Adams and Weis, Circuit Judges, and Pollak, District Judge*fn*
On Petition for Review from the Order of the Benefits Review Board dated April 16, 1984 (BRB No. 83-2462 BLA).
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. § 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. § 932(a); 33 U.S.C. §§ 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.*fn1 See 20 C.F.R. §§ 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.
The facts are uncomplicated. In April 1978, Mr. Patton filed a claim for benefits under the Black Lung Benefits Act, 30 U.S.C. § 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;*fn2 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 was issued.*fn3 Mr. Patton's attorney promptly contacted the ALJ, who mailed him a copy of the decision on September 28, 1983.*fn4 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 "because 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.
The starting point for our analysis is the incorporation provision of the Black Lung Benefits Act, 30 U.S.C. § 932(a). With certain qualifications, that provision incorporates various sections of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq., into the Black Lung Benefits Act.*fn5 Among the LHWCA provisions which are thereby applied to those claiming black lung benefits are 33 U.S.C. §§ 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. § 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. § 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. § 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 "on the same date" that the order is "considered to be filed." 20 C.F.R. §§ 725.478; 725.364.*fn6
The court decision of the Court of Appeals for the Sixth Circuit in Youghiogheny & Ohio Coal Co. v. Benefits Review Board, 745 F.2d 380 (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 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 ...