Washington Metropolitan Area Transit Authority v. Beynum

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 1997 Decided June 5, 1998

No. 97-1008

Washington Metropolitan Area Transit Authority,

Petitioner

v.

Eugene L. Beynum and

Director, Office of Workers' Compensation Programs,

Respondents

On Petition for Review of an Order of the

Benefits Review Board

Michael D. Dobbs argued the cause for petitioner. With
him on the briefs were Charles P. Monroe and Erik C.J.
Anderson.

John G. Harnishfeger argued the cause for respondent
Beynum. Eric M. May was on the brief.

Samuel J. Oshinsky filed the brief for respondent Director,
Office of Workers' Compensation Programs. With him on
the brief was Carol A. De Deo.

Before: Williams and Randolph, Circuit Judges, and
Buckley, Senior Circuit Judge.

Opinion for the Court filed Per Curiam.

Per Curiam: This petition for review of an order of the
Benefits Review Board, brought by the Washington Metro-
politan Area Transit Authority (WMATA), raises a prelimi-
nary question relating to our jurisdiction. The question deals
with the effect of the Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat.
1321, on the adjudication of a claim arising under the District
of Columbia Workmen's Compensation Act of 1928, D.C.
Code s 36-501 et seq. The Appropriations Act provides, in
relevant part, that no funds "may be used by the Secretary of
Labor after September 12, 1996, to review a decision under
the Longshore and Harbor Workers' Compensation Act (33
U.S.C. 901 et seq.) that has been appealed and that has been
pending before the Benefits Review Board for more than 12
months." Pub. L. No. 104-134, 110 Stat. 1321, 1321-219.
The Act further provides that any decision pending review for
more than one year and not acted on by September 12, 1996,
is considered affirmed as of that date for purposes of obtain-
ing appellate review. Id.

On May 4, 1995, Eugene L. Beynum, a WMATA employee,
sought Board review of an administrative law judge's decision
that he had not established a change in his condition entitling
him to permanent total disability benefits. The Board finally
decided the matter on December 10, 1996, by which time the
appeal had been pending for approximately 19 months. The
Board's order remanded the case to the ALJ. If the Appro-
priations Act applies, the final decision we have before us is
the ALJ's decision, summarily affirmed by operation of law
on September 12, 1996. On the other hand, if the Appropria-
tions Act does not apply, we have no final decision and hence

no jurisdiction--a Board decision to remand is not a final
order within the meaning of 33 U.S.C. s 921(c).

History helps explain the interaction between the Appropri-
ations Act and D.C. workers' compensation law. In 1928
Congress, acting in its capacity as legislature for the District
of Columbia, enacted the District of Columbia Workmen's
Compensation Act. Having no substantive provisions of its
own, the 1928 Act incorporated by reference the provisions of
what was then entitled the Longshoremen's and Harbor
Workers' Compensation Act, "including all amendments that
may hereafter be made thereto." Fifty years later, after the
District had been granted home rule, the City Council passed
the District of Columbia Workers' Compensation Act of 1979.
See D.C. Code Ann. s 36-301 et seq. The 1979 Act, which
expressly repealed the earlier law, went into effect July 26,
1982. For employees whose injuries occurred before this
date, the 1928 Act is kept alive by the General Savings
Statute, 1 U.S.C. s 109. See Keener v. WMATA, 800 F.2d
1173, 1175 (D.C. Cir. 1986). Beynum, who suffered a work-
related injury on December 29, 1978, resulting in his partial
permanent disability, falls into this category.

We have confronted this situation, or one very analogous,
once before. Keener v. WMATA considered the effect of the
Longshore and Harbor Workers' Compensation Act Amend-
ments of 1984 on claims arising under the 1928 Act. Follow-
ing the lead of the District of Columbia Court of Appeals in
O'Connell v. Maryland Steel Erectors, Inc., 495 A.2d 1134
(D.C. 1985), we concluded that, "as the repeal of the 1928 Act
had the effect of severing the application of the Longshore-
men's Act to the District of Columbia in 1982, the subsequent
1984 amendments were without effect on the law of the
District." 800 F.2d at 1175. Once an act has been repealed,
it may no longer be amended--at least not by the cross-
reference system established by the 1928 Act and mooted by
the 1979 Act. This is despite its continued existence in "a
state of suspended animation" for the purpose of preserving
the rights and liabilities created under it. Id. at 1177.

While Keener holds that amendments to the Longshore and
Harbor Workers' Compensation Act do not affect claims

arising under the now-repealed D.C. law, the question re-
mains whether the Appropriations Act is such an amendment.
We believe it is, although it is not labeled as such. The
Appropriations Act addresses the finality of decisions under
the Longshore Act, thus altering its provisions. That the
alteration occurred in appropriations legislation is of no mo-
ment. "Congress ... may amend substantive law in an
appropriations statute, as long as it does so clearly." Robert-
son v. Seattle Audubon Soc'y, 503 U.S. 429, 440 (1992); see
also American Fed'n of Gov't Employees, AFL-CIO v. Camp-
bell, 659 F.2d 157, 161 (D.C. Cir. 1980).

Still, one might reason that Congress wanted to include
claims decisions issued under the repealed 1928 D.C. law
because it did not specifically exclude them from the reach of
the Appropriations Act, as it did for "any decision issued
under the Black Lung Benefits Act." Pub. L. No. 104-134,
110 Stat. 1321-219. (The Black Lung Benefits Act, like the
1928 law, adopts many of the Longshore Act's provisions.) A
similar argument was made in O'Connell. The court's re-
sponse, we believe, is conclusive: "The short answer to this
contention is that there was no occasion for Congress to
exclude expressly from the application of provisions of the
new law any statute already repealed." 495 A.2d at 1144.

For all of these reasons, we hold that the Appropriations
Act is without effect on the operation of the 1928 law or the
adjudication of claims arising under it. The Board had
jurisdiction to decide Beynum's appeal even though it had
been pending for more than one year. Since the Board's
order remanded the case to the ALJ for further consider-
ation, it is not appealable. Under 33 U.S.C. s 921(c), judicial
review may be had only of final orders. A Board order
remanding the claim to an ALJ is not in that category. See
WMATA v. Director, OWCP, 824 F.2d 94 (D.C. Cir. 1987);
see also Director, OWCP v. Bath Iron Works Corp., 853 F.2d
11 (1st Cir. 1988); Newpark Shipbuilding & Repair v.
Roundtree, 723 F.2d 399 (5th Cir. 1984); Director, OWCP v.
Brodka, 643 F.2d 159 (3d Cir. 1981). Accordingly, we dismiss
the petition for want of jurisdiction.

So ordered.