Jеwell Smokeless Coal Corporation appeals from a decision of the Benefits Review Board (“BRB”) dismissing its appeal from an award of benefits made by an administrative lаw judge (“AU”) to one Melvin Looney under the Black Lung Benefits Act, 30 U.S.C.A. §§ 901-945 (West 1986). The BRB dismissed the appeal sua sponte, finding that the appeal had not been filed within thirty days of the filing of the AU’s decision with the “officе of the deputy commissioner” as required by section 21 of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 921(a) (West 1986), and 20 C.F.R. § 802.205 (1989). 1 In this Court the Director of the Office of Workers’ Compеnsation Programs of the Department of Labor (“the Director”) concedes that the reason stated by the BRB for dismissing Jewell’s administrative appeal was erroneous. However, the Director seeks to have the BRB’s action upheld on the alternative ground that Jewell’s time for appeal began to run not on the date that the AU’s decision was filеd with the office of the deputy commissioner but on the date that it was issued.
I.
The pertinent facts are not in dispute and may be briefly stated. The AU issued his decision on November 23, 1988, and mailеd it to the parties. The certificate of service does not reflect whether the decision was sent out by certified, registered or regular mail. The deputy commissioner received a copy of the decision on December 2, 1988. (This date was unknown to the BRB when it entered its order dismissing Jewell’s appeal). Counsel for Jewell received a cоpy of the decision on November 28, 1988. Jewell mailed its notice of appeal to the BRB on December 27, 1988.
The relevant statutes and regulations may also be briefly summarized. Section 919(e) of 33 U.S.C.A. requires that an order rejecting or making an award be filed in the office of the deputy commissioner and that a copy of it be sent by registered or certified mail to the parties. 33 U.S.C.A. § 919(e). Section 921(a) provides that “[a] compensation order shall become effective when filed in the office of the deputy commissioner as provided in section 919 of this title, and ... shall become final at the expiration of the thirtieth day thereafter.” 2 33 U.S.C.A. § 921(a). Section 725.479(a) of 20 C.F.R. essentially parrots what is said in section 921(a), аnd 20 C.F.R. § 802.205 — a rule of practice and procedure of the BRB — provides that a notice of appeal from an award of benefits “must be filed within 30 days from the date upon which a decision or order has been filed in the Office of the Deputy Commissioner pursuant to section 19(e) of the LHWCA [33 U.S.C.A. 919(e)] or in such other office as may be established in the future_” 20 C.F.R. § 802.205(a) (1989).
Seсtion 725.478 is the linchpin of the Director’s argument on appeal. It provides as follows:
On the date of issuance of a decision and order ... the administrative law judge shall serve thе decision and order on all parties to the claim by certified mail. On the same date, the original record of the claim shall be returned to the DCMWC [Division of Coal Mine Workers’ Compensation] in Washington D.C., and the decision and order shall be considered to befiled in the office of the deputy commissioner,
20 C.F.R. § 725.478 (1989).
II.
The factual premise of the BRB’s dismissal of Jewell’s appeal was that the appeal was filed more than thirty days after the ALJ’s decision had been filed in the office of the deputy commissioner. This premise was incorrect; the ALJ’s decision was not filed with the office оf the deputy commissioner until December 2, 1988, and Jewell noted its appeal on December 27. The Director nevertheless argues that the BRB’s decision was correct since under 20 C.F.R. § 725.478 an ALJ’s decision “shall be considered to be filed in the office of the deputy commissioner” on the date that it is issued, and the AU here issued his decision on November 23, 1988.
The Directоr recognizes that this interpretation of section 725.478 brings it into conflict with 33 U.S.C.A. § 921, which provides that a compensation order shall become effective when it is filed in the office of the deputy commissioner and final thirty days thereafter. However, the Director asserts that the promulgation of the regulation falls within the Secretary’s broad power “to deрart from specific [statutory] requirements ... in order to administer the black lung compensation program properly.”
Director, Office of Workers’ Compensation Programs v. National Mines Corp.,
The Third Circuit rejected the Director’s position in
Trent Coal, Inc. v. Day,
We need not decide, as the Director urges us to do, whether Trent Coal was correctly decided because there is another, narrower ground upon which this case turns. 5
We essentially agree with that reading. In ordеr to prevent an indefinite time period for appeal by a party who has actual notice of the AU’s decision, we might, if called upon to do so by the facts of a рarticular case, supplement the Third Circuit’s formulation by adding a clause “or until the appealing party has actually received the AU’s decision by regular mail.” However, that question is not now before us since Jewell did file its appeal within thirty days of its actual receipt of the AU’s decision. It acted diligently, and it is entitled to have its appeal heard on the merits by the BRB.
REVERSED AND REMANDED.
Notes
. "Deputy Commissioner” means the deputy commissioner within the Department of Labor having jurisdiction with respect to a particular injury or death. See 33 U.S.C.A. § 902(7).
. Section 921(a) is the сodification of Section 21 of the Longshore and Harbor Workers' Compensation Act. The Black Lung Benefits Act incorporates some of the provisions of the LHWCA, including Section 21.
. The Director points out that in
Bennett v. Director, Office of Workers’ Compensation Program, 111
F.2d 1167 (7th Cir.1983), the Seventh Circuit accepted the Director’s interpretation of the regulations and found that an appeal had to be filed within thirty days of the issuance of an ALJ’s decision.
Id.
at 1168-69. However, in
Bennett
the claimant sought to appeal the denial of his claim more than six months after the ALJ issued his decision, and thе meaning and validity of section 725.478 were not addressed.
Id.
Likewise, in
Blevins v. Director, Office of Workers’ Compensation Program,
. During oral argument counsel for the Director suggested that this interpretation of the regulation is not plausible since the deputy commissioner having jurisdiction over black lung cases works in the Division of Coal Mine Workers’ Compensation. In light of our disposition of the case on other grounds, we neеd not consider that question.
. In
Harris v. Nacco Mining Co.,
12 BLR 1-115, 116 (1989), the BRB stated, "In the interest of fairness and judicial efficiency, this Board has applied the Third Circuit’s holding in
Trent Coal, Inc.
in cases arising in all circuits...."
Id.
During oral argument counsel for the Director suggested thаt the BRB’s decision in
Harris
is of no consequence because it is within the discretion of the Director, not the BRB, to decide in which judicial decisions to acquiesce. Because thаt question has not been briefed by the parties and is not necessary to our decision, we do not reach it. However, whatever the respective spheres of responsibility of the Director and the BRB within the Department of Labor may be, considerations of fundamental fairness dictate that if the Director desires to continue to pursue the questiоn decided by
Trent Coal,
he do so by a means other than attempting to have a decision of the BRB, which was based upon a false factual premise, affirmed on a ground which the BRB has itself expressly eschewed. As a general matter, "[a]gencies are under an obligation to follow their own regulations, procedures, and precedents, or provide a rational explanation for their departures."
National Conservative Political Action Committee v. Federal Election Commission,