1994 Decisions

Opinions of the United

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Precedential or Non-Precedential: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 employerfunded 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.