Before: Cowen, McKEE & Rosenn, Circuit Judges
The opinion of the court was delivered by: McKEE, Circuit Judge
On Appeal From the Benefits Review Board, United States Department of Labor 93-1600
We are asked to determine if the delay of the Board of Revision and Review in reviewing a decision of an administrative law Judge deprived the Board of jurisdiction under the facts of this appeal. We hold that it did, and that the Board's delay caused the ALJ's decision to become a final order that we now have jurisdiction to review. We further hold that the ALJ erred in deciding that a maritime employer is entitled to relief from the Special Fund established under § 8(f) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq. ("LHWCA") ("the Act"), where the employee's disability was not manifest during the time of his employment. Accordingly, we will reverse the decision of the ALJ.
Raymound Ehrentraut worked for Sun Ship, Inc. from 1938 until his retirement in 1981. Nine years after he retired he was diagnosed with asbestosis resulting from his years of work-related asbestos exposure while at Sun Ship. The same month he was diagnosed, doctors discovered he also had a work-related pulmonary malignancy. Ehrentraut's asbestosis was a "pre-existing condition" that had made diagnosis of the malignancy more difficult. Ehrentraut eventually succumbed to the cancer and died on July 15, 1990. Thereafter, his wife applied to Sun Ship for death benefits under the Longshore and Harbor Workers' Compensation Act.*fn1
Sun Ship initially paid the requested benefits. However, in 1992, after paying benefits for 104 weeks, Sun Ship requested the Office of Workers' Compensation Programs to provide the payments from the Special Fund established under section 8(f) of the Act, 33 U.S.C. § 908(f). The Director of the Office of Workers' Compensation Programs denied Sun Ship's application. The Director concluded that Sun Ship was not eligible for relief from the Special Fund because Ehrentraut's pre-existing injury was not manifest while he worked for Sun Ship. However, the case was referred to an administrative law Judge who overruled the Director's decision. On April 15, 1993, the ALJ issued an opinion declaring that Sun Ship was entitled to section 8(f) relief under the 1984 amendments to the Act because Ehrentraut's pre-existing condition was a long-latency disease diagnosed after Ehrentraut's retirement. See ALJ at
The Director filed a timely appeal to the Benefits Review Board on May 13, 1993. However, the Board failed to adjudicate the appeal for more than three years. Finally, on September 12, 1996, the Board issued an order in which it reversed the ALJ's ruling and remanded the case back to the ALJ for further proceedings. The Director filed a Petition for Review seeking a judicial determination that the ALJ's order had become the final decision of the Board because the Board had not acted within the required time frame. The Director's petition asks us to reverse the ALJ's decision and hold that Sun Ship is not entitled to shift the responsibility for these benefits to the Special Fund.
We exercise plenary review over both the jurisdictional issue and the substantive issue raised by this appeal because both present questions of law. Director, Office of Workers' Compensation v. Barnes and Tucker Co., 969 F.2d 1524, 1527 (3d Cir. 1992); cf. Sea-Land Service, Inc. v. Rock, 953 F.2d 56, 59 (3d Cir. 1992). Before addressing the substance of the Director's petition, we must first resolve the issue of our jurisdiction.
For the reasons that follow, we conclude that we have jurisdiction to review the ALJ's decision as the Board's final order. We hold that the ALJ erred in concluding that Sun Ship is entitled to shift liability to the Special Fund that Congress created under section 8(f) of the Act.
Ordinarily, the Board's remand to the ALJ would be an interlocutory order and we would therefore have no jurisdiction to review it. However, the Department of Labor Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (the "Appropriations Act") provides that any ALJ decision in a LHWCA case that has been
pending a review by the Benefits Review Board for more than one year shall, if not acted upon by the Board before September 12, 1996, be considered affirmed by the Benefits Review Board on that date, and shall be considered the final order of the Board for purposes of obtaining a review in the United States courts of appeals.
100 Stat. 1321-219 (emphasis added). Here, the Board issued its order on September 12, 1996. Sun Ship argues that is consistent with the requirements of the Appropriations Act. The Director responds that "before"
does not mean "on" and that the Board's September 12, 1996 decision is therefore a nullity.
It is axiomatic that our interpretation of any statute begins with the language of the statute. Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). If the language is ambiguous, we look to legislative history to determine congressional intent. Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 642 (1990). In addition, we will sometimes defer to a permissible interpretation of a statute by an appropriate agency. However, we will do so only when the statute does not directly speak to the issue and congressional intent cannot be gleaned from the text of the statute, or its legislative history. Only then, should the "question for the court [become] whether the agency's answer is based on a permissible construction of the statute." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 ...