Full opinion text
PELL, Circuit Judge. In as simple terms as are permitted where the ultimate decisional statement is necessarily dependent upon frequent references to multinumbered and alphabetized statutory provisions, much of these appeals is concerned with the fact that Congress provided for recovery of money by those suffering from black lung disease but in so doing the method of reducing claims to possession was by referring to an entirely different compensation statute which itself was amended subsequent to the black lung statutes. While we as the panel to which this case was assigned must accept responsibility for the opinion which follows, we regret having to answer for the embranglement which will face any reader but the most knowledgeable in this particular field of legislative endeavor as we attempt to wend our way through the daedalian verbiage here involved. The one clear aspect of these cases is that the resulting bureaucratic disagreements as to the correct solution of the issue resulting from the statutory shambles has successfully thus far thwarted the effective implementation of a societal program deemed essential by the Congress. William Lowe, a coal miner, quit his employment with the Peabody Coal Company (Peabody) on January 9, 1974. He filed a claim for benefits under Part C of Title IV of the Federal Coal Mine Health and Safety Act of 1969, (FCMHSA) as amended by the Black Lung Benefits Act of 1972, 30 U.S.C. § 901 et seq. (1970 ed. and Supp. V, 1975,) on February 21, 1974. He died of “black lung and emphysema” on April 15, 1974. Ten days later, on April 25, 1974, Olga Lowe, his widow, filed her Part C claim for benefits. Scott Vancil was employed for fifteen years or more in underground coal mines, leaving such employment in 1952 for road construction work. He filed a claim for benefits under Part B of the Act on August 15, 1973. These consolidated appeals present important questions regarding the administrative hearing upon the Lowe and Vancil claims. The hearing on the Lowe claims was conducted by Hearing Officer Nicodemo DeGregorio, who is not an administrative law judge appointed pursuant to 5 U.S.C. § 3105. For this reason Peabody objected to his authority to conduct the hearing. On March 19, 1976, the hearing officer issued a Decision and Order, ruling that William Lowe was totally disabled by pneumoconiosis at the time of his death, that his death was due to pneumoconiosis, and that Peabody was liable for the payment of benefits to Olga Lowe pursuant to the Act. Peabody appealed this decision to the Benefits Review Board (BRB). On April 19, 1976, the BRB vacated the hearing officer’s decision on the ground that the hearing officer was not a duly qualified administrative law judge and remanded the case for a new hearing. Similarly, the hearing on the Vancil claim was conducted by Hearing Officer Thomas G. Egan, who is not an administrative law judge appointed pursuant to 5 U.S.C. § 3105. For this reason Southwestern Illinois Coal Corporation (Southwestern) objected to his authority to conduct the hearing. On March 9, 1976, the hearing officer issued a Decision and Order, ruling that Scott Vancil was totally disabled due to pneumoconiosis arising out of his coal mine employment, that the provisions of § 422(f)(2) of the Act, 30 U.S.C. § 932(f)(2) (Supp. V, 1975), precluded Southwestern from being held liable for benefits, but that the Secretary of Labor was liable for the benefits due or to become due after January 1, 1974, under § 424 of the Act, 30 U.S.C. § 934 (Supp. V, 1975), as made applicable to the claim through § 415(a)(1), 30 U.S.C. § 925(a)(1) (Supp. V, 1975). The Director, Office of Workers’ Compensation Programs, United States Department of Labor (Director), appealed this decision to the Benefits Review Board. The BRB vacated the hearing officer’s decision on the ground that the hearing officer was not a duly qualified administrative law judge and remanded the case for a new hearing. In both cases, the BRB relied upon its prior decision in Fields v. A.K.P. Coal Company, Inc., 3 BRBS 269 (1976), being reconsidered on other grounds. The BRB read the Fields decision as holding that in a case where a potentially responsible operator and/or carrier participate and where a well-founded objection to the qualifications of a hearing officer to conduct a formal hearing under the Act is made during the adjudication before that official, a Decision and Order based on that proceeding is invalid, because a hearing under the Act must be conducted by a qualified administrative law judge. Not only is the Fields decision the basis of the decisions rendered in the present cases, but it also figures in a continuing legal dispute between the United States Civil Service Commission (CSC) and the Department of Labor. Because of the peculiar interaction of that dispute with our disposition of the present petitions, it is appropriate to set forth a summary of that legal debate. Approximately two months before the Secretary of Labor was to begin processing Part B and Part C black lung claims, a personnel officer in the Department of Labor submitted to the CSC’s Office of Administrative Law Judges position descriptions for review and classification as Administrative Law Judge, GS-935. One of the descriptions was designed for cases arising under the Black Lung Benefits Act of 1972, P.L. 92-303. By a letter dated May 25, 1973, the Director of the CSC office opined that the CSC did not have jurisdiction to classify the requested positions as administrative law judges because the language of the incorporating clause in the Black Lung Benefits Act of 1972 [the amended FCMHSA] did not incorporate the subsequent October 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act [the amended LHWCA]. The CSC’s initial response to the request for administrative law judges essentially rested upon its conclusion that, under a rule of statutory construction first recognized formally by the United States Supreme Court in Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 624, 9 L.Ed. 1181 (1838), and approved a century later in Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 82 L.Ed. 858 (1938), an adopting statute takes the adopted statute as it exists at the time of adoption. The CSC noted that the black lung amendments had been enacted on May 19, 1972, and the LHWCA amendments were enacted some five months later, on October 27, 1972. The CSC concluded that there was no question but that prior to the October 1972 amendments to the LHWCA, hearings under the Federal Coal Mine Health and Safety Act of 1969 were not subject to the requirements of the Administrative Procedure Act. The CSC directed legal inquiry toward the question whether the language of the incorporating clause in the black lung amendments incorporated the subsequent amendments to the LHWCA and concluded that it did not. In a letter dated June 14, 1973, the Solicitor of Labor challenged the conclusions of the CSC on the basis that the October 1972 amendments were applicable to and were adopted by the Black Lung Benefits Act of May 1972. Subsequently, on January 18, 1974, the Secretary of Labor himself addressed a letter to the Chairman of the CSC. The Secretary’s letter observed that any substantial deviation from the adjudicatory scheme provided in the LHWCA could seriously jeopardize the appellate procedures provided for in that statute. His letter also noted that such deviation would make “the utilization of the statutory Benefits Review Board and the U.S. Court of Appeals for appellate purposes highly questionable.” Approximately one month later, on February 25, 1974, the CSC formally determined that it could not properly classify the hearing officer positions for black lung cases as administrative law judges. On March 7, 1974, Chairman Hampton sent to the Secretary of Labor still another letter explaining the CSC’s position. The letter set forth once again the CSC’s view that the adjudication of black lung cases was controlled by the provisions of the LHWCA as of the date the black lung amendments adopted the hearing procedures. Up to this point, the dispute had focused on the hearing procedures. Because the Secretary of Labor was mandated to process black lung claims, the choice was made to amend the then-existing regulation requiring the use of administrative law judges in the adjudication of black lung claims so as to permit individuals other than administrative law judges appointed pursuant to 5 U.S.C. § 3105 to hear the claims. In February 1976, however, the BRB’s Fields decision struck down as invalid the new, superceding regulations. The Fields opinion found that the regulations authorizing non-administrative law judge hearing officers to conduct hearings under the Black Lung Benefits Act were in conflict with Section 19(d) of the Longshoremen’s Act and Section 559 of the Administrative Procedure Act. One essential ground of its analysis was the BRB’s conclusion that the May 1972 amendments incorporated the subsequent October amendments to the LHWCA. Thus, the BRB disagreed with a legal analysis which the CSC had consistently pressed for approximately three years. The next stage in the disagreement between the CSC and the Labor Department soon developed. Subsequent to Fields, by a letter dated March 23, 1976, the Secretary of Labor pointed out his dilemma to the CSC’s Chairman by explaining that so long as the Fields decision was in force and so long as no duly qualified ALJ’s were permitted to conduct black lung hearings, it would be impossible for the Department of Labor to administer effectively the benefits program created by Congress. The CSC’s Chairman responded by a letter of July 6, 1976, escalating the initial dispute regarding the status of hearing officers to a jurisdictional question. The Chairman’s letter first noted that the Fields discussion on the status of hearing officers was mere dicta inasmuch as the technical holding of the case was that the statute of limitations barred any successful claim against the employer/carrier. The Chairman then pointed out that the BRB had chosen to ignore a challenge to its own jurisdiction in Fields. Expressing once again the CSC’s view that where one statute adopts the provisions of another by specific reference “such adoption takes the statute as it exists at the time of adoption and does not include subsequent modifications,’’the Chairman explained that the CSC’s 1974 decision that the October 1972 amendments did not have retroactive application to black lung cases was equally applicable to the jurisdiction of the BRB, which had been created by those amendments as the initial appellate tribunal for black lung appeals. Our factual summary of the legal debate between the CSC and the Department of Labor establishes that a major question raised in the present cases deals with the thorny issue of reference legislation. The Director, Office of Workers’ Compensation Programs, United States Department of Labor, has filed timely petitions for review, asserting that jurisdiction resides in this court pursuant to § 21(c) of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 921(c) (Supp. V, 1975), as adopted by and incorporated into the Federal Coal Mine Health and Safety Act, §§ 415(a)(5) and 422(a), 30 U.S.C. §§ 925(a)(5) and 932(a) (Supp. V, 1975). The respondents have not directly challenged the Director’s assertion that § 21(c) of the amended (October 1972) LHWCA, 33 U.S.C. § 921(c) (Supp. V, 1975), vests this court with jurisdiction over the instant review petitions. In part at least, this omission stems from the unique adversarial posture in which they find themselves. As respondents, they must meet the Director’s efforts to set aside the BRB orders. However, as petitioners in the review procedure leading to the instant orders, the mine operators reserved objections to the Board’s jurisdiction. Their argument on the merits in this court indicates that they agree with the Board that the Secretary exceeded his statutory authority by designating hearing officer's to conduct black lung cases but disagree with the BRB’s premise that the October 1972 amendments were retroactively incorporated into the FCMHSA. In what appears to be an effort to preserve a position taken as a party in interest before the BRB while supporting the BRB result with which they agree, the respondents filed in this court a motion to dismiss the Director’s petitions. Omitting a direct challenge to this court’s jurisdiction, the respondents directed their arguments in support of the motion at claimed violations of Rule 15(a), Fed.R.App.P., 33 U.S.C. § 921a (Supp. V, 1975), and 20 C.F.R. § 725.-402(d). See notes 33, 34, 35 infra. Subsequently, by leave of court, the respondents filed a response to the Director’s reply brief, arguing that the BRB has no jurisdiction over black lung cases and that its decisions in the two consolidated cases presented here have no legal force and effect. Generally speaking, the respondents’ position on the question of BRB jurisdiction tracks the CSC analysis set forth above. The threshold question in these cases being whether this court has jurisdiction to entertain petitions for review of BRB decisions in black lung cases, our responsibility to satisfy ourselves as to this court’s jurisdiction requires us to resolve the thorny questions arising out of the Congressional attempt to legislate by reference by inquiring initially into the relation between § 422(a) of the amended (May 1972) FCMHSA, 30 U.S.C. § 932(a) (Supp. V, 1975), and § 21(c) of the amended (October 1972) LHWCA, 33 U.S.C. § 921(c) (Supp. V, 1975), rathfer than by inquiring into the related question concerning the relation between § 422(a) of the amended FCMHSA, 30 U.S.C. § 932(a) (Supp. V, 1975), and § 19(d) of the amended LHWCA, 33 U.S.C. § 919(d) (Supp. V, 1975). If the May 1972 amendments to the FCMHSA of 1969 did not incorporate the October 1972 amendments to LHWCA, this court does not possess the LHWCA § 21(c), 33 U.S.C. § 921(c) (Supp. V, 1975), jurisdiction which the Director asserts is the statutory basis for these petitions for review. We turn now to that important jurisdictional issue. I. Appellate Review Under 33 U.S.C. § 921(c). A. Preliminary Comment Initially, we note that the present cases do not involve a question of compensation awards to the employees directly covered by the new formulation of the LHWCA. In such eases, where there is no problem of reference legislation, the LHWCA directly confers review jurisdiction upon the courts of appeals. Prior to the October 1972 amendments, there was no administrative review procedure for claims. The cases were heard in the first instance by Deputy Commissioners and review was then had in the United States district courts. See gen erally Pittston Stevedoring Corporation and the Home Insurance Company v. Dellaventura and Director, Office of Workers’ Compensation Programs, U.S.D.L., 544 F.2d 35, 38 n.1 (2d Cir. 1976). At the date when the October 1972 amendments became effective, the adjudicative framework changed. All such cases were thereafter to be heard first by an administrative law judge, see note 2 supra, whose decisions were then subject to review by the BRB, with a further right to review in the courts of appeals by any aggrieved person. See generally Barthelemy, Petitioner, and Director, Office of Workers’ Compensation Programs, United States Department of Labor, Intervenor v. J. Ray McDermott & Company, Inc., 537. F.2d 168 (5th Cir. 1976). Our resolution of the preliminary question of our review jurisdiction must necessarily turn upon a determination of the legal effect of the incorporating language employed in § 422(a) of the amended (May 1972) FCMHSA, 30 U.S.C. § 932(a) (Supp. V, 1975). Unless we have review jurisdiction from BRB decisions in black lung cases, it is improper to consider the question of the particular hearing procedures which Congress has mandated or allowed. It is clear that Congress has expressly manifested its intent to incorporate substantive and procedural provisions of the LHWCA into the black lung benefits program. The legal wrangling which we have set forth above developed because of the lack of any legislative materials bearing on Congressional intent with respect to the applicability of the earlier or the amended provisions of that referenced statute. B. The Plain Language Approach Ordinarily, in the absence of any legislative materials casting light upon a particular statutory problem, the desirable course is to begin analysis by recognizing that “[t]he starting point in every case involving construction of a statute is the language itself.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1383, 47 L.Ed.2d 668 (1976), quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975) (Powell, J., concurring.) In the instant eases, this method yields several important clues regarding the manner in which Congress approached the reference legislation here in issue but is insufficient alone to resolve the threshold jurisdictional question. Our inquiry into the actual wording of the incorporating clause of the black lung legislation must, of course, focus not on the abstract force of the words or what they may comprehend but rather “in what sense were they intended to be understood or what understanding do they convey as used in the particular act.” 2A Sutherland Statutory Construction § 46.07, at 66 (4th ed. 1973). The original version of § 422(a), as enacted on December 30,1969, is almost but not quite identical with the amended version. The May 1972 amendments changed the dating from 1972 to 1973, deleted number “7” from the catalogue of excluded LHWCA provisions, and deleted the qualifying phrase “an underground” with respect to the mines covered by the Act. These verbal changes do not relate directly to the review procedures subsequent to the initial hearing and yield little information regarding Congressional intent regarding the application of either the earlier or the amended LHWCA provisions. Any attempt to discern Congressional intent by resort to the textual language of the pertinent incorporating section with its direct list of excluded LHWCA provisions and implicit reference to included LHWCA provisions leads almost immediately to an incredible muddle of technical mistakes. For instance, Congress expressly excluded both in 1969 and 1972 § 43 of the original LHWCA, 33 U.S.C. § 943 (1964 ed.). Yet that specific section had been repealed by the Act of November 8, 1965, P.L. No. 89-348, § 15, 79 Stat. 1311. Assuming that the Congressional oversight as to this particular LHWCA provision carried over to § 42 of the original LHWCA, 33 U.S.C. § 942 (1964 ed.), the incorporating clause of the original FCMHSA of 1969 could be read as adopting § 42 of the original LHWCA, even though that particular section was itself repealed by the Act of September 6, 1966. P.L. No. 89-554, § 8, 80 Stat. 647. Moreover, application of the text of either the original or reformulated versions of § 422(a) of FCMHSA, notes 11,12 supra, leads inexorably to a holding that either the unamended § 5 of the LHWCA, 33 U.S.C. § 905 (1970 ed.), or the amended § 5 of the LHWCA, 33 U.S.C. § 905 (Supp. V, 1975), was or is incorporated into the black lung legislation, but that the original and never-revised § 4 of the LHWCA, 33 U.S.C. § 904 (1970 ed. and Supp. V, 1975), was or is expressly excluded. The formal incorporation of either version of the former section with the express exclusion of the latter section simply makes no rational sense by virtue of the vital interaction of the two sections. Further reading of the interplay between the LHWCA provisions taken into the FCMHSA statutory framework and the LHWCA provisions specifically excluded therefrom soon leads to other inexplicable results. In this respect, the plain language approach raises new questions rather than resolving those presented in the instant cases. Assuming arguendo that the necessary effect of adopting the provisions of an independent statute is that the incorporated provisions are always and automatically to be read as though “incorporated bodily into the adopting statute,” Hassett, supra, 303 U.S. at 314, 58 S.Ct. at 564, it becomes quite difficult in many instances to discern exactly what the language of the FCMHSA really states. The frequency of direct statutory cross-referencing creates a number of interpretative problems which we need not directly confront. However, we must face the serious jurisdictional problems engendered by the unusual formulation of the language of both the 1969 and the 1972 versions of the “adopting” section. The first sentence of the incorporating provision makes applicable to coal mine operators a number of LHWCA provisions. Congress accomplished a seemingly mandatory application of those referenced provisions by means of language expressly excluding specific LHWCA provisions. The last sentence of the incorporating provision authorizes the Secretary to prescribe additional provisions “not inconsistent” with the LHWCA sections which were specifically excluded. The authorization of regulations consistent with the LHWCA provisions not taken bodily into the FCMHSA arguably warrants the conclusion that Congress intended to make applicable any LHWCA provisions which had any tendency to promote the speedy payment of benefits to claimants who were entitled to their receipt. In any event, the explicit grant of power to the Secretary to deviate from the incorporated LHWCA provisions creates some problems. In point of fact, some of the included LHWCA subsections regulate the jurisdiction and procedure of the federal courts. We must recognize that authorizing the Secretary of Labor to reorient the division of judicial responsibilities is plainly unacceptable. “The political truth is, that the disposal of the judicial power (except in a few specified instances) belongs to Congress . . Sheldon v. Sill, 49 U.S. (8 How.) 441, 449, 12 L.Ed. 1147 (1850), quoting Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10, 1 L.Ed. 718 (1799). Because we cannot give full literal effect to the words appearing in the original and in the amended incorporating provision, we must turn to extrinsic aids to statutory construction as the fundamental means of resolving the jurisdictional question. C. Extrinsic Aids To Statutory Construction The frequency of legislation by reference has resulted in the formulation of well-settled canons of statutory construction. A leading treatise points out that [ t]here are two general types of reference statutes: statutes of specific reference and statutes of general reference. A statute of specific reference, as its name implies, refers specifically to a particular statute by its title or section number. A general reference statute refers to the law on the subject generally. 2A Sutherland, supra at § 51.07, at 322. Moreover, the type of reference plays an important role, for [ W]hen a statute adopts the general law on a given subject, the reference is construed to mean that the law is as it reads thereafter at any given time including amendments subsequent to the time of adoption. This is to be contrasted with adoption by reference of limited and particular provisions of another statute, in which case the reference does not include-subsequent amendments. Id., quoting George Williams College v. Village of Williams Bay, 242 Wis. 311, 7 N.W.2d 891 (1943). Like most rules, the rule that general and specific legislative references have different legal effects is subject to an exception. As the Sutherland treatise explains, supra at § 51.08, at 324; A statute of specific reference incorporates the provisions referred to from the statute as of the time of adoption without subsequent amendments, unless the legislature has expressly or by strong implication shown its intention to incorporate subsequent amendments with the statute. In the absence of such intention subsequent amendment of the referred statute will have no effect on the reference statute. [Emphasis supplied.] In our view, the established canons of construction provide the means for resolving the jurisdictional question. If § 422(a) of the amended (May 1972) FCMHSA, 30 U.S.C. § 932(a) (Supp. V, 1975), is a general reference, this court possesses jurisdiction over the Director’s review petitions. If the incorporating provision must be characterized as a specific and descriptive legislative reference, this court is without review jurisdiction. See generally Kendall, In re Heath, and Hassett, supra. We must note at this point that the Director’s suggestion that canons of statutory construction are frequently little more than a makeweight available to a court to reach a proper result impliedly invites this court to engage in judicial legislation. We decline to do so. While this court fully understands the reasons why a decisive resolution of the question of the proper hearing procedures for black lung cases is necessary and desirable, it cannot ignore either the controlling Supreme Court precedents relating to the rules of statutory construction or the serious question regarding the asserted jurisdiction under § 21(c) of the amended (October 1972) LHWCA, 33 U.S.C. § 921(c) (Supp. V, 1975). The Director argues that the enactment of procedural amendments to an incorporated statute calls for application of the in pari materia canon to the present cases. If the incorporating section of the black lung legislation could be construed as adopting merely the procedural heart of the LHWCA, there might be a viable in pari materia argument. Because it is clear that both substantive and procedural LHWCA provisions have been expressly adopted, see, e. g., § 421(b)(2)(F), 30 U.S.C. § 931(b)(2)(F) (1970 ed. and Supp. V, 1975); see also Usery, supra 428 U.S. at 9n.8, 96 S.Ct. at 2889, we accept the respondents’ argument that the in pari materia canon is not applicable to the instant cases. Apparently assuming that the legislative reference is specific rather than general, the Director attempts to utilize the “express intent” or “strong implication” exception to the specific reference canon. He asks this court to resolve any statutory ambiguities in accord with the reasonably inferred purposes of the draftsmen of the statute. The Director’s candid admission that there is no clear or express intent reflected in the legislative materials requires him to turn to the “strong implication” prong of the argument. Nonetheless, the opaque and unilluminating legislative materials still require him to ground the argument upon inferences and reasonable assumptions rather than upon direct implications. We cannot so cavalierly accept the Director’s suggestion that “the rule of Hassett v. Welch . . .. relied upon by the coal operators is properly discarded in the instant context . . ..” We must recognize that an implication is quite distinct from an inference or an assumption. Nevertheless, “[w]hen a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction. . . .” Willcox v. Consolidated Gas Company, 212 U.S. 19, 40, 29 S.Ct. 192, 195; 53 L.Ed. 382 (1909). Accordingly, we still must determine whether or not § 422(a) of the amended (May 1972) FCMHSA, 30 U.S.C. § 932(a) (Supp. V, 1975), is properly characterized as a general legislative reference. Our recognition that Congress may have intended to incorporate any appropriate LHWCA provisions may well mean that Congress really wanted to adopt the “general law” on the subject of workers’ compensation. D. 30 U.S.C. § 932(a) As General Or Specific Reference Undoubtedly, Congress may employ a general reference when adopting statutory provisions set out in an independent statute. Indeed, Congress did so when it gave merchant seamen the right to sue for damages arising from death or personal injury caused by negligence. In Panama Railroad Company v. Johnson, 264 U.S. 375, 391, 44 S.Ct. 391, 68 L.Ed. 748 (1924), the Supreme Court declared meritless the employer’s criticism of the amended Jones Act, 38 Stat. 1185, as amended by § 33 of the Act of June 5, 1920, 41 Stat. 1007, because it did not set forth the new liability rules but adopted them by a generic reference. The Panama Railroad Company court thought it readily understood that the “generic reference [was] ... to the Employer’s Liability Act of April 22, 1908, c. 149, 35 Stat. 65, [FELA, 45 U.S.C. § 56] and its amendments.” Id. at 391-92, 44 S.Ct. at 396. Citing inter alia, Kendall and In re Heath, supra, the Court explained that “[t]his is a recognized mode of incorporating one statute or system of statutes into another, and serves to bring into the latter all that is fairly covered by the reference.” Id. at 392, 44 S.Ct. at 398. The “fair coverage” language of Panama Railroad Company does not coincide directly with the general reference canon set out in Sutherland, supra at § 51.07, at 322. Nor does Panama Railroad Company authoritatively delineate the precise factors which determine whether a legislative reference is to be deemed general (“generic”) or specific (Hassett’s “specific and descriptive”). The delineation of the two distinct types of legislative reference is not always a simple task, while the determination of the necessary legal effect of the application of the one or the other canon is fairly routine once the initial characterization task has been completed. For instance, the actual facts of George Williams College, supra, demonstrate that a facially specific legislative reference may, in fact, constitute a general legislative reference. In that case, the Wisconsin Supreme Court had before it an instance of reference legislation wherein the state legislature had modified the scheme of procedure relating to the construction, repair, and assessment of costs for village sewers and drains. The Wisconsin court was clearly dealing with a statutory framework wherein the referenced law was referred to by specific section numbers. Because the Wisconsin court was able to conclude that the legislature was adopting the “general law” on the subject of sewer assessments, it characterized the legislative reference as general rather than as specific. The surface specificity of the incorporating language dissolved upon close judicial scrutiny. Because there is little federal decisional law pertaining to the problem of characterizing legislative references, we think it appropriate to direct close attention to what the Wisconsin Supreme Court actually did in George Williams College. We can hardly overlook the patent fact that the clear articulation by a recognized authority of the canons of construction applicable to cases such as the present relied upon George Williams College not only as the source for its observation that the two types of legislative reference have different legal consequences but for the very formulation of the rule. See Sutherland, supra at § 51.07, at 322. Our recitation of the incorporation by reference dispute between the CSC and the Secretary of Labor sufficiently demonstrates that all parties to the legal wrangling originally assumed that the incorporating language of the FCMHSA must be viewed as a specific reference. It is likely that this same basic assumption continues to prevail in the many cases raising exactly the issues pressed in the instant cases. In light of the fact that facially specific references can and sometimes do operate as general legislative references, it is our task to examine the soundness of this unexamined assumption. Before turning to that task, we note that the Director concedes that Congress occasionally enacts “technically defective statutes” but contends that we “should assume that Congress knows what it is doing with such a well-known device as incorporation by reference.” At this point we need only state that we find no basis for indulging in such an assumption upon the present record. Indeed, the express exclusion of a repealed LHWCA provision (i. e., section 43 of the original LHWCA), taken in conjunction with the inclusion of either the original or the amended § 5 of the LHWCA and the exclusion of the cross-referenced but never-revised § 4 of the LHWCA, 33 U.S.C. § 904 (1970 ed. and Supp. V, 1975), points to exactly the opposite assumption. We can reasonably draw the inference that Congress never did direct as careful attention as it should have to the specific numerical references. Arguably, a finding to that effect would be sufficient warrant for a judicial determination that the facially specific legislative reference was, in actual fact, intended as a general one. Because, however, the legal effect of applying the appropriate canon of construction plays such a determinative role in the present cases, we think it expedient to canvass other salient legislative details. In that regard, we note that the parties have focused their merits argument almost solely on the question of the FCMHSA incorporation of § 19(d) of the amended LHWCA, 33 U.S.C. § 919(d) (Supp. V, 1975). Their dispute over the validity of 20 C.F.R. § 715.101(a)(27) surveys the grants of regulatory authority contained in §§ 415(b), 422(a), and 426(a) of the amended (May 1972) FCMHSA, 30 U.S.C. §§ 925(b), 932(a), and 936(a) (1970 ed. and Supp. V, 1975), but neglects distinct mention of § 421(b)(2)(F) of the amended (May 1972) FCMHSA, 30 U.S.C. § 931(b)(2)(F) (1970 ed. and Supp. V, 1975), which refers to promulgated regulations without any direct grant of regulatory authority. Moreover, the parties’ assumption that the FCMHSA reference to the LHWCA provisions is specific has not been tested by any serious analysis of the interplay of the cross-referenced provisions. Specifically, we note that the parties have directed no attention whatsoever to the problem engendered by the FCMHSA incorporation of § 18(b) of the amended (October 1972) LHWCA, 33 U.S.C. § 918(b) (1970 ed. and Supp. V, 1975). Although we experience some hesitancy in focusing upon statutory sections which the parties themselves have not scrutinized or in relying upon canons of construction which the parties have apparently overlooked, we think it our task to determine the precise category of legislative reference — general or specific — into which the pertinent incorporating provision really falls. 1. 30 U.S.C. § 931(b) As Indicator Of General Reference In Usery, supra 428 U.S. at 8, 96 S.Ct. at 2889, the Supreme Court indicated that Congress intended that Part C black lung claims be processed under an applicable state workmen’s compensation law approved by the Secretary of Labor. In the absence of approved state programs, claims were to be filed with and adjudicated by the Secretary. Id. at 8-9. The Court observed, without detailed explanation, that the state compensation programs had to be approved under standards set forth in § 421 of the FCMHSA, 30 U.S.C. § 931 (1970 ed. and Supp. IV). See note 1 supra. A close examination of the statutory language of the various subsections contained in Section 421 amply supports the observation that the basic thrust of legislative intent was to assure adequate compensation for total disability or death due to pneumoconiosis. Adjudication of black lung claims by the Secretary was only an interim measure, for Congress wanted adequate state programs eventually to take over the benefits program. Thus, by virtue of § 421(b)(1) of the amended (May 1972) FCMHSA, 30 U.S.C. § 931(b)(1) (1970 ed. and Supp. V, 1975), Congress mandated the Secretary to publish and, where appropriate, to revise and republish a list of state workmen’s compensation laws providing adequate coverage. Also, by virtue of § 421(b)(2)(F) of the amended (May 1972) FCMHSA, 30 U.S.C. § 931(b)(2)(F) (1970 ed. and Supp. V, 1975), Congress authorized the Secretary to list as adequate a state law only if he found that its provisions, regulations or interpretations were consistent with the LHWCA provisions brought into the FCMHSA by the incorporating provision of § 422(a), 30 U.S.C. § 932(a) (1970 ed. and Supp. V, 1975), which was directly and expressly mentioned as applicable. We have already noted that the language of the amended § 422(a) suggests an inference that Congress intended to make applicable any LHWCA provisions promoting the speedy payment of benefits to entitled claimants. In this respect, the statutory language of § 421(b)(2)(F) is even a stronger indicator of the basic legislative intent. Like the incorporating clause itself, § 421(b)(2)(F) authorizes the Secretary to promulgate necessary or appropriate regulations. That is, after setting up federal criteria which must in any event be met by state compensation laws [subparagraphs (A) through (E)], Congress indicated a basic test of “consistency” between state and federal law. In our view, the legislative requirement of consistency rather than exact duplication of state law provisions and the LHWCA provisions raises some doubt as to whether the Congressional reference to the LHWCA was ever intended to constitute a formal adoption of those provisions. In their single-minded pursuit of the merits question, the parties have never attempted to explore fully the labyrinthine pathways set up by the numerous statutory cross-references. Nor have they attempted to establish any distinctions between a “referring,” an “incorporating,” or an “adopting” statute. Similarly, the leading treatise seemingly suggests that a “referring” statute almost invariably incorporates or adopts the provisions of a referenced statute. In light of an apparent consensus in that regard, we shall suppress our doubt regarding the formal adoption by the FCMHSA of the LHWCA provisions, even though the language of both § 421(b)(2)(F) and § 422(a) of the amended (May 1972) FCMHSA, 30 U.S.C. § 931(b)(2)(F) and § 932(a) (1970 ed. and Supp. V, 1975), suggests what might be deemed a mere conditional or tentative adoption. Nonetheless, the clear suggestion that Congress wanted the LHWCA provisions brought over and into the FCMHSA system only if the adopted sections or subsections speeded or assured the compensation of entitled claimants under Part C is extremely relevant. As other courts have recognized, Congress was dissatisfied with the results obtained under the statute as originally enacted. In Talley v. Mathews, 550 F.2d 911, 915 (4th Cir. 1977) the court observed that [ i]t was felt that many miners and survivors of miners for whose benefit the Act had been passed were failing to qualify for benefits under applicable standards. In response to this situation, Congress amended the Act in 1972 in order to facilitate the ability of claimants to qualify for black lung benefits. Whether the Congressional desire to facilitate qualification for benefits of miners or their survivors so blocked out any direct consideration of specific numerical LHWCA provisions as to make its enacted incorporating provision merely a reference to the general law on the subject of workmen’s compensation probably cannot be determined merely through resort to a verbal focus on consistency rather than upon exact duplication. We cannot fail to note, however, that the question of the applicability of the original or the amended LHWCA provisions plays an important role in the administration of the black lung benefits program, even apart from the question of which hearing officers are required for adversarial proceedings. If the Secretary does not know whether the original or the amended LHWCA provisions are the benchmark for the “consistency” between state and federal law he is required to maintain, he is obviously disabled from making the finding that Congress has set forth as a condition precedent for the listing of a state compensation law as providing “adequate coverage.” In view of the clear legislative intent to facilitate rather than to impede the payment of claims, we cannot impute to Congress any desire to leave the Secretary guessing as to which formulation of the LHWCA provisions he should apply in making the required finding of consistency. We recognize the force of the operators’ potential argument (never made in view of their failure to consider § 421(b)(2)(F) of the amended FCMHSA) that Congress never disabled the Secretary from developing the required list because it established the old LHWCA provisions as the benchmark for his finding. Similarly, we recognize our duty to give more than mere lip service to the Supreme Court’s recurring formulation of the canon respecting specific and descriptive legislative references. Accordingly, we must direct our inquiry to the serious LHWCA § 18(b) problem implicit in these and future cases. For in the course of close analysis of the links between the FCMHSA and the LHWCA, we have concluded that the cited subsection represents not only the strongest indication that the legislative reference was indeed general but also the major obstacle to that conclusion. 2. The Facial Incorporation Of § 18(b) Of The LHWCA Section 18(b) of the LHWCA, 33 U.S.C. § 918(b) (1970 ed. and Supp. V, 1975), was added to the Act by virtue of the Act of July 26, 1956, ch. 735, § 6, 70 Stat. 655. Essentially, the subsection deals with the collection of defaulted payments and the protection of the solvency of the special fund established by § 44 of the LHWCA [33 U.S.C. § 944.] The text of the subsection authorizes the Secretary of Labor to bring subrogation suits in order to recover for the benefit of the LHWCA § 44 [33 U.S.C. § 944] special fund the amount of any default. Indisputably, the express omission of § 18 of the LHWCA from the excluded list in both the original and reformulated “adopting” clauses of § 422(a) of the FCMHSA, see notes 11, 12 supra, creates the initial impression that § 18(b) of the LHWCA, 33 U.S.C. § 918(b) (1970 ed. and Supp. V, 1975), has been carried over into both the original and the reformulated FCMHSA. It is thus impossible to avoid the conclusion that the subsection was facially incorporated. Upon close analysis, however, it is readily obvious that it never made, and still makes, no rational sense to adopt or incorporate the referenced subsection in toto. The statutory text of § 18(b) of the LHWCA, 33 U.S.C. § 918(b) (1970 ed. and Supp. V, 1975), authorizes the Secretary’s subrogation suits for the benefit of the “special fund established in section 944 [of title 33]. . . . ” Yet both versions of the adopting clause in the FCMHSA (i. e., December 30,1969, and May 19,1972, formulations) specifically exclude § 44 of the LHWCA [33 U.S.C. § 944] from the black lung legislation. Making a mine operator liable for payment into a fund whose origin and purpose is completely extraneous to coal mining and which is specifically excluded from the FCMHSA makes no sense at all. Because the Secretary of Labor pays miners’ benefits out of appropriated funds which are legally distinct from the special LHWCA § 44 [33 U.S.C. § 944] fund, we think there never was nor is there now any solid reason for incorporating into either the original or the reformulated FCMHSA the LHWCA authorization for the Secretary’s subrogation suits. We are fortified in this conclusion by both legislative and administrative action. It would be presumptuous for this court to assume that Congress was not aware of the possibility that the Secretary might be required to pay benefits which were the direct liability of a mine operator. So acute was the awareness of the problem that Congress enacted section 424. Both the original and the amended indemnification provision against defaulting mine operators accomplish for the black lung program what § 18(b) of the LHWCA, 33 U.S.C. § 918(b) (1970 ed. and Supp. V, 1975), once accomplished or now accomplishes for the longshoremen’s and harbor workers’ compensation program. We note that the October 1972 LHWCA amendments appropriated a sum of $2,000,000 which the Secretary was mandated to deposit immediately into the special fund. See § 44(e) of the amended (October 1972) LHWCA, 33 U.S.C. § 944(e) (Supp. Y, 1975). Contrariwise, the May 1972 amendments to the FCMHSA appropriated to the Secretary such funds as might be necessary to carry out his responsibilities under the FCMHSA. See § 429 of the amended (May 1972) FCMHSA, 30 U.S.Cv § 939 (Supp. V, 1975). Nowhere in the statutory framework is there any indication that the Secretary was to use LHWCA appropriations for FCMHSA purposes. The Secretary’s regulations are consistent with our conclusion that § 424 of the amended (May 1972) FCMHSA, 30 U.S.C. § 934 (Supp. V, 1975), rather than § 44 [special fund] of the amended (October 1972) LHWCA, 33 U.S.C. § 944 (Supp. V, 1975), appropriately controls the recapture of defaulted mine operator payments. Thus, 20 C.F.R. § 725.333(b) has obviously been drafted in light of the language of the former rather than the latter statutory provision. Plainly, the regulation neither contemplates the payment of miners’ benefits out of the special LHWCA § 44 [33 U.S.C. § 944] fund nor limits the Secretary’s subrogation rights to a mere liability for payment into the fund. Whereas the text of § 18(b) authorizes the Secretary to enforce a liability of the employer for payment into the special fund, the pertinent language of 20 C.F.R. § 725.333(b) allows the Secretary to recapture the payments made pursuant to § 424 of the amended FCMHSA or defaulted LHWCA § 7 medical benefits. Inasmuch as there never was any reason either in 1969 or in May 1972 to incorporate § 18(b) of the LHWCA, 33 U.S.C. § 918(b) (1970 ed. and Supp. V, 1975), while excluding from the FCMHSA the cross-referenced § 44 of the LHWCA, 33 U.S.C. § 944 (1970 ed. or Supp. V, 1975), our doubts about the formal adoption of referenced provisions are enhanced. If Congress had been directing close attention to the interplay of the LHWCA sections which were facially taken into or excluded from the FCMHSA, it no doubt would have recognized that some verbal modification of the exact language of § 18(b) was necessary in order to provide the Secretary with a suitable recapture procedure. In view of other imperfect links in the statutory scheme such as we have already noted, we are inexorably led to the conclusion that Congress directed no real attention to checking or cross-checking the links between the two statutes. On balance, we are persuaded toward the view that § 422(a) of the amended (May 1972) FCMHSA, 30 U.S.C. § 932(a) (Supp. V, 1975), is a general reference masquerading as a specific and descriptive reference. Hesitating to attach controlling significance to consideration of the irrational links between the two statutes, we think it expedient to follow the sage advice of Justice Holmes and to avoid the Scylla of imputing to Congress an intent to adopt extraneous and irrational provisions while also ensuring that we do not fall into the Charybdis of blatant judicial legislation. Cf. Interstate Consolidated Street Railway Co. v. Commonwealth of Massachusetts, 207 U.S. 79, 86, 28 S.Ct. 26, 52 L.Ed. 111 (1907). Accordingly, though we see no reason at all for incorporating LHWCA § 18(b) into the FCMHSA while simultaneously excluding the internally cross-referenced LHWCA § 44, we shall respect the presumed integrity of legislative processes by holding that both versions of the FCMHSA incorporating clause do adopt and incorporate that subsection. Such a holding is in no way inconsistent with our conclusion that the Congressional failure to check and crosscheck the consequence of each and every LHWCA inclusion and exclusion, a number of which present major construction problems, warrants the judicial ruling that the legislative reference is general. We are persuaded that a court does not overstep the legitimate boundaries of its essentially adjudicative function by resorting to the established canons of construction in order to arrive at the legislative intent of technically defective draftsmanship. At this point, however, we must note that our characterization of § 422(a) of the amended (May 1972) FCMHSA, 30 U.S.C. § 932(a) (Supp. V, 1975), as a general legislative reference does raise a different problem, again unnoticed by the parties. As previously noted, the distinctive legal effect of a general legislative reference is that subsequent amendments to the incorporated statutory provisions are read into the adopting statute. In the present cases, the major obstacle to the characterization of the pertinent incorporating provision as a general one is the possibility that the Ninety-Second Congress has effectively transformed the usual and customary allocation of judicial business by making this court one of original jurisdiction. As we have noted, our threshold task (and unfortunately for the reader we are still at the threshold) is to determine whether this court possesses review jurisdiction. The text of § 18(b) of the LHWCA, 33 U.S.C. § 918(b) (1970 ed. and Supp. V, 1975), contains a direct and specific reference to the very subsection which the Director asserts as our jurisdictional basis. Because the language of § 18(b) has not been amended since its insertion into the LHWCA over twenty years ago, we face no problem as to whether its unamended or amended version is to be controlling. We think it clear that the original Congressional intent lying behind the phraseology allowing “a proceeding in the name of the Secretary of Labor under section 918 of this title or under subsection (c) of section 921 of this title, or both ” contemplated maintaining the Secretary’s subrogation suits in the federal district courts. The October 1972 amendments to the LHWCA created the Benefits Review Board. See note 9 supra. The addition of a new subsection necessitated a relabeling of the remaining subsections. Thus, former subsection (c) became the new subsection (d). The text of new § 21(d) of the amended (October 1972) LHWCA, 33 U.S.C. § 921(d) (Supp. V, 1975), is identical with the text of old § 21(c) of the LHWCA, 33 U.S.C. § 921(c) (1970 ed.). Yet Congress inexplicably neglected to modify in any respect the language of the old § 18(b) of the LHWCA, 33 U.S.C. § 918(b) (1970 ed. and Supp. V, 1975). A literal reading of the reformulated LHWCA, 33 U.S.C. § 901 et seq. (1970 ed. and Supp. V, 1975), thus gives the impression that the Secretary’s subrogation suits can be maintained in either the federal district courts or the courts of appeals. And the pertinent administrative regulation, viz., 20 C.F.R. § 725.333(b), see note 31 supra, is also susceptible to the interpretation that the courts of appeals are a proper tribunal for the recovery of defaulted payments. Obviously, Congress made a technical mistake with respect to the October 1972 LHWCA amendments. It left unmodified the cross-referencing language of § 18(b) [i.e., “under subsection (c) of section 921 of this title, or both”] at the very time it was assigning new letters to the subsections of § 21 of the LHWCA, 33 U.S.C. § 921 (Supp. V, 1975). There is absolutely no reason for thinking that Congress wanted the courts of appeals to exercise original jurisdiction in the Secretary’s subrogation suits for the benefit of the special fund regulated under § 44 of the LHWCA [33 U.S.C. § 944]. The only realistic reading of the amended (October 1972) LHWCA, 33 U.S.C. § 901 et seq. (1970 ed. and Supp. V, 1975), requires a substitution of the correct subsection letters. Thus, a court must respond to the Congressional oversight by reading § 18(b) of the LHWCA, 33 U.S.C. § 918(b) (1970 ed. and Supp. V, 1975), as authorizing subrogation suits “under section 918 of this title or under subsection (d) of this title, or both. . . . ” Similarly, the Secretary’s formulation of 20 C.F.R. § 725.333(b) also fails to deal with the Congressional failure to rewrite § 18(b) so as to conform its language to the distinct subsections of the new LHWCA § 21. The administrative failure to focus any attention at all upon the problem is also inexplicable. Inasmuch as the Secretary and the Director have consistently adhered to the view that the amended provisions of the LHWCA rather than the earlier formulations were operative, the administrative refusal or neglect to make the suggested correction could indicate a view that the Secretary thinks that the courts of appeals are appropriate tribunals to hear the Secretary’s subrogation suits. In view of the normal distribution of trial and appellate responsibilities and in view of the complete absence of any legislative history demonstrating Congressional intent to assign basic trial responsibilities to the various courts of appeals, we are not inclined so to rule. Nonetheless, the internal cross-referencing within the amended LHWCA seems to give the Secretary an option (“or both”) of maintaining subrogation suits either in the federal district courts or in the courts of appeals. However, we think it so obvious that the never-revised § 18(b) must now be read as cross-referencing subsection (d) of the amended (October 1972) LHWCA, 33 U.S.C. § 921(d) (Supp. V, 1975), that we shall read the statute in that fashion. That being done, there is no real problem that the amended (May 1972) FCMHSA, 30 U.S.C. § 901 et seq. (1970 ed. and Supp. V, 1975), or the amended (October 1972) LHWCA, 33 U.S.C. § 901 et seq. (1970 ed. and Supp. V, 1975), vests the courts of appeals with original jurisdiction in subrogation suits. Instead, the problem is whether our substituted and obviously correct reading of the cross-referencing internal to the LHWCA comports with the traditional limits on judicial action. This additional cross-referencing mistake internal to the October 1972 LHWCA amendments not only illuminates the fundamental soundness of the canon of construction first adopted by the Supreme Court in Kendall, supra, and subsequently reaffirmed both In re Heath and Hassett, supra, but presents a situation wherein it must be allowed to operate. In sum, application of the canon that a “specific and descriptive” reference takes the referred-to provision in its unamended formulation corrects the Congressional failure to modify the language of § 18(b) of the LHWCA, 33 U.S.C. § 918(b) (1970 ed. and Supp. V, 1975), without intruding the court into the legislative process. For the reasons set forth in part I of this opinion, we hold that this court has jurisdiction over the Director’s petitions for review by virtue of § 21(c) of the amended (October 1972) LHWCA, 33 U.S.C. § 921(c) (Supp. V, 1975). We turn now to the distinct question whether the Director is a proper party-petitioner. II. The Director As A Party-Petitioner A second major issue in these consolidated cases is whether the Director is a proper party-petitioner. As previously noted, the operators/carrier respondents earlier filed a motion to dismiss, arguing that the Director’s failure to name the BRB as respondent contravened the requirement of Rule 15(a), Fed.R.App.P., 33 U.S.C. § 921a (Supp. V, 1975), and 20 C.F.R. § 725.-402(d). On September 15, 1976, a single judge of this court, subsequently assigned as a member of this panel, denied the motion without opinion. In their argument to the merits, however, the operators/carrier respondents renew the argument. Inasmuch as the reported decisions indicate that the courts of appeals have adopted disparate analyses of the problem, we think it necessary to set forth our reasons for allowing the Director’s petitions for review in the instant cases. Because the question of allowing either the BRB or the Director to appear as a respondent, as amicus curiae, or as a Rule 24(b) permissive intervenor is not squarely before the court at this time, there is no need to rule formally on those issues. Nonetheless, the distinct question of the propriety of allowing the Director to appear as party-petitioner bears a close relationship to those unsettled questions. A. The BRB As Respondent A number of reported decisions have focused on the question whether the Benefits Review Board should be a party-respondent in a 33 U.S.C. § 921(c) review proceeding. The opinions in those cases have grappled with the unusual formulation of the statutory section and have pointed in different directions. Of the courts of appeals facing the question, all but the Second Circuit generally agree that the BRB is not a proper respondent. See, e.g., I.T.O. Corporation of Baltimore and Liberty Mutual Insurance Company v. Benefits Review Board, United States Department of Labor & Adkins, 542 F.2d 903 (4th Cir. 1976) (en banc), cert. filed, 45 U.S.L.W. 3417 (November 24, 1976) (No. 730); Nacirema Operating Co., Inc. v. Benefits Review Board, 538 F.2d 73 (3rd Cir. 1976); Offshore Food Service, Inc. and Aetna Casualty Surety Company v. Benefits Review Board, 524 F.2d 967 (5th Cir. 1975); McCord v. Benefits Review Board, United States Department of Labor and Cephas, 168 U.S.App.D.C. 302, 514 F.2d 198 (1975). The Second Circuit, like the First, has not found it necessary to rule on the question. However, in a scholarly note outlining the contours of the problem, Judge Friendly, in Pittston Stevedoring Corporation, supra, 544 F.2d at 42 n.5, suggested that “the BRB is the proper agency respondent for review in the court of appeals, although the Solicitor of Labor could be designated to represent it.” Technically, Judge Friendly’s suggestion was dictum, inasmuch as the panel “deem[ed] it best to defer resolution of this question to a case where decision on this point is essential Id. However, we think it an important dictum. Hopefully, the Secretary will follow Pittston’s suggestion that the Department of Labor “tidy up its regulations.” B. The Director As Respondent The distinct question whether the Director is a proper respondent, as opposed to the BRB, has also drawn different responses. In I.T.O., supra at 909, the Fourth Circuit, sitting en banc, ruled that it would stand firm in its conclusion that “the Director is not automatically a respondent in a review proceeding under § 921(c).” It elaborated on a comment made in the earlier panel opinion, see 529 F.2d 1080, 1089, that it was not deciding that “a court of appeals may not, in a proper case, permit intervention by others [including the Director] who have an interest at stake ..” 542 F.2d at 909. For some reason left unexpressed, the en banc court deleted the panel’s assertion that it was not deciding that a court of appeals may not allow others to “appear as petitioners or respondents as their interests appear.” 529 F.2d at 1089. Clearly, however, the full court did rule, as had the panel, that neither the BRB nor the Director were proper parties to a § 921(e) proceeding. It indicated a willingness to allow permissive intervention, signalling that a Fed.R.Civ.P. 24(b) motion would ordinarily be granted, but effectually ruled that only through the grant of such a motion could the Director properly participate in a 33 U.S.C. § 921(c) review proceeding. See id. at 909. Assumins that the Fifth Circuit became aware of the en banc I.T.O. opinion prior to its decision in Jacksonville Shipyards, Inc., and Aetna Casualty & Surety Company v. Perdue and Director, Office of Workers’ Compensation Programs, United States Department of Labor, 539 F.2d 533 (5th Cir. 1976), another approach to the problem appears. The Ayers Steamship Company petitioners, as parties to one of the five consolidated cases, alleged in their brief that the Director was not a proper respondent in the court of appeals, although he could appear as amicus curiae. Essentially, the petitioners were seeking as relief the dismissal of the Director as a party and his addition as amicus curiae. However, they had not earlier sought this relief by a motion pursuant to