                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-15-1994

Bethenergy Mines v. Dir. Office of Workers' Comp.,
et al.
Precedential or Non-Precedential:

Docket 93-3428, 93-3429, 93-3430;93-3431, 93-3432 and 93-3463




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           UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT



           Nos. 93-3428, 93-3429, 93-3430,
             93-3431, 93-3432 and 93-3463


               BETHENERGY MINES, INC.
                                 Petitioner No. 93-3428

                         v.

 DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
        United States Department of Labor and
          CATHERINE PIERSON, widow/BERNARD,
                                  Respondents



               BETHENERGY MINES, INC.
                                 Petitioner No. 93-3429

                         v.

 DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
United States Department of Labor and WILLIAM LEJUENE,
                                  Respondents



                BETHENERGY MINES INC.
                                  Petitioner No. 93-3430

                         v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
United States Department of Labor and THOMAS GRASSA,
                                  Respondents



             BARNES AND TUCKER COMPANY,
                                  Petitioner No. 93-3431

                         v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
United States Department of Labor and GEORGE LUBERT,
                                           Respondents


                         BETHENERGY MINES INC.
                                           Petitioner No. 93-3432

                                   v.

         DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
                United States Department of Labor and
                    MARY BOHACHICK, widow/SAMUEL,
                                          Respondents



                         BETHENERGY MINES, INC.
                                           Petitioner No. 93-3463

                                   v.

         DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
            United States Department of Labor and Industry;
          PATRICIA J. DOTY, (o/b/o James Levanoff Deceased),
                                           Respondents



     On Petitions for Review of Orders of the Benefits Review Board
    (Benefits Review Board Nos. 92-2703/04/05/2685/86 & 93-252 BLA)


                          Argued May 6, 1994

      Before:   SLOVITER, Chief Judge, HUTCHINSON, Circuit Judge,
                      and DIAMOND,* District Judge

                        (Filed August 15, 1994)



John J. Bagnato (Argued)
Spence, Custer, Saylor, Wolfe & Rose
Johnstown, PA 15907

Mari Ann Hathaway
Ceisler, Richman, Smith

*
 . Hon. Gustave Diamond, United States Senior District Judge for
the Western District of Pennsylvania, sitting by designation.
Washington, PA   15301
  Of Counsel

          Attorneys for Petitioners

Thomas S. Williamson, Jr.
  Solicitor of Labor
Donald S. Shire
  Assistant Solicitor
Michael J. Denney
  Counsel for Enforcement
Deborah E. Mayer (Argued)
United States Department of Labor
Office of the Solicitor
Washington, DC 20210

          Attorneys for the Director,
          Office of Workers' Compensation Programs



                         OPINION OF THE COURT

SLOVITER, Chief Judge.

          The issue presented by this appeal is a jurisdictional

one pending as well in three other courts of appeals1 - whether

the administrative bodies that adjudicate black lung claims or

the district courts have jurisdiction to resolve disputes

regarding interest assessed against coal mine operators on
reimbursements to the Black Lung Disability Trust Fund (the

"Fund") for medical benefits that the Fund previously paid to or

on behalf of claimants.    Underlying this jurisdictional dispute

is a significant legal issue, which is the authority of the

Department of Labor (the "Department") to assess interest against
1
 . The other cases pending are Sea "B" Mining Company v.
Director, OWCP, No. 93-1784 (4th Cir., filed June 22, 1993,
argued Apr. 12, 1994); B & S Coal Company v. Director, OWCP, 93-
3665 (6th Cir. filed June 21, 1993); Peabody Coal Company v.
Director, OWCP, 93-2597 (7th Cir. filed July 22, 1993, argued
Feb. 23, 1994).
operators and carriers on such claims for the period before the

responsible party has had the opportunity to review the data

supporting the medical benefit.    Because of the jurisdictional

dispute, the legal issue has not been presented here or in the

other three circuits, despite the apparent agreement among the

parties that there is not likely to be much litigation over the

amount of interest once that underlying issue is finally

resolved.

            In the matter before us, the Benefits Review Board (the

"Board" or "BRB") determined that these actions may only be heard

by the district courts.   Accordingly, it affirmed the decision of

the Administrative Law Judge dismissing the actions.     BethEnergy

Mines, Inc. and Barnes and Tucker Company, coal mine operators,

filed this petition for review as part of a series of test cases.

This court has jurisdiction over petitions for review of final

orders of the Benefits Review Board pursuant to 33 U.S.C. §

921(c) (1988).

                                  I.

                                  A.

                             Background

            The Black Lung Benefits Act ("the Act"), 30 U.S.C. §

901 et seq., establishes a comprehensive legislative scheme

designed to compensate miners for medical problems and

disabilities related to pneumoconiosis (black lung disease).

            The Act incorporates by reference the claim management

and adjudication procedures of the Longshore and Harbor Workers'

Compensation Act (the "Longshore Act") to govern the Department
of Labor's administration of Part C of the Act (the employer-

funded federal workers' compensation program applicable to

employees who have become totally disabled or died due to

pneumoconiosis.)    See 30 U.S.C. § 932(a) (incorporating most of

33 U.S.C. §§ 901-950); see also Louisville and Nashville R.R. Co.

v. Donovan, 713 F.2d 1243, 1247 n.2 (6th Cir. 1983), cert.

denied, 466 U.S. 936 (1984).

          In this case, our concern is with claims made to the

Department of Labor for medical benefits only.    Therefore, there

is no need to review the history of the involvement of the Social

Security Administration and the manner of resolving claims made

for miners' disability or death, all of which has been reviewed

in prior cases.    See, e.g., Pittston Coal Group v. Sebben, 488

U.S. 105 (1988); Mullins Coal Co. v. Director, OWCP, 484 U.S. 135

(1987); Elliot Coal Mining Co. v. Director, OWCP, 17 F.3d 616,

627-628 (3d Cir. 1994); Helen Mining Co. v. Director, OWCP, 924

F.2d 1269, 1271-72 (3d Cir. 1991).

          As is set forth in these cases, the Act established the

Black Lung Disability Trust Fund, which is financed by a

manufacturer's excise tax on coal.    That Fund pays benefits

directly to claimants not only when there is no responsible

operator, but also before a responsible operator is determined

and in other circumstances established by law.    See e.g., Elliot
Coal, 17 F.3d at 628; Helen Mining, 924 F.2d at 1272; 20 C.F.R. §

725.522 (1993).

          In certain circumstances, as those presented in these

cases, when miners seek payment of medical expenses incurred for
treatment of pneumoconiosis ("medical benefits only" or "MBO"

claims), the Fund pays claimants before operator liability is

determined, see 20 C.F.R. § 725.701A(b), and the Department will

seek reimbursement from the responsible operator.   Sometime in

1988, the Department adopted a new agency policy to collect

interest on medical expenditures made by the Fund and later

reimbursed by the operator or carrier.   Pursuant to this policy,

the date on which the Fund paid the medical bill is the accrual

date for interest.   See 20 C.F.R. § 725.608(b).
                                 B.

                     Proceedings in these cases

          Although the facts of each of the six consolidated

cases vary somewhat, those common to all make them appropriate

for joint disposition here.   In each case, after determination

that a valid MBO claim had been submitted, the district director2

approved the claimant's request for medical treatment expenses;

determined that one of the petitioners was the responsible

operator; and, either some time before or after determination of

the responsible operator, received a request from the claimant or

his medical providers for payment for specific bills or treatment

which, after the Department or its agent approved, was paid by

the Trust Fund.3   Thereafter, the Department sought reimbursement

from the operator.   In many of the cases the operator, as is its

right, requested documentation for the medical expenses.     In all

of the cases before us, the operator ultimately reimbursed the

Fund for its payment (referred to by the Operators as

reimbursement of the "principal" paid.)

          Following the operator's acceptance of responsibility

for the MBO, the Department of Labor, pursuant to Department
2
 . By "district director" we refer to the initial screening
officer of the Office of Workers' Compensation Programs of the
Department of Labor. This individual may also be referred to as
the "deputy commissioner" in the relevant statutes. See, e.g.,
33 U.S.C. § 919(a) ("a claim for compensation may be filed with
the deputy commissioner").
3
 . The determination that the miner is eligible for medical
benefits does not automatically entitle the claimant to payment
of specific medical expenses, which must be shown to be related
to pneumoconiosis.
policy, billed the operator for the interest due on the

underlying claim.   As noted above, the interest was assessed from

the date the Fund paid the claim.    In the cases before us, it

appears that this interest period may have covered from five to

nine years.   App. at 94-97; App. at 138, 140, 141.    In each case,

the operator challenged this assessment of interest and the case

was referred to Administrative Law Judge G. Marvin Bober, who

consolidated the six cases for joint resolution.      The ALJ,

believing that the issue was governed by the decision of the

Court of Appeals for the Sixth Circuit in Vahalik v. Youghiogheny

& Ohio Coal Co., 970 F.2d 161 (6th Cir. 1992), dismissed the

cases for lack of jurisdiction in September 1992.

          The Operators appealed the six cases to the Benefits

Review Board, which held them in abeyance pending its resolution

of Brown v. Sea "B" Mining Co., 17 Black Lung Rep. (MB) 1-115,

1993 WL 172283 (Ben. Rev. Bd. 1993) (en banc).    After it decided

Sea "B", the Board dismissed these cases for lack of subject

matter jurisdiction.   The Operators appealed this decision to

this court, filing petitions for review in the six cases on

September 2 and 15, 1993.

                               II.

          The existence of subject matter jurisdiction is a

question of law over which this court exercises plenary review.

See Connors v. Tremont Mining Co., 835 F.2d 1028, 1029 (3d Cir.
1987).
                                 A.

                  Right to a Hearing Before an ALJ

           The Operators argue that the failure of the ALJ and the

Board to exercise jurisdiction over this case has denied them the

right to a hearing and review thereof as guaranteed in 33 U.S.C.

§§ 919 and 921 (1988).   The Act provides that claims are filed

with the deputy commissioner who has "full power and authority to

hear and determine all questions in respect of such claim."      33

U.S.C. § 919(a) (emphasis added).     Should any interested party so

desire, the deputy commissioner must order a hearing before an

administrative law judge.   See 33 U.S.C. § 919(c) and (d); Pyro

Mining Co. v. Slaton, 879 F.2d 187, 190 (6th Cir. 1989)

("according to statute, [interested parties] have a right to a

hearing before an administrative law judge on all questions in

respect of a claim.").

           The Act provides that following this determination

there may be an appeal to the Board, 33 U.S.C. § 921(b)(3), and a

petition for review thereafter to the court of appeals, id. §

921(c).    See Krolick Contracting Corp. v. Benefits Review Bd.,
United States Dep't of Labor, 558 F.2d 685, 687-88 (3d Cir.

1977).    The question before this court, then, is whether the

Operators' challenge to the interest assessed against them is a

"question[] in respect of [a] claim" such that it must be

referred to an ALJ pursuant to 33 U.S.C. § 919 or whether, as the

Department argues, the challenge concerns a collateral attack on

a final compensation order, jurisdiction over which rests in the

district court pursuant to 30 U.S.C. § 934(b)(4)(A).
          The Operators recognize that after a black lung claim

is determined on the merits by either an award or acceptance of

liability by an operator, they are obliged to reimburse the Fund

for the amount paid plus what the Operators term post-judgment

interest, i.e., interest which runs from 30 days after the award

or the acceptance of liability.   See 30 U.S.C. § 932(d).

          The Operators contend that the charges assessed against

them here constitute prejudgment interest, which is not

authorized under the Act.   See, e.g., Bethlehem Mines Corp. v.

Director, OWCP, 766 F.2d 128, 131 (3d Cir. 1985); Youghiogheny &

Ohio Coal Co. v. Warren, 841 F.2d 134, 138-39 (6th Cir. 1987).4

They reason that because these challenges to interest assessed

require interpretation and application of the Act and its

enforcement scheme, they constitute "questions in respect of such

claim."

          The Department's position is that because the interest

assessment involves a dispute solely between the Department and

the operator, it does not constitute a question "in respect of

such claim."   The Department's position is that the "claim"

within the meaning of section 919, which triggers the right to

review through the administrative process, is the claim on behalf

of the disabled or deceased miner (the claimant).



4
 . The Department disputes the characterization of the interest
assessed as "prejudgment" for various reasons. Because the
nature of this interest is not before the court at this time, we
need not consider the appropriate classification thereof and use
the term for convenience.
          This construction of "claim" has statutory support.

The statute provides that a claim must be filed with "the deputy

commissioner in the compensation district in which such injury or

death occurred."   33 U.S.C. § 913(a).    Section 919(d), which

governs "Procedure in respect of claims," provides that "a claim

for compensation may be filed with the deputy commissioner . . .

any time after the first seven days of disability following any

injury, or at any time after death."     33 U.S.C. § 919(a).

Because the "claim" to which these sections refer is that of the

injured or deceased miner, the administrative procedure outlined

in the subsections (c) and (d) of section 919 is available only

to a party (usually the employer-operator or its carrier) who

seeks to challenge some aspect of the miner's "claim," such as

the miner's eligibility for some or all of the compensation

sought or granted.

          It is not disputed that determinations of underlying

operator liability in MBO cases raise questions in respect of a

claim.   Though framed as contests between the particular operator

and the Fund over reimbursement, these determinations provide the

means by which an operator may challenge the validity of all or

part of the miner's initial claim, including each medical

expense, even though it has already been paid by the Fund.

Proceedings before the ALJ and the Board in these matters thus

center on the evaluation of the claimant's entitlement to

payments already disbursed by the Fund.    See, e.g., Stiltner v.

Doris Coal Co., 14 Black Lung Rep. (MB) 1-116, 1990 WL 284122

(Ben. Rev. Bd. 1990) (en banc) (affirming award of medical
benefits and thus ordering operator and carrier to reimburse the

Fund based on determination that miner's respiratory conditions

were related to coal mine employment), rev'd in part, Doris Coal

Co. v. Director, OWCP, 938 F.2d 492 (4th Cir. 1991); Skaggs v.

Imperial Colliery Co., 14 Black Lung Rep. (MB) 3-311 (Admin. Law

Judge 1990) (evaluating employer's challenge to certain medical

bills already paid based on its contention that they were not

related to miner's pneumoconiosis); Wright v. Beth-Elkhorn Coal

Corp., 14 Black Lung Rep. 3-692 (MB) (Admin. Law Judge 1990)

(employer not liable to reimburse Fund for medical expenses

because miner was not eligible for them and Fund had paid them

erroneously).

          These underlying liability determinations stand in

sharp contrast to the Operators' challenge to the Department's

assessment of interest against them for the period before they

accepted responsibility for the medical benefits.    The interest

sought is not to benefit the claimant, nor is it sought on behalf

of the claimant.    It is sought merely to reimburse the Fund for

the time-value of money expended by the Fund when it paid for the

miner's medical benefits.    This latter dispute is one exclusively

between the Operators and the Fund.    As a result, although the

demand for interest is predicated in the first instance on the

fact that the miner filed the claim, it cannot be said to raise

any "questions in respect of such claim," all of which have been

resolved by then.

          It follows that sections 919 and 921 do not provide the

Operators the right to a hearing before an administrative law
judge, nor to an appeal to the Benefits Review Board in these

interest cases.    Instead, the Operators' opportunity to challenge

this interest assessment is controlled by those statutory

provisions concerning access to the district courts for

enforcement of black lung liability.

                                 B.

                     District Court Jurisdiction

            District court jurisdiction arises under the Act under

two statutory provisions: 33 U.S.C. § 921(d), one of the

incorporated provisions of the Longshore Act, and 30 U.S.C. §

934, a provision within the Black Lung Act itself.    In Connors v.

Tremont Mining Co., 835 F.2d 1028 (3d Cir. 1987), we set forth

the requirements for district court jurisdiction under 33 U.S.C.

§ 921(d) (Section 21 of the Longshore Act) as follows: "there

must be . . . first, [a] final compensation order [that] has been

effectuated, and second, . . . the responsible operator has

failed to comply with that compensation order."    Id. at 1031.

            District court access is also provided by 30 U.S.C. §

934 (Section 424 of the Black Lung Act).   Subsection (b)(2)

provides:
            If any operator liable to the fund under paragraph
            [934(b)(1)] refuses to pay, after demand, the amount of
            such liability (including interest), then there shall
            be a lien in favor of the United States for such amount
            on all property and rights to property, whether real or
            personal, belonging to such operator.



30 U.S.C. § 934(b)(2) (emphasis added).    Section 934(b)(4)(A)

provides:
           In any case where there has been a refusal or neglect
           to pay the liability imposed under paragraph [934(b)]
           (2), the Secretary may bring a civil action in a
           district court of the United States to enforce the lien
           of the United States under this section with respect to
           such liability or to subject any property, of whatever
           nature, of the operator, or in which he has any right,
           title or interest, to the payment of such liability.



Id. (emphasis added).
           We have recognized the interaction between the two

sections giving the district courts enforcement jurisdiction as

follows:
           [i]f an operator fails to pay an award of disability
           benefits for which he is liable, the successful
           claimant or the Secretary may bring an action in
           district court to enforce the order. See 33 U.S.C. §
           921(d). Moreover, the Secretary may bring an action to
           enforce a lien against an operator who fails to make
           payments to the Black Lung Disability Trust Fund. 30
           U.S.C. § 934(b)(4)(A).



Compensation Dep't of Dist. Five, United Mine Workers of America
v. Marshall, 667 F.2d 336, 339 n.6 (3d Cir. 1981).   Thus, 33

U.S.C. § 921(d) enforces the operator's liability to pay benefits

and 30 U.S.C. § 934(b) enforces the operator's liability to repay

the Trust Fund.

           There is no doubt that the Operators have failed to pay

the amounts assessed in these six consolidated cases.   They

argue, however, that an award is not final under either section

921(d) or 934(b) unless the calculation of the amount due is

finally decided, citing Sun Shipbuilding & Dry Dock Co. v.
Benefits Review Board, United States Dep't of Labor, 535 F.2d

758, 761 (3d Cir. 1976) (per curiam).   In Sun Shipbuilding, we
held that a decision is not final where the "extent of damage

remains undetermined."    535 F.2d at 760.   Here, in each case the

amount of underlying liability for the MBO has been clearly and

finally determined and is not challenged by the operators.     Thus,

Sun Shipbuilding is inapposite.

          The Operators also argue that the district director's

determinations of interest are not final because they were

afforded no opportunity to contest them.     Whatever persuasiveness

this claim may have in other contexts, in these cases the

Operators have withdrawn their controversions to the specific

medical expenses.   Thus, there was a final determination in each

case.

          We do not disagree that the Act gives the operators no

right to challenge the interest determination in the

administrative process.   Once the liability of the particular

operator and the medical expenses for each claimant has been

determined, the operator's liability for that amount plus

interest becomes fixed as a matter of law.     See, e.g., 30 U.S.C.

§ 934(b)(1) (once the operator's liability is determined, "then

the operator is liable to the United States for repayment to the

fund of the amount of such benefits the payment of which is

properly attributed to him plus interest thereon.").     Indeed,

determination of the amount of interest due is a ministerial

calculation because the rate is set by law.     See 30 U.S.C. §§

934(b)(5)(A) and (b)(5)(B) (incorporating by reference schedule

provided in 26 U.S.C. § 6621).    It follows that the Department

and the Board are correct that the Operators will have the
opportunity to raise their challenge to the imposition of

interest as a defense to a district court action brought by the

Secretary for enforcement.5

            Our determination that the district courts, and not the

Office of the Administrative Law Judges and the Board, have

jurisdiction over the claims presented here is supported by the

recent opinion of the Court of Appeals for the Sixth Circuit in

Youghiogheny & Ohio Coal Co. v. Vahalik, 970 F.2d 161 (6th Cir.

1992).   There, faced with a similar, albeit not precisely the

same, situation which this court now considers, the Court of

Appeals determined that neither the ALJ nor the Board had

jurisdiction over the claim of the Department for interest in a

medical benefits case, holding that the Department must file an

action in the district court seeking enforcement of its lien and

collection on the liability.    In Vahalik the operator had paid

the initial interest assessment and then received a second

assessment on the ground that the first had been based on a

miscalculation.    The operator resisted payment, asserting the

common law defenses of "account stated and settled" and equitable

estoppel.    Although neither the ALJ nor the BRB questioned their

own jurisdiction over the dispute, when the matter was on review

before the Court of Appeals the Department challenged the

jurisdiction assumed by the ALJ and the BRB over an operator's

objection to interest assessed on reimbursement paid to the Fund.

5
 . We take no position as to whether the Operators themselves
might seek to invoke the district court's jurisdiction by some
affirmative filing.
The Vahalik court agreed, reasoning that "[o]nce final

eligibility and liability determinations are made, the benefits

of agency expertise become irrelevant, and jurisdiction is vested

in the district courts for the enforcement of agency orders."

Id. at 162.

          This does not mean that the Operators will not have an

opportunity to challenge the assessment of interest, either on

the basis of a legal challenge or on the basis of a disagreement

as to calculation.   In fact, in Reich v. Youghiogheny & Ohio Coal

Co., No. C2-92-793, (S.D. Ohio May 13, 1994), the enforcement

action brought by the Department under 30 U.S.C. § 934 to collect

the interest at issue in the Vahalik case, the district court

thoroughly addressed the challenges raised by the operator to the

imposition of interest allegedly due to the Fund.   Without

commenting on the correctness of the district court's decision

regarding the validity of the interest claim (an issue not before

us today), we note that the proceeding under that section

provided the defendant a full and fair opportunity to litigate

its challenges to the interest assessed.

          Thus we are satisfied that a district court enforcement

proceeding would provide sufficient opportunity to the operators

to raise their challenges to the interest assessments.   In fact,

the Court of Appeals for the First Circuit has recently commented

that the enforcement proceeding established by 30 U.S.C. § 921

permits several possible bases for challenging the award in the

district court:
          it is . . . clear that the employer may contest factual
          allegations upon which the section 921(d) enforcement
          petition necessarily depends, including the main issue
          whether the employer is in default. Moreover, arguably
          at least, the employer might be entitled to raise
          factual challenges relating to (1) the amount in
          default, (2) whether new evidence indicates that the
          initial compensation order was procedurally defective,
          or otherwise not "in accordance with law," or (3)
          employee conduct that might tilt the fundamental
          balance of equities in favor of judicial restraint.



Williams v. Jones, 11 F.3d 247, 253 (1st Cir. 1993) (emphasis and

footnotes omitted).   The court based this determination on its

recognition that a section 921(d) proceeding represents the

party's "first and only forum for a full hearing of such factual

disputes prior to the issuance of an injunctive enforcement

order, with its attendant exposure to coercive contempt

proceedings."   Id. at 254.   Thus, we see no reason to conclude

that the Operators will not be given a fair opportunity to

challenge the validity of the interest assessments in an

enforcement proceeding, whether under 33 U.S.C. § 921 or 30

U.S.C. § 934.

          Finally, the Operators argue that policy rationales

weigh against a rule that would vest jurisdiction in this case

and others like it in the district courts.    They argue that there

are hundreds of cases which present similar facts, and that

Congress could not have intended that these cases be tried in the

district courts.   However, at oral argument, the Operators

conceded that once the issue of the authority of the Department

to assess what they term prejudgment interest is decided by a

court of appeals, either on appeal from a district court or via
petition from the Benefits Review Board, few, if any, cases

concerning the imposition of interest will arise.

          Thus, the Operators' policy argument is reduced to a

preference for having the determination of the interest issue

determined in an administrative proceeding, apparently because it

is less expensive.   Even though, as noted above, it is not likely

that there will be many grounds for challenging an interest award

following determination of the threshold issue, we assume that

there may be indeed a number of such instances.   Furthermore, we

assume that there may be valid reasons to prefer the

administrative process for determination of minor money claims

over the adjudication of such cases by the district courts.    In

the cases before us, the amount of interest assessed ranged from

$70.03 to $25,671.   However, it is not our view as to the

appropriate forum that is determinative.   Instead, we are dealing

with Congress's scheme, and we are not free to make a decision

based on our judgment in the matter.   If the operators have

policy considerations that they believe are persuasive, their

resort must be to Congress.

                               III.

          For the foregoing reasons, we will deny the petition

for review of BethEnergy and Barnes and Tucker because we agree

with the Board that it lacked subject matter jurisdiction over

this dispute.
