Patton v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, No. 84-3351

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtFrancis X. Lilly, Sol. of Labor, Donald S. Shire, Associate Sol.; Before ADAMS and WEIS, Circuit Judges, and POLLAK; LOUIS H. POLLAK; WEIS
Citation763 F.2d 553
PartiesEugene PATTON, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.
Docket NumberNo. 84-3351
Decision Date03 June 1985

Page 553

763 F.2d 553
54 USLW 2005
Eugene PATTON, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, Respondent.
No. 84-3351.
United States Court of Appeals,
Third Circuit.
Argued Jan. 16, 1985.
Decided June 3, 1985.

Page 554

Pasco L. Schiavo (Argued), Hazleton, Pa., for petitioner.

Francis X. Lilly, Sol. of Labor, Donald S. Shire, Associate Sol., J. Michael O'Neill, Counsel for Appellate Litigation, Mark Robson (Argued), U.S. Dept. of Labor, Washington, D.C., for respondent.

Before ADAMS and WEIS, Circuit Judges, and POLLAK, District Judge. *

OPINION OF THE COURT

LOUIS H. POLLAK, District Judge.

Petitioner Eugene Patton seeks review of an order of the United States Department of Labor Benefits Review Board ("the Board"), which dismissed as untimely his appeal from the adverse decision of an Administrative Law Judge on his application for benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901 et seq. The Board concluded that, because Mr. Patton's appeal was filed more than thirty days after the ALJ's decision was issued, the Board lacked jurisdiction over the appeal. See 30 U.S.C. Sec. 932(a); 33 U.S.C. Secs. 921(a), 919(e); Insurance Co. of North America v. Gee, 702 F.2d 411 (2d Cir.1983). Mr. Patton argues that his appeal was filed less than thirty days after his counsel received notice of the ALJ's decision, and is therefore timely. 1 See 20 C.F.R. Secs. 725.478, 725.364; Youghiogheny & Ohio Coal Co. v. Benefits Review Board, 745 F.2d 380, 382 (6th Cir.1984). For the reasons that follow, we reverse the Board's determination, and remand for consideration of Mr. Patton's appeal on the merits.

I

The facts are uncomplicated. In April 1978, Mr. Patton filed a claim for benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901 et seq. A hearing on Mr. Patton's claim was held before the ALJ on August 10, 1981. The ALJ issued his decision denying benefits on August 24, 1982; the decision and order was filed with the Deputy Commissioner on August 30, 1982. A copy of the ALJ's decision was sent to Mr. Patton; 2 however, no copy was sent to Mr. Patton's attorney. Instead, the attorney first learned that his client's claim had been denied during the course of a conversation with Mr. Patton in September 1983, more than one year after the ALJ's decision

Page 555

was issued. 3 Mr. Patton's attorney promptly contacted the ALJ, who mailed him a copy of the decision on September 28, 1983. 4 Mr. Patton's attorney filed an appeal with the Board on October 14, 1983--less than thirty days after the attorney received notice of the ALJ's decision, but more than thirteen months after that decision was issued and filed with the Deputy Commissioner. On April 16, 1984, the Board decided that "[b]ecause claimant's Notice of Appeal was not timely filed within thirty (30) days of the date on which the Decision and Order was filed, the Board does not have jurisdiction to consider this appeal." Patton v. Director, Office of Workers' Compensation Programs, BRB No. 83-2462 BLA, Order (April 16, 1984).

As a threshold matter, we must determine whether the thirty-day period for filing appeals is measured from the date the ALJ's decision is served on the parties according to the governing statutes and regulations. If service must be made before the thirty-day period may run, we must go on to consider whether the petitioner was properly served in conformity with the governing law.

Page 556

II

The starting point for our analysis is the incorporation provision of the Black Lung Benefits Act, 30 U.S.C. Sec. 932(a). With certain qualifications, that provision incorporates various sections of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Sec. 901 et seq., into the Black Lung Benefits Act. 5 Among the LHWCA provisions which are thereby applied to those claiming black lung benefits are 33 U.S.C. Secs. 921(a) and 919(e), which govern, respectively, the time in which an appeal must be taken from an ALJ's award or denial of benefits, and the notice of the ALJ's decision which must be provided to the parties. The provision establishing the time for appeal states simply:

A compensation order shall become effective when filed in the office of the deputy commissioner as provided in section 919 of this title, and, unless proceedings for the suspension or setting aside of such order are instituted as provided in subdivision (b) of this section, shall become final at the expiration of the thirtieth day thereafter.

33 U.S.C. Sec. 921(a). As the language makes clear, section 921(a) fixes a thirty-day time period within which an appeal of an adverse decision must be taken or lost. See Dawe v. Old Ben Coal Co., 754 F.2d 225, 227 (7th Cir.1985); Townsend v. Director, Office of Workers' Compensation Programs, 743 F.2d 880, 881 (11th Cir.1984); Trent Coal, Inc. v. Day, 739 F.2d 116, 117 (3d Cir.1984). The running of that period is triggered by the filing of the ALJ's decision "as provided in section 919." 33 U.S.C. Sec. 921(a); Trent Coal, supra, 739 F.2d at 117-18.

Subsection (e) of section 919 governs both the submission of the ALJ's decision to the deputy commissioner and the notice which must be provided to the parties. It states that "[t]he order rejecting the claim or making the award ... shall be filed in the office of the deputy commissioner, and a copy thereof shall be sent by registered mail or by certified mail to the claimant and to the employer at the last known address of each." 33 U.S.C. Sec. 919(e). Thus, section 921(a) requires, as a precondition for the running of the time period for perfecting an appeal, that the ALJ's order be filed "as provided in section 919," and the latter section provides that the order must be both (1) submitted to the deputy commissioner and (2) served on the parties. This statutory configuration strongly suggests that proper service is an essential part of the filing process, which in turn triggers the thirty-day period for appeal. The regulations which implement section 919(e) confirm this inference. Under the regulations, the ALJ is required to send copies of the decision and order to the parties' representatives "[o]n the same date" that the order is "considered to be filed." 20 C.F.R. Secs. 725.478; 725.364. 6

Page 557

The recent decision of the Court of Appeals for the Sixth Circuit in Youghiogheny & Ohio Coal Co. v. Benefits Review Board, 745 F.2d 380 (6th Cir. 1984), buttresses the conclusion that proper service is necessary to begin the running of the thirty-day appeal period. The petitioner in Youghiogheny & Ohio Coal Company received notice of a hearing officer's adverse decision almost four years after that decision was issued. Id. at 381. Eight days after receipt of the decision, the petitioner appealed to the Benefits Review Board, which held, as here, that it was without jurisdiction to hear the appeal. The Board initially argued that improper service of this sort did not operate to extend the time for filing an appeal. Id. at 381-82. In its brief before the Sixth Circuit, the Board reversed its position, and conceded that the thirty-day appeal period did not begin to run until the petitioner was served with a copy of the hearing officer's decision. Id. at 382. The court concluded that the Board's revised view of the governing law was the correct one. Id. 7

We agree with the Sixth Circuit's determination (and hence with the Board's position on appeal in Youghiogheny & Ohio Coal Company ). Our reading of sections 921(a) and 919(e) of title 33, and of the regulations enacted thereunder, leads us to find that service on the parties is meant to be an integral part of the process by which the ALJ's decisions are filed. We therefore hold that the thirty-day appeal period prescribed by section 921(a) does not begin to run until service is made according to the strictures of section 919(e) and the governing regulations. 8

III

Section 919(e) directs the ALJ to send copies of his decision by registered or certified mail "to the claimant and to the employer at the last known address of each." 33 U.S.C. Sec. 919(e). In implementing this provision, the Secretary of Labor has promulgated regulations which require such notice to be sent directly to the parties' counsel. The regulation governing service of compensation orders states that "[o]n the date of the issuance of a decision and order ... the administrative law judge shall serve the decision and order on all parties to the claim," 20 C.F.R. Sec. 725.478; a separate regulation provides that "[n]otice

Page 558

given to any party of any ... determination ... shall be sent to the representative of such party and such notice shall have the same force and effect as if it had been sent to the party represented." Id. Sec. 725.364.

The agency does not dispute that Mr. Patton's attorney did not, in fact, receive notice of the ALJ's decision until September 1983. 9 Nor is there any dispute about the relevant chronology after the attorney received a copy of the ALJ's decision: the appeal was filed on October 14, 1983, sixteen days after the ALJ's decision was sent to the attorney. Thus, to the extent that the quoted regulation is the measure of the agency's legal obligation in this case, Mr. Patton's appeal was filed within the thirty-day period prescribed by section 921(a) of title 33.

The agency comes before the court in the somewhat anomalous position of arguing that the quoted regulation, duly promulgated by the Secretary, is invalid. The regulation is said to be invalid on the ground that it is inconsistent with the statutory directive that notice be sent "to the claimant and to the employer." We disagree, both because (1) we find section 919(e) susceptible to alternative constructions, and (2) we find that the agency has the authority under the Black Lung Benefits Act to refine the procedural provisions of the LHWCA which the BLBA incorporates.

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17 practice notes
  • Beach v. Noble Drilling Corporation, BRB 94-3924
    • United States
    • Court of Appeals of Longshore Complaints
    • February 7, 1995
    ...Accord Youghiogheny & Ohio Coal Co. v. Benefits Review Board, 745 F.2d 380, 7 BLR 2-34 (6th Cir. 1984); see also Patton v. Director, OWCP, 763 F.2d 553, 7 BLR 2-216 (3d Cir. 1985) (proper service on counsel is required under 20 C.F.R. §§725.364 and 725.478 and 30-day appeal period is tolled......
  • White v. United States Dept. of Interior, Civ. No. 83-1360.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • January 29, 1986
    ...same terms as other litigants. Heckler v. Community Health Services, supra; Patton v. Director, Office of Workers' Compensation Programs, 763 F.2d 553 (3d Cir. 1985) (Weis, J., dissenting) (estoppel may not often be invoked successfully against the Government). At a minimum, plaintiffs must......
  • Amax Coal Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, No. 89-1144
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 26, 1989
    ...of the Secretary...."). See Jeffboat, Inc. v. Mann, 875 F.2d 660, 664 (7th Cir.1989); Patton v. Director, Office of W.C. Prog. Etc., 763 F.2d 553, 559-60 (3d 3 Regulation § 725.456(e) provides If, during the course of a hearing, it is determined by the administrative law judge that the docu......
  • Big Horn Coal Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, No. 93-9542
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 24, 1995
    ..."); Jewell Smokeless Coal Corp. v. Looney, 892 F.2d 366, 369 (4th Cir.1989); Patton v. Director, Office of Workers' Compensation Programs, 763 F.2d 553, 557 (3d Cir.1985); see also Old Ben Coal Co. v. Jones, 897 F.2d 900, 902 (7th Cir.1990) (requiring service as a component of filing, but r......
  • Request a trial to view additional results
17 cases
  • Beach v. Noble Drilling Corporation, BRB 94-3924
    • United States
    • Court of Appeals of Longshore Complaints
    • February 7, 1995
    ...Accord Youghiogheny & Ohio Coal Co. v. Benefits Review Board, 745 F.2d 380, 7 BLR 2-34 (6th Cir. 1984); see also Patton v. Director, OWCP, 763 F.2d 553, 7 BLR 2-216 (3d Cir. 1985) (proper service on counsel is required under 20 C.F.R. §§725.364 and 725.478 and 30-day appeal period is tolled......
  • White v. United States Dept. of Interior, Civ. No. 83-1360.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • January 29, 1986
    ...same terms as other litigants. Heckler v. Community Health Services, supra; Patton v. Director, Office of Workers' Compensation Programs, 763 F.2d 553 (3d Cir. 1985) (Weis, J., dissenting) (estoppel may not often be invoked successfully against the Government). At a minimum, plaintiffs must......
  • Amax Coal Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, No. 89-1144
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 26, 1989
    ...of the Secretary...."). See Jeffboat, Inc. v. Mann, 875 F.2d 660, 664 (7th Cir.1989); Patton v. Director, Office of W.C. Prog. Etc., 763 F.2d 553, 559-60 (3d 3 Regulation § 725.456(e) provides If, during the course of a hearing, it is determined by the administrative law judge that the docu......
  • Big Horn Coal Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, No. 93-9542
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 24, 1995
    ..."); Jewell Smokeless Coal Corp. v. Looney, 892 F.2d 366, 369 (4th Cir.1989); Patton v. Director, Office of Workers' Compensation Programs, 763 F.2d 553, 557 (3d Cir.1985); see also Old Ben Coal Co. v. Jones, 897 F.2d 900, 902 (7th Cir.1990) (requiring service as a component of filing, but r......
  • Request a trial to view additional results

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