Petition for Review of the Orders of the Benefits Review Board.
Weis and Becker, Circuit Judges, and Ackerman, District Judge.*fn*
The Benefits Review Board rejected as untimely an employer's appeal from an ALJ's award of Black Lung benefits. Interpreting a regulation promulgated by the Secretary of Labor, the Board determined that the appeal period began to run on the day the ALJ issued his order, rather than when it was filed with the deputy commissioner. Finding the Board's construction of the regulation in conflict with the statute, we reverse and direct reinstatement of the appeal.
The ALJ issued his decision awarding benefits on April 11, 1983. On that same day he sent a copy of his order and decision to the deputy commissioner's office which received the documents on April 13, 1983. On May 12, 1983, the employer filed its appeal from the ALJ's order.
The Board concluded that it had no jurisdiction because the "appeal was not timely filed within thirty days of the date in which the administrative law judge's Decision and Order was issued." On the employer's motion for reconsideration, one of the Board members dissented and would have reinstated the appeal.
At issue in this court is section 932(h) of the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., which incorporates the provisions of the Longshoremen's and Harbor Workers' Act, 33 U.S.C. § 901 et seq., governing appeals from ALJs. Section 21 of the Longshoremen's Act provides that a compensation order "shall become effective when filed in the office of the deputy commissioner . . . and unless proceedings [are taken] for the . . . setting aside of such order . . . [it] shall become final at the expiration of the thirtieth day thereafter." 33 U.S.C. § 921(a).
With the increasing volume of Black Lung claims, the Secretary found that for administrative purposes it was desirable to file the original record in those cases with the Division of Coal Mine Workers Compensation rather than the deputy commissioner. To that end, a new "housekeeping" regulation was promulgated. It provided that the ALJ was to serve the decision and order on all parties by mail, and
"On the same date, the original record of the claim shall be returned to the [Division of Coal Mine Workers Compensation] in Washington, D.C. and the decision and order shall be considered to be filed in the Office of the Deputy Commissioner. Immediately upon receipt of a decision and order awarding benefits, the deputy commissioner shall compute the amount of benefits due."
20 C.F.R. § 725.478 (1980).
Although the statute unambiguously provides that the appeal period begins to run when the order is filed with the deputy commissioner, the regulation is less precise. It is apparent that the deputy commissioner was to continue to receive the decision and order as before but that the original record was to be sent to Washington. The Board seemingly read the regulation to mean that the decision and order were deemed to be filed with the deputy commissioner "on the same date" the record was returned to Washington.
The Board's interpretation is patently inconsistent not only with the statute but with another regulation as well. That regulation provides:
"A decision and order shall become effective when filed in the office of the deputy commissioner (see § 725.478) and unless proceedings for suspension or setting aside of such order are instituted within 30 days of such filing, the order shall be ...