argued as amended august 10 1977.: March 31, 1977.
ON PETITION FOR REVIEW OF DECISION AND ORDER OF THE BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR.
Van Dusen, Gibbons and Garth, Circuit Judges.
This is a petition for review of a decision and order of the Benefits Review Board, United States Department of Labor. That decision affirmed an award of benefits to Henning B. Klang, 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). 30 U.S.C. § 901 et seq. (1970 & Supp. V 1975). The petitioners are Krolick Contracting Corporation and its insurer. The named respondents are the Benefits Review Board and the Director, Office of Workers' Compensation Programs, United States Department of Labor.*fn1
The petitioners do not dispute the hearing officer's finding that the claimant is totally disabled from pneumoconiosis. Rather, we are tendered a number of jurisdictional and procedural issues which result from the statutory muddle Congress created by the cross-reference in the Federal Coal Mine Health and Safety Act of 1969 to the Longshoremen's and Harbor Workers' Compensation Act of 1927, P.L. 803, 69th Cong. (1927), the amendments of the latter by the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, P.L. 92-576, 92d Cong., 2d Sess. (1972), the amendments of the former by the Black Lung Benefits Act of 1972, supra, the further amendment of the former in four successive Department of Labor Appropriation Acts. P.L. 93-192, 87 Stat. 748; P.L. 93-517, 88 Stat. 1636; P.L. 94-206, 90 Stat. 7; P.L. 94-439, 90 Stat. 1421; and the delphic pronouncement of a Joint Resolution, P.L. 94-504,, 90 Stat. 2428; signed by the President on October 1, 1976. Taken together, these statutes demonstrate nothing so much as Congressional ignorance of the problems its legislation engendered. In a tour de force demonstrating both scholarship and ingenuity, Judge Pell has produced the best effort at reconciliation to date. Director, Office of Workers' Compensation Programs v. Peabody Coal Company et al., 554 F.2d 310 (7th Cir. 1977). That opinion addresses each of the issues tendered here, and on each we adopt the solution which the Seventh Circuit reached. We are convinced that we can add nothing to Judge Pell's effort. Moreover, even if we could the desirability of bringing an end to jurisdictional and procedural uncertainties which are currently thwarting the implementation of Part C of Title IV suggests strongly that we resolve those uncertainties as he did.
Under Part C of Title IV of the 1969 Federal Coal Mine Health and Safety Act, as amended, coal mine operators are liable for benefits after January 1, 1974 and prior to December 30, 1981. Claims filed after December 31, 1973 are to be processed under an applicable state Workmens' compensation law. If no state program is approved, and none has been, § 422(a), 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 cross-reference is to the Longshoremen's and Harbor Workers' Compensation Act of 1927, as amended to 1969, with certain of its provisions excluded. 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. There is no hint in the legislative history of the 1969 Black Lung Act that any other scheme of adjudication and review was intended.
The 1972 amendments to the Longshoremen's and Harbor Workers' Act changed the review scheme by substituting for district court review a Benefits Review Board, and by providing that its decisions were reviewable in the United States Court of Appeals.*fn2 Both the text and the Legislative History of the 1972 Amendments are silent as to Black Lung benefits. It appears that the problem of the cross-reference in Black Lung legislation never occurred to anyone responsible for the Longshoremen's Act. Congress also amended the Black Lung legislation in 1972, but the Black Lung Benefits Act of 1972 does not address the question of review by the Benefits Review Board and the Court of Appeals.
After the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act, the Secretary of Labor requested the United States Civil Service Commission to appoint administrative law judges to hear Black Lung cases. The Commission, however, took the position that § 422(a) of the 1969 Act was a specific reference to the LHWCA of 1927 as it appeared in 1969. The Commission's position was that as then written, qualified administrative law judges were not required under the LHWCA, and that the old hearing and review scheme still applied to Black Lung cases. In taking this position, the Commission relied on a settled federal rule of statutory construction that an adopting statute takes an adopted statute as it exists at the time of adoption, not as later amended. Hassett v. Welch, 303 U.S. 303, 314, 82 L. Ed. 858, 58 S. Ct. 559 (1938); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 624, 9 L. Ed. 1181 (1838). The Labor Department did not agree, but in order to get the Part C program off the ground it eventually promulgated regulations, 20 C.F.R. §§ 715.101(a)(27) and 725.402(c) (1975), defining "administrative law judges" as "hearing officers." The regulation permitted hearing examiners not qualified under the Administrative Procedure Act to hear claims, but assumed that review would be to the Benefits Review Board and the Court of Appeals. One such claim was so processed, and in James E. Fields v. AKP Coal Company, BRB No. 75-155 BLA (Benefits Review Board 1976), the Benefits Review Board, disagreeing with the Civil Service Commission, not only assumed that it had jurisdiction, but held that in Black Lung cases, as in Longshoremen's cases, there must be a qualified administrative law judge. The petitioners assert that the Board lacked jurisdiction to make such a holding, since under the Board's interpretation of the 1969 law, review of a hearing officer's decision in a Black Lung case lies in the district courts.
In the instant case the determination of disability was made, as in James E. Fields v. AKP Coal Company, supra, by a hearing officer who was not an APA-qualified Administrative Law Judge. The employer respondents, relying on Fields, but recognizing that both the Benefits Review Board and the Secretary assumed that review was to the Board and from it to this Court, petitioned to the Board to set aside the order in favor of the claimant. The Board relying on United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 97 L. Ed. 54, 73 S. Ct. 67 (1952), held that their failure to object to the qualifications of the hearing officer before he heard the case was a waiver of the Fields defect. The Board affirmed the award.
We will not consider the correctness of the waiver determination, however, until we first decide our own subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(2); Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 740, 47 L. Ed. 2d 435, 96 S. Ct. 1202 (1976). That, of course, depends on whether, as the Civil Service Commission contends, the 1969 Black Lung legislation incorporated the review scheme of the Longshoremen's and Harbor Workers' Compensation Act statically, and there has been no subsequent legislative change. If the rule of statutory ...