                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     MAY 7 1998
                                  PUBLISH
                                                                   PATRICK FISHER
               UNITED STATES COURT OF APPEALS                             Clerk
                        TENTH CIRCUIT


 JANET M. BROYLES, Widow
 of Earl Broyles,

       Petitioner,

 v.
                                                     No. 97-9559
 DIRECTOR, OFFICE OF WORKERS’
 COMPENSATION PROGRAMS,
 UNITED STATES DEPARTMENT
 OF LABOR,

       Respondent.


       Appeal from the United States Department of Labor (except OSHA)
                              (No. 96-0765 BLA)


Jeffrey B. Diamond, Carlsbad, New Mexico, for Petitioner.

Marvin Krislov, Deputy Solicitor for National Operations, Donald S. Shire,
Associate Solicitor for Black Lung Benefits, Christian P. Barber, Counsel for
Appellate Litigation, and Edward Waldman, Attorney, U. S. Department of Labor,
Washington, D.C., for Respondent.


Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.


SEYMOUR, Chief Judge.
      Janet Broyles, the widow of a coal miner, filed a claim for survivor’s

benefits under the Black Lung Benefits Act. After her claim was administratively

denied, she received a hearing before an Administrative Law Judge, who issued an

order denying benefits. Mrs. Broyles appealed that decision to the Benefits

Review Board, which affirmed the denial and denied her motion for

reconsideration. Mrs. Broyles then timely petitioned this court for review. The

federal respondent filed a motion to transfer the petition to the United States Court

of Appeals for the Seventh Circuit, asserting that this court lacks jurisdiction over

the subject matter presented for review. We agree and accordingly transfer this

case to the Seventh Circuit. 1

      Judicial review of final decisions of the Benefits Review Board is governed

by section 422(a) of the Black Lung Benefits Act, 30 U.S.C. § 932(a), which

incorporates section 21(c) of the Longshore and Harbor Workers’ Compensation

Act, 33 U.S.C. § 921(c). That statute provides in pertinent part that “[a]ny person

adversely affected or aggrieved by a final order of the [Benefits Review Board]

may obtain a review of that order in the United States court of appeals for the

circuit in which the injury occurred.” Id. This provision has consistently been



       After examining the briefs and appellate record, this panel has determined
       1

unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.


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held to be jurisdictional in nature. See Bernardo v. Director, OWCP, 772 F.2d

576, 577 n.1 (9th Cir. 1985) (citing cases).

      Every circuit considering the matter has consistently held that “jurisdiction

is appropriate only in the circuit where the miner’s coal mine employment, and

consequently his harmful exposure to coal dust, occurred.” Kopp v. Director,

OWCP, 877 F.2d 307, 309 (4th Cir. 1989) (citing cases). Courts have rejected the

argument that the injury occurs where the disease manifests itself rather than the

place of exposure to coal dust. See, e.g., Danko v. Director, OWCP, 846 F.2d 366,

368 (6th Cir. 1988); Bernardo, 772 F.2d at 577-78. As the court in Bernardo

pointed out, because determining the place of manifestation in black lung cases is

difficult and prone to dispute, basing jurisdiction on manifestation rather than the

place of exposure would generate factual disputes and ultimately frustrate a swift

resolution of these cases on their merits. Id. at 778.

      It is undisputed that Mr. Broyles’ only exposure to coal dust occurred in the

Seventh Circuit. Mrs. Broyles contends that jurisdiction is nonetheless proper in

this circuit because her husband lived here for a lengthy period before his death,

received all of his medical treatment here, and died here. This argument is in

essence a variation of the contention that injury occurs when the disease manifests

itself. We agree with the unanimous rulings of our sister circuits rejecting this

assertion and adopting the “sensible rule” that jurisdiction is appropriate in the


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circuit where exposure occurred. Id.

      Mrs. Broyles also asserts that the place of exposure is irrelevant to her claim

for survivor’s benefits because she must only show that black lung disease caused

or hastened her husband’s death. The statute, however, applies to any person

aggrieved by a Board decision. The court in Danko rejected a similar claim in a

petition for survivor’s benefits. See 846 F.2d at 368.

      Accordingly, we conclude we are without jurisdiction to review the Board’s

decision. In these circumstances, we are authorized to transfer the appeal to the

appropriate court when the interests of justice would be served. See 28 U.S.C. §

1631. We see no reason why the appeal should not be transferred, particularly

when the federal respondent has suggested that transfer is appropriate. Mrs

Broyles’ petition for review is therefore transferred to the Seventh Circuit for all

further proceedings.




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