The opinion of the court was delivered by: MILLER
In September of 1973 Boyd A. Shaffer filed a claim for Black Lung benefits pursuant to Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 901 et seq. (Supp. V, 1975) (Coal Act). Because Barnes and Tucker Company (Company) controverted its liability for paying said benefits an administrative hearing was held on January 9, 1975 at which time the parties to this action were present with counsel along with Shaffer and his counsel. We need not go into the facts adduced at that hearing. Suffice it to say that the Hearing Officer issued a decision granting Shaffer compensation for total disability due to pneumoconiosis. That decision, supported by factual findings and legal conclusions favorable to Shaffer, resulted in an order, dated April 2, 1975, that may be summarized as follows:
1) The Secretary of Labor (Secretary) is to pay Shaffer a lump sum benefit for the last four months of 1973 less any prior payments, but with 6% interest from the date due to the date paid;
2) The Barnes and Tucker Company (Company) is to pay benefits after January 1, 1974 with the amount then due (i.e., on April 2, 1975) to be paid in a lump sum computed with interest to the date of payment, providing that, if the Secretary made payments after December 31, 1973 Barnes and Tucker is to reimburse the Secretary an amount equal to said payments with interest; and
3) Barnes and Tucker is to furnish Shaffer with medical treatment and related services pertinent to his disability.
On April 11, 1975 Edmond J. F. Fitzpatrick, Deputy Commissioner of the Department of Labor, filed and served the above mentioned decision and order [20 C.F.R. § 720.289 (1976)]. Pursuant to a request by the Deputy Commissioner the Hearing Officer amended that order on May 5, 1975 so as to delete any reference to interest in paragraph No. 1 summarized above. On May 21, 1975 the Deputy Commissioner again filed and served the decision and order of April 2, 1975, as amended. Barnes and Tucker did not appeal the Hearing Officer's decision and order to the Benefits Review Board as provided under the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 921(a) and (b) (Supp. V, 1975) (Longshoremen's Act); nor has it ever paid to the Secretary the amount deemed payable under the reimbursement provision of paragraph No. 2 of the order or otherwise complied therewith. These are undisputed facts.
The Company's inaction prompted this lawsuit by the Secretary who seeks to enforce the compensation order against the defendant. This suit is authorized by section 21(d) of the Longshoremen's Act, as amended, 33 U.S.C. § 921(d) (Supp. V, 1975), as incorporated by § 422(a) of the Coal Act, as amended, 30 U.S.C. § 932(a) (Supp. V, 1975). The Secretary prays for an order enjoining defendant from failing and refusing to comply with the administrative decision and order; plaintiff also seeks reimbursement for the sums the Department of Labor has paid to Shaffer on the Company's account, with interest as accrued.
The case is before the Court on the Secretary's Motion for Summary Judgment. There being no material issue of fact in dispute we find that plaintiff is entitled to judgment as a matter of law pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons expressed below we shall grant the motion.
The Company defends this suit, and resists the instant motion, on two grounds which may be summarized as follows: First defendant contends that it is not an "operator" within the meaning of the Coal Act, 30 U.S.C. § 802; therefore, it is urged that (a) the regulation [20 C.F.R. § 725.302 (1976)] upon which that determination was based is a nullity, and/or (b) the manner in which that regulation was applied imposed liability without due process of law.
Secondly defendant contends that Shaffer's claim was barred by the limitations period found in § 422(f)(2) of the Coal Act. 30 U.S.C. § 932(f)(2) (Supp. V, 1975); therefore, since the Hearing Officer had no jurisdiction to hear the claim the Decision and Order of April 2, 1975 is null and void and, hence, unenforceable.
The pivotal question we must answer is whether the Company can raise these questions in an enforcement proceeding. We begin our discussion with these observations. The question of whether the Company is an "operator" under the Coal Act and relevant regulations was raised and decided against the Company at the administrative level. See Decision and Order at pp. 11-14, attached to the Complaint. Also the question of whether section 422(f)(2) of the Coal Act barred the claim as untimely filed was resolved in claimant's favor. Id. at pp. 8-11.
The Longshoremen's Act provides that a compensation order becomes effective when filed in the office of the Deputy Commissioner and, unless action is taken to set it aside, the order becomes final after thirty days. 33 U.S.C. § 921(a) (Supp. V, 1975). Before the 1972 amendments to this statute, a compensation order could be suspended or set aside through injunction proceedings in the appropriate district court. 33 U.S.C. § 921(b) (1970).
However, after the amendments, jurisdiction to review these orders became vested solely in the newly created Benefits Review Board (Board) which is "authorized to hear and determine appeals raising a substantial question of law or fact" which bears on the merits of a claim asserted under the Longshoremen's Act. 33 U.S.C. § 921(b)(3) (Supp. V, 1975). Not only did Congress remove review of these compensation orders in the first instance from the district courts, it was no doubt the legislative intent to completely oust such jurisdiction from the district courts. For as subsection (c) states: