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

### MAY 7 1998 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JANET M. BROYLES, Widow of Earl Broyles, Petitioner,

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

Appeal from the United States Department of Labor (except OS HA) (No. 96-0765 BLA)
Jeffrey B. Diamond, Carlsbad, New Mexico, for Petit ioner. Marvin Krislov, Deputy Solicitor for National Operations, Donald S. Shire, Associate Solicitor for Black Lung Benefits, Christ ian 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.1 After examining the briefs and appellate record, th is panel has determined

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 c ause is therefore ordered submitted without oral argument.

-2- Janet Broyles, the widow of a coal miner, filed a c laim 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 thatdecision to the Benefits Review Board, which affirmed the denial and denied her motion for reconsideration. Mrs. Broyles then timely petition ed this court for review. The federal respondent filed a motion to transfer the p etition 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, 3 0 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-3-

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 consistent ly held that “jurisdiction is appropriate only in the circuit where the miner’ s coal mine employment, and consequently his harmful exposure to coal dust, occ urred.” 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 m anifests 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 manif estation in black lung cases is difficult and prone to dispute, basing jurisdiction on manifestation rather than the place of exposure would generate factual disputes a nd 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 jurisd iction is nonetheless proper in this circuit because her husband lived here for a l engthy period before his death, received all of his medical treatment here, and die d here. This argument is in essence a variation of the contention that injury o ccurs when the disease manifests itself. We agree with the unanimous rulings of oursister circuits rejecting this assertion and adopting the “sensible rule” that jur isdiction is appropriate in the-4-

circuit where exposure occurred. Id. Mrs. Broyles also asserts that the place of exposur e 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, howe ver, 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 jurisdictio n to review the Board’s decision. In these circumstances, we are authorize d to transfer the appeal to the appropriate court when the interests of justice wou ld be served. See 28 U.S.C. § 1631. We see no reason why the appeal should not b e transferred, particularly when the federal respondent has suggested that tran sfer is appropriate. Mrs Broyles’ petition for review is therefore transferr ed to the Seventh Circuit for all further proceedings.