Trans-state Dredging, et al., Petitioners, v. David E. Tarner, and Director, Office of Workers'compensation Programs, Respondents, 695 F.2d 505 (11th Cir. 1983)

Elizabeth A. Celis, U.S. Dept. of Labor, Washington, D.C., for Director, Office of Workers' Compensation Programs.

D. Culver Smith, III, Steel, Hector, Davis, Burns & Middleton, Palm Beach, Fla., for Tarner.

Petition for Review of an Order of the Benefits Review Board.

Before HATCHETT and ANDERSON, Circuit Judges, and INGRAHAM,^*  Senior Circuit Judge.

PER CURIAM:

Under Sec. 21(c) of the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA") [33 U.S.C.A. Sec. 921(c) (West 1978) ], any person affected by a final order of the Benefits Review Board ("Board") "may obtain review of that order in the United States court of appeals for the circuit in which the injury occurred." 33 U.S.C.A. Sec. 921(c) (West 1978). Respondent David Tarner was injured on June 25, 1971, while working for petitioner Trans-State Dredging Company ("Trans-State") in Beaufort, South Carolina. Tarner filed a claim for benefits under the LHWCA. After the Administrative Law Judge ("ALJ") found for Tarner, the petitioners, Trans-State and Hartford Accident & Indemnity Company ("Hartford") appealed to the Board. The Board upheld the ALJ's judgment. The petitioners then sought review of the Board's order in the Court of Appeals for the Eleventh Circuit. At this point, we noted that this court may lack subject matter jurisdiction because Tarner was injured in South Carolina, which lies within the Fourth Circuit's territory. The parties submitted supplemental briefs addressed to this jurisdictional issue.

Courts which have analyzed Sec. 21(c) have found the requirement to obtain review in the court of appeals for the circuit in which the injury occurred to be a matter of subject matter jurisdiction, and not simply a matter of venue. See Dantes v. Western Foundation Corp., 614 F.2d 299, 300 (1st Cir. 1980) (cases collected); Pearce v. Director, Office of Workers' Compensation Programs, 603 F.2d 763, 771 (9th Cir. 1979); but cf. Panhandle Eastern Pipe Line Co. v. Federal Power Commission, 324 U.S. 635, 638-39, 65 S. Ct. 821, 823-824, 89 L. Ed. 1241 (1945). We note that the Ninth Circuit, in Pearce v. Director, Office of Workers' Compensation Programs, supra, held that, notwithstanding its want of subject matter jurisdiction, the court had "the jurisdiction necessary to enable [the court] to make the transfer." 603 F.2d at 771. Because we find specific authority to transfer the case in the recently enacted Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, Sec. 301, 50 U.S.L.W. 77, 86 (1982) (to be codified at 28 U.S.C. § 1631), we need not address the Pearce issue of whether or not we have inherent power to transfer the case.

Section 301 of the new Act authorizes a court of appeals, upon finding a want of jurisdiction, to transfer "an appeal, including a petition for review of administrative action" to another court of appeals "if it is in the interest of justice."¹  The effective date of the Act is October 1, 1982. Nothing in the Act or its legislative history suggests that Sec. 301 should not apply to cases pending on that date. Federal Courts Improvement Act of 1982, Sec. 403; H.R.Rep. No. 312, 97th Cong., 1st Sess. 16 (1981); S.Rep. No. 275, 97th Cong., 1st Sess. 32 (1981). The remedial purpose of the statute is best served by doing so. See S.Rep. No. 275, 97th Cong., 1st Sess. 11 (1981). Accordingly, we transfer this action to the Fourth Circuit.

SO ORDERED.