19 of that statute, federal workers' compensation benefits were determined by a deputy commissioner in the Department of Labor. Section 21(b) provided for review of his determination in the United States District Court.

The 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA) made two critical changes. First, these amendments altered the review scheme by substituting for district court review a Benefits Review Board and by providing that the Board's decisions were reviewable in the United States Court of Appeals. Second, the 1972 amendments provided that initial hearings were to be conducted by administrative law judges qualified in accordance with the Administrative Procedure Act. ³

Both the text and the legislative history of the 1972 amendments to the LHWCA are silent regarding black lung benefits. Apparently the problem of the cross-reference in black lung legislation never occurred to anyone responsible for amending the LHWCA. The Congress evinced no greater awareness when in 1972 it amended the FCMHSA, since no mention is made of either the scheme for review or the requirement of administrative law judges. Nevertheless, the cross-reference remained. The problem was to understand what it now meant.

The muddle created by the cross-reference became apparent when, after the 1972 amendments to the LHWCA, the Secretary of Labor requested the United States Civil Service Commission to appoint administrative law judges to hear black lung cases. The resulting contretemps threatened the entire enterprise envisaged by the...