[39] BECKER, Circuit Judge, dissenting.

I agree with the majority's observation that the statutory background is complicated. I disagree with its conclusion that the meaning of the relevant statutory and regulatory language is plain. Therefore, in order to determine whether a mine operator may transfer liability for the black lung benefits of its former employee to the Black Lung Disability Trust Fund (the "Fund"), I find it necessary to delve further into the statutory background of the Black Lung Benefits Amendments of 1981 (the "1981 Amendments") than does the majority. In my view, the intent of Congress, which ultimately governs this case, can be discerned only from that part of the story behind the 1981 Amendments that the majority leaves untold.

The untold story compels several relevant conclusions. First, the true source of the 1981 Amendments, the agreement that the mine operators, their insurers, and the mineworkers' unions reached at Congress's behest in an effort to save the black lung benefits program from bankruptcy, and which Congress blessed by enacting it, clearly contemplated the transfer of claims such as that of Helen Mining Company's ("Helen Mining's") former employee, John Burnsworth, to the Fund. Additionally, it makes utterly no sense to make the transfer of liability from a mine operator to the Fund turn upon a request for transfer by a miner who already is receiving benefits and therefore has absolutely no interest in effecting this shift in liability — but that is what the majority does. It also is unrealistic to believe that Congress intended such a strange result. I therefore believe that responsibility for the claim at issue should have been transferred to the Fund and that the majority has reached the wrong result in this case.

From my reading of Director, Office of Workers' Compensation Programs v. Quarto Mining Co., 901 F.2d 532 (6th Cir. 1990), the Sixth Circuit reached a result in direct opposition to that which the majority reaches today. Further, as I read Old Ben Coal Co. v. Luker, 826 F.2d 688 (7th Cir. 1987), the Seventh Circuit arrived at a holding that effectively is irrelevant to that of the majority here. Because I find the majority's analysis of the relevant statutory framework less than persuasive and believe that the result reached by the Sixth Circuit is more consistent with the intent behind the 1981 Amendments, I respectfully dissent.

I. DOES THE APPLICABLE STATUTORY AND REGULATORY LANGUAGE, BY ITS PLAIN MEANING, FORECLOSE HELEN MINING'S TRANSFER EFFORT?

I have no quarrel with the majority that Helen Mining has standing to challenge the Benefits Review Board's affirmance of the administrative law judge's decision denying transfer of Burnsworth's claim to the Fund. I therefore begin with an assessment of the majority's conclusion that the applicable statutory and regulatory language by its plain meaning forecloses Helen Mining's transfer effort. I believe that conclusion to be unsound.

The majority begins its analysis of 30 U.S.C. § 932(c)(2), the key transfer provision of the 1981 Amendments, by quoting the statutory language. See Majority Op. at 1273. The majority, however, stops parsing this ostensibly decisive language when it encounters the term "claim denied," quickly concluding that liability for a miner's claim is to be transferred to the Fund if the claim is a "claim denied." See id., 1273. Having drawn this first conclusion, the majority immediately shifts its attention to 30 U.S.C. § 902(i) — the provision of the 1981 Amendments that defines "claim denied." See id. The majority then hastily draws the conclusion that Burnsworth's various Part B and Part C claims do not clearly fall within the ambit of any of the definition's subsections. With this second element of its reductive syllogism in place, the majority concludes that liability for Burnsworth's benefits cannot transfer to the Fund, because, most relevantly, "Burnsworth's Part B claim, though denied by Social Security, had not been subsequently granted." Id. at 1273.

If examined with more deliberation, however, the statutory language upon which the majority relies actually undermines its conclusion. The majority fails to observe that the transfer provision that it quotes does not simply conclude with the statement that no benefit for a black lung claim shall be payable by a mine operator if the benefit "was the subject of a claim denied before March 1, 1978." 30 U.S.C. § 932(c)(2). The provision concludes, rather, with the statement that a benefit shall not be payable by a mine operator if it was the subject of a claim denied before March 1, 1978, "which is or has been approved in accordance with the provisions of section 945 of this title." Id. (emphasis added). The emphasized language of this clause, over which the majority glides, thus clearly contemplates that liability for a black lung claim may transfer to the Fund not only if the claim has, at some point in the past, been approved in accordance with the provisions of 30 U.S.C. § 945, but also if the claim is, at some point in the future, so approved.

When this clause of the transfer provision is borne in mind, the statutory definition of "claim denied" is anything but dispositive of the issue whether liability for Burnsworth's black lung benefits may transfer to the Fund. As the majority notes, subsections (2)(A) and (B) of the section of the 1981 Amendments defining "claim denied," 30 U.S.C. § 902(i), do not, by their terms, apply to Burnsworth's claim and hence to Helen Mining's transfer effort. See Majority Op. at 1273, 1274. The only subsection of this definitional provision that is relevant to the transfer issue that Helen Mining has raised is subsection 902(i)(1), which simply states that "[f]or the purposes of [the transfer provision of the 1981 Amendments] . . ., the term `claim denied' means a claim . . . denied by the Social Security Administration." 30 U.S.C. § 902(i). This subsection — far from dictating the conclusion that, because Burnsworth's Part B claim was not subsequently granted by the Social Security Administration (the "SSA"), liability for his benefits may not transfer to the Fund — is facially mute on the transfer issue. When contextually linked to the clause of the transfer provision that envisions prospective, as well as retrospective, approval of the transfer of liability for benefits to the Fund, moreover, this definitional subsection suggests that Burnsworth's claim, at some unspecified future point, actually may transfer.

A close reading of the 1981 Amendments' transfer provision and definition of "claim denied" requires, at the very least, immediate resort to 30 U.S.C. § 945(d), the provision of the Black Lung Benefits Reform Act of 1977 (the "1977 Reform Act") in accordance with which, the 1981 transfer provision states, a claim must be approved in order to transfer to the Fund. See 30 U.S.C. § 932(c)(2). The provision states, in pertinent part, that

[t]he Secretary of Health and Human Services shall promptly notify each claimant who has filed a claim for benefits under part B of this subchapter and whose claim is either pending on March 1, 1978, or has been denied on or before that date, that, upon the request of the claimant, the claim shall be either —

(A) reviewed by the Secretary of Health and Human Services . . .; or

(B) referred directly by the Secretary of Health and Human Services to the Secretary of Labor

. . . .

30 U.S.C. § 945(a)(1).

Read in the context of the 1981 Amendments, section 945 only compounds statutory ambiguity on the issue whether Helen Mining may effect a transfer of Burnsworth's claim to the Fund. The language of section 945 clearly provides for a review of previously denied claims — but a review that already was to have taken place by the time that the 1981 Amendments were enacted. In the context of the 1981 transfer and definitional provisions, the most logical interpretation of the language of section 945 might appear to be that Burnsworth's originally denied Part B claim would be eligible for transfer only if, pursuant to his request, the Secretary of Health and Human Services had in the past reviewed (and approved) it. This is not a viable contextual interpretation of section 945, however, because it flies in the face of the transfer provision, which speaks of the transfer of a claim "which is" — i.e., in the present or the future — approved in accordance with the provisions of section 945. See 30 U.S.C. § 932(c)(2). Neither the transfer provision nor the definition of "claim denied" in the 1981 Amendments explains how a claim, such as Burnsworth's, which has been denied by the SSA, is at present or in future to be approved in accordance with section 945, which establishes a plan for claim reviews that already has been implemented.

I believe that because the majority fails carefully to juxtapose the language of section 945 with the language of the 1981 transfer provision that references this section, it erroneously: (1) makes much of Congress's 1977 substitution, in section 945, of the requirement that the claimant request review of a Part B claim that previously had been denied in place of language in an earlier draft of the section that provided that Part B claims, like Part C claims, were automatically to be reviewed; and (2) arrives at the unwarranted conclusion that Congress, in 1981, "did not intend that mine operators could take advantage of the review provision of the Reform Act for Part B claims." See Majority Op. at 1275. For, if the language of section 945 is read in the immediate context of the 1981 transfer and definitional provisions, the election requirement of this section scarcely appears to clarify the statutory ambiguity as to who may effect the present or future transfer of a claim — and how this transfer may be accomplished. As the majority itself notes, "inasmuch as the transfer provisions did not exist when the Reform Act was enacted, Congress could hardly have provided otherwise" than for elected review at the behest of a claimant. Majority Op. at 1275. The language of this 1977 provision also fails to dictate the conclusion — plainly or otherwise — that Congress in 1981 intended that the mine operators could not take advantage of the 1977 provisions. The language of section 945, coupled with the language of the transfer provisions, points, rather, to a gap in the black lung benefits legislation, which, if not clearly bridged by the regulations construing these provisions, necessitates a closer examination of the legislative history of the 1981 Amendments to discern the controlling Congressional intent.

Like the majority, I regard the SSA and Department of Labor (the "DOL") regulations construing the election requirement of section 945 as potentially resolving any ambiguity that the 1981 transfer provision, in juxtaposition with this 1977 provision, creates as to who may transfer a claim to the Fund and by what means. I diverge from the majority, however, in my reading of these regulations.

As the majority emphasizes, both the SSA and the DOL regulations implementing the election requirement in the wake of the 1977 Reform Act provide that a claimant who previously has had both Part B and Part C claims denied will lose the right to review of the denied Part B claim if he or she "does not respond to notification of his or her right to review [by the SSA] . . . within 6 months . . . unless the period is enlarged for good cause shown." 20 C.F.R. § 410.705(c) (1990); 20 C.F.R. § 727.103(c) (1990); see also Majority Op. at 1273-1274. The majority, through the determinative prism of its conclusion that the language of the 1981 Amendments forecloses Helen Mining's transfer effort, reads this regulatory language solely to mean that a showing of good cause functions to enlarge the period in which a claimant may exercise the right to have a denied Part B claim reviewed. See Majority Op. at 1276. I cannot conclude, however, that the language of these regulations is, by its plain meaning, so definite. Particularly in the larger temporal context of the 1981 Amendments, the "period" that may be enlarged by a showing of good cause may refer not only (and narrowly) to the period in which a claimant may elect review, but also (more broadly and simply) to the period in which a claim subject to transfer may be reviewed. "Period" may also refer to the period, enlarged for good cause, in which a claimant retains a right of review that he or she may or may not personally have to exercise in order for a transfer of benefit liability to the Fund to be effected.

Because I believe that the language of the regulations construing the election requirement of the 1977 Reform Act is more indeterminate than the majority would have it, I also cannot conclude that the regulation construing the 1981 transfer provision resolves any ambiguities in the statute and mandates that Helen Mining may not, upon a showing of good cause, effect a transfer of Burnsworth's claim to the Fund. As the majority notes, Majority Op. at 1274 n. 6, the regulation accompanying the transfer provision provides that

No claim filed with and denied by the Social Security Administration is subject to the transfer of liability provisions unless a request was made by or on behalf of the claimant for review of such denied claim under [ 30 U.S.C. § 945]. Such review must have been requested by the filing of a valid election card or other equivalent document with the Social Security Administration in accordance with [ 30 U.S.C. § 945(a)] and its implementing regulations. . . .

20 C.F.R. § 725.496(d) (1990). To my mind, this regulation simply directs the statutory constructionist back to the language of section 945 and of its implementing regulations. As I have explained previously, I do not believe that the language either of this provision or of its implementing regulations fills in an interstice in the black lung statutory scheme that leaves unresolved the issue whether, upon a showing of good cause, Helen Mining may effect a transfer of liability for Burnsworth's claim to the Fund.

I am mindful that "where [Congress's] will has been expressed in reasonably plain terms, `that language must ordinarily be regarded as conclusive.'" Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S.Ct. 3245, 3249, 73 L.Ed.2d 973 (1982) (quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)); see also Malloy v. Eichler, 860 F.2d 1179, 1183 (3d Cir. 1988) ("Where the language of the statute is clear, only `the most extraordinary showing of contrary intentions' justif[ies] altering the plain meaning of a statute." (citation omitted)). In contrast to the majority, I simply cannot conclude that Congress has, in the statutory framework that controls this case, clearly expressed its will as to how the issue that Helen Mining presents ought to be resolved. I believe, rather, that this case highlights a lacuna in Congress's black lung benefits legislation and that it is "the very touchstone of judicial responsibility in dealing with such [a] statutory [interstice] . . . to ascertain, to the best extent possible, the Congressional intent, and to interpret the statute in light of the statutory scheme." Glus v. G.C. Murphy, 629 F.2d 248, 263 (3d Cir. 1980) (Sloviter, J., dissenting) (elaborating upon the differing judicial functions of creating federal common law and interpreting statutes), vacated and remanded sub nom. Retail, Wholesale and Department Store union, AFL-CIO v. G.C. Murphy Co., 451 U.S. 935, 101 S.Ct. 2013, 68 L.Ed.2d 321 (1981), rev'd in part on remand, 654 F.2d 944 (3d Cir. 1981); see also United States v. Vastola, 915 F.2d 865 (3d Cir. 1990) ("Where there are statutory interstices in the sense that the statute's language does not explicitly resolve an issue which has arisen in the application of the statutory scheme, a court obviously has the power to decide the issue consistently with the legislative intent."). It is to this task of ascertaining the Congressional intent behind the 1981 Amendments and analyzing the transfer issue that Helen Mining has raised in the light of the statutory scheme that I next turn.

II. THE OTHER HALF OF THE LEGISLATIVE STORY

As the majority observes, the Black Lung Benefits Reform Act of 1977 greatly liberalized the eligibility criteria for black lung benefits, wreaking havoc in the coal industry. See Lopatto, The Federal Black Lung Program: A 1983 Primer, 85 W.Va. L.Rev. 677, 696-98 (1983). Insurance companies increasingly refused to cover the new, numerous, and unanticipated operator liabilities arising from the 1977 Reform Act's liberalized standards. See id. These liabilities included liabilities for claims for which, prior to the 1977 legislation, the federal government would have been presumed liable. See H.R.Rep. No. 1410, 96th Cong., 2d Sess. 3 (1980) (1977 amendments to black lung benefits program rendered operators and, in default, the Fund, liable for claims approved under new review provisions regardless of whether claims originally were filed in period of presumed federal liability). Litigation between mine operators and their insurers followed, and, as the insurance companies won coverage lawsuits, the basic funding mechanism created by the 1977 Reform Act was jeopardized. See Lopatto, supra, at 697-700.

The majority acknowledges that the problems in the coal and coal insurance industry created by the 1977 Reform Act's liberalized standards spurred the 1981 Amendments. The majority, however, fails to take note either of the unusual process by which the 1981 Amendments evolved or of Congress's intent in enacting them. Indeed, the absence of any legislative records of a conference or proposed bills preceding enactment of the 1981 Amendments points to the considerable role that mine operators, insurers, and labor played in evolving this legislation. Although the 1981 Amendments appear mainly to have been drafted by the DOL, they clearly constitute a "consensus package" arrived at by these various groups in an effort to preserve black lung benefits for afflicted miners and to ensure the continued solvency of both mine operators and the Fund. See id. at 677.

That the 1981 Amendments constitute an accommodation reached by mine operators, their insurers, and labor is overwhelmingly borne out by records of the House and Senate debates on this legislation. See 127 Cong.Rec. 31,508-13 (1981) (1981 Amendments enjoy support of "the administration and a broad coalition of coal producers, mineworkers, and others affected by the legislation") (statement of Rep. Rostenkowski), (1981 Amendments represent "a compromise on the part of almost all the interested parties") (statement of Rep. Conable), (1981 Amendments "preserve the program revisions which have been worked out with careful consideration of all interests involved and . . . have the support of coal operators, insurance companies, and the United Mine Workers") (statement of Rep. Benedict), 127 Cong.Rec. at 31,958, 31,965, 31,979-80 (1981 Amendments are supported by "alliance" comprising the administration, industry, insurers, and unions) (statement of Sen. Chafee), (1981 Amendments have been endorsed by "the administration, the coal industry, and the United Mine Workers" and represent "much deliberation and compromise by all parties concerned") (statement of Sen. Ford), (1981 Amendments represent culmination of "a long counseling period" to promote consensus among parties, such as the National Coal Association, the United Mine Workers, and the American Insurance Association, "recognizing the human element and the financial considerations which are involved") (statement of Sen. Randolph).

The 1981 Amendments doubled the excise tax on coal (largely paid by local purchasing electric companies) that financed the Fund, and transferred liability from mine operators to the Fund for a number of black lung claims that the SSA and the DOL originally denied but, under the 1977 Reform Act, subsequently approved. See generally 127 Cong.Rec. at 31,506, 31,508-13. The nub of the legislative package as it pertains to this case is that it relieved mine operators (and their insurance carriers) of the bulk of the unanticipated financial responsibility for black lung benefits that resulted from applying the 1977 Reform Act's liberalized criteria to previously denied claims. See id.; see also 127 Cong. Rec. at 31,958, 31,960-61. The 1981 Amendments provided that the burden for these benefits was to be shouldered by the Fund, financed indirectly by the new tax.

As is evidenced by the relative brevity of the legislative debate on the 1981 legislative accord — a debate in which the transfer provisions notably were not touched upon — Congress virtually rubber stamped the accommodation reached by the mine operators, their insurers, and labor. See 127 Cong.Rec. at 31,506, 31,958-82. As is explained in the margin, Congress appears, in particular, to have rubber stamped the accommodation that these parties reached concerning the transfer provisions in the 1981 Amendments. It is clear, moreover, that Congress, in enacting this accommodation, was motivated by two main concerns.

One obvious concern was to return the Fund to solvency. See Subcommittee on Oversight, Committee on Ways and Means, U.S. House of Representatives, 97th Cong., 1st Sess., Report and Recommendations on Black Lung Disability Trust Fund (Comm. Print 1981) [hereinafter Report on the Fund]; 127 Cong.Rec. at 31,506-14, 31,958-82. The other concern, which takes precedence in the House Committee on Education and Labor's Report on the 1981 Amendments, was to "correct an inequity that occurred out of the 1977 Amendments to the Black Lung Benefits Act. . . . [that] impacts significantly and adversely on coal operators and their commercial insurers" — namely, their unanticipated liability for claims granted under the liberalized standards of the 1977 Reform Act. H.R.Rep. No. 1410, 96th Cong., 2d Sess. at 1; see also Report on the Fund, supra, at 28 (transferring liability for claims previously denied and subsequently reopened and approved under standards of the 1977 Reform Act would "rectify the inequity of making mine operators liable for claims that were approved under retroactively-applied benefit entitlement standards").

This is the legislative story behind the 1981 Amendments that the majority fails to read and apply. I believe, as I discuss next, that it is only within the overarching context of this story that the issue whether Helen Mining may effect a transfer of Burnsworth's claim to the Fund can, within the subcontext of the statutory scheme, be correctly resolved.

III. THE TRANSFER ISSUE IN THE LIGHT OF THE LEGISLATIVE HISTORY AND THE STATUTORY SCHEME

The issue before us, set against the background that I have discussed at length, is whether it is consistent with the statutory scheme of the black lung benefits program to permit Helen Mining to effect a transfer to the Fund of liability for a claim (1) of the type that Congress intended should transfer to the Fund, and (2) as to which good cause has been found for the claimant's failure timely to elect the review on which a transfer ordinarily is conditioned. I conclude not only that it is consistent with the statutory scheme to permit mine operators, such as Helen Mining, to effect the transfer to the Fund of claims such as Burnsworth's, but also that it would be patently unreasonable, in light of this statutory scheme, to prohibit operators from seeking transfers of these sorts of claims.

Burnsworth's original Part B claim, which was denied by the SSA prior to March 1, 1978, clearly is the type of claim that (if approved under the liberalized criteria of the 1977 Reform Act) the mine operators, their insurers, and, ultimately, Congress, intended should transfer to the Fund. Under the SSA and DOL regulations implementing the 1977 Reform Act, moreover, if a claimant such as Burnsworth, with duplicate Part B and Part C claims, requested review of his Part B claim (or had the failure timely to request review excused for good cause), the claimant's part B claim clearly would transfer, thereby extinguishing the operator's potential liability for his Part C claim. See 20 C.F.R. §§ 410.705(c) 727.103(c). SSA's and DOL's twin regulations governing duplicate claims strongly suggest that these agencies viewed duplicate claims, such as Burnsworth's, as retroactive, unanticipated liabilities that Congress intended should be transferred to the Fund.

It is central to emphasize that the administrative law judge (the "ALJ") determined, based on Burnsworth's own testimony, that good cause existed for Burnsworth's failure to file an election card with the SSA for review of his Part B claim. As the majority notes, the ALJ ultimately concluded that Helen Mining could not effect a transfer of liability to the Fund for the benefits that the DOL granted to Burnsworth under Part C. See Majority Op. at 1274 n. 7. The ALJ, however, based this ultimate conclusion, as did the Benefits Review Board its affirmance, on Chadwick v. Island Creek Coal Co., 7 Black Lung Rep. (MB) 1-833 (Ben.Rev.Bd. 1985) — a decision that I believe the majority, agreeing with the Seventh Circuit, rightly rejects. See Majority Op. at 1275 n. 7 (citing Old Ben Coal Co., 826 F.2d at 693-98).

I therefore believe that the majority mischaracterizes the ALJ's decision as a rejection of Helen Mining's "position" that a showing of good cause obviates the need for Burnsworth personally to seek the transfer of liability for his benefits to the Fund. Id. at 1274-1275. I also believe that the majority errs in thus glossing over the ALJ's good cause determination. See id. at 1274-1275. This factual determination is entitled to considerable deference and may be set aside only if it is not supported by substantial evidence. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971); Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1950); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). Although the issue that faces us primarily is one of statutory interpretation, I nonetheless think that this "good cause" determination is entitled to far more attention than the majority accords to it.

As I repeatedly have emphasized, the transfer provision of the 1981 Amendments, 30 U.S.C. § 932(c)(2), provides that liability for a black lung claim may transfer to the Fund not only if it has, in the past, been approved by the SSA, but also if it is, in the present or in the future, so approved. The SSA's "good cause" regulation, 20 C.F.R. § 410.704(d), which governs approval for transfer in the absence of a timely election, functions as an integral part of this transfer provision. Logically, the present or future "good cause" transfer of a claim to the Fund, for which the transfer provision and this regulation provide, would only be sought by a mine operator. Indeed, if Helen Mining is not free to raise this claim with us, it is difficult to see how transfer cases involving duplicate claims ever could be litigated. Because the primary interest of claimants such as Burnsworth is eliminated upon the approval of their Part C claims and the receipt of benefits, duplicate claimants have no subsequent incentive to elect review and to press good cause issues personally. Mine operators, such as Helen Mining, faced with unanticipated liabilities for Part C claims, which their insurance carriers may refuse to cover, continue to have, of course, a considerable stake in pressing good cause issues and seeking the transfer of these claims.

To my mind, it is illogical to construe a statutory scheme that provides for present and future "good cause" transfers of claims to the Fund so as to: (1) foreclose transfers instigated by the only parties who have an interest in effecting them; and (2) permit transfers only by parties who have no interest in seeking them. This construction of the statutory scheme seems to me to fly in the face of the long-standing rule of statutory construction that "interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative intent are available." Griffin, 458 U.S. at 575, 102 S.Ct. at 3252 (citing United States v. American Trucking Ass'ns., Inc., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940), and Haggar Co. v. Helvering, 308 U.S. 389, 60 S.Ct. 337, 84 L.Ed. 340 (1940)); see also Walling v. American Stores Co., 133 F.2d 840, 844 (3d Cir. 1943) ("[W]e should not be justified in a literal application of [statutory] words where they would lead to a result plainly at variance with the policy of the legislation as a whole.").

Yet this, I conclude, is the construction of the statutory scheme at which the majority arrives today. I believe that it would show the appropriate deference to the ALJ's finding of good cause in this case and would be more consistent both with the black lung statutory scheme, in general, and with the 1981 Amendments, in particular, to hold that the establishment of good cause for a claimant's failure to request the reopening of a denied Part B claim during the six-month statutory period functions as a surrogate for a transfer request personally filed by a claimant.

It is important to note that such a holding would not implicitly adopt for claimants such as Burnsworth, with concurrently reviewable Part B and Part C claims, an "automatic election," effectively waiving the statutory and regulatory requirement of a claimant's timely request for review of a Part B claim (and, in its absence, a showing of good cause). Permitting a showing of good cause to obviate the need for a claimant's personal request that a Part B claim be reopened does not endorse such an "automatic" or "implicit" election theory, because it is possible that a duplicate claimant, such as Burnsworth, would not meet the good cause criteria. Further, as my previous analysis suggests, I believe that it would be more consistent with the enacted accommodation reached by mine operators, their insurers, and labor, as well with Congress's intent to relieve mine operators of unanticipated liability for claims such as Burnsworth's, to hold that the establishment of good cause functions as a surrogate for a transfer request personally filed by the claimant.

In addition, I disagree with the majority that its conclusion "is at least partially supported by Old Ben," 826 F.2d at 688, that Quarto, 901 F.2d at 532, "holds little more than Luker," and that both decisions are "inapposite in a case in which the claimant remained uninvolved in the transfer dispute." Majority Op. at 1277, 1277 n. 8. Although I believe that the holding of Old Ben is, as the majority ultimately concludes, irrelevant to this case, I do not believe that the Seventh Circuit's decision in Old Ben by any means supports the majority's decision here. I believe, however, that the Sixth Circuit in Quarto reached a decision that is highly relevant to cases, such as this one, in which the claimant remains uninvolved in the transfer dispute, and that the holding in Quarto directly contravenes that which the majority reaches today, thus creating a circuit split.

In Old Ben, the court briefly considered, as the majority notes, whether good cause had been established for the claimant's failure to request review, under the liberalized criteria of the 1977 Reform Act, of his previously denied Part B claim. 826 F.2d at 688. In addressing this issue, the Old Ben court tersely and by no means explicitly inquired whether the affidavit from the widow of the duplicate claimant, requesting that the SSA again review her late husband's Part B claim, sufficed to reopen the claim. See id. at 697. In the footnote pertaining to the good cause issue, from which the majority quotes at length, the Old Ben court, prior to concluding that the controlling regulation had required the claimant to make a timely and specific election in order to have his Part B claim reviewed, considered an argument involving a variation of the fallacious "automatic election" theory that I previously have discussed. See id. at 697 n. 5. The Old Ben court observed at the outset in this footnote that the operator had contended that the claimant, by pursuing the automatic review of his Part C claim, "in effect elected by the simplest means to obtain DOL review" and that therefore "it was not necessary for [the claimant] to submit a formal election card to obtain review of his denied Part B claim." Id. The Old Ben court considered the operator's argument, in other words, that a passive election of review of a Part C claim, under the liberalized criteria of the 1977 Reform Act, constituted an implicit and automatic election for review of a previously denied Part B claim.

It was in this context that the Old Ben court made the statement that the majority quotes, asserting, inter alia, "[w]e reject this argument as a way around the SSA regulations which require a specific election — whether by formal election card or by some other means — to have the Part B claim reviewed." Id. This was the "argument" by the operator that the Seventh Circuit was rejecting in the passage quoted by the majority, see Majority Op. at 1277, and rightly so, because it flies in the face of both the statutory and regulatory language requiring the specific election of review of a denied Part B claim absent a showing of good cause. See 30 U.S.C. § 945(a)(1); 20 C.F.R. §§ 410.704 410.705(d). The Old Ben court simply did not speak to the issue, either in the footnote quoted by the majority or elsewhere in its opinion, whether a mine operator may, without the personal involvement of the claimant, seek to establish good cause for the claimant's failure timely to request review of a denied Part B claim and thereby to transfer liability for the claimant's benefits to the Fund. I therefore believe that the majority misconstrues and erroneously relies upon this quoted statement, in particular, and upon the Old Ben opinion in general, in concluding that the Seventh Circuit rejected the contention that a claimant's personal involvement in seeking the transfer of an operator's liability is unimportant. I conclude, rather, that the Seventh Circuit's opinion in Old Ben neither supports nor undermines but simply is irrelevant to the majority's opinion on this issue.

In contrast, in my opinion it is clear that the Sixth Circuit in Quarto faced and decided the issue whether, based upon the establishment of good cause for a claimant's failure timely to request review of a Part B claim, an operator may effect a transfer of liability for the claimant's benefits to the Fund. As the majority observes, the Quarto court noted in passing that the claimant joined in the operator's motion to be dismissed from liability under the 1981 Amendments. 901 F.2d at 534. The claimant's joinder in the operator's motion, however, appears in no way to have driven the Sixth Circuit's outcome in Quarto. The Sixth Circuit clearly stated that the issue before it compelled "the consideration of the consequences of a total lack of notice to the claimant on that claimant's ability to reopen a Part B claim and the operator's ability to transfer its liability to the trust fund." Id. at 537 (emphasis added). The Sixth Circuit, moreover, framed its holding in Quarto as follows: "We hold . . . that where the claimant has failed to receive an election card, that claimant's presentation of that issue or the operator's raising of the transfer liability issue at a formal disability hearing suffices as the legitimate filing of a Part B claim. Id. (emphasis added).

I therefore cannot agree with the majority that the Quarto court in substance held that a joint motion by a claimant and an operator before an ALJ to transfer liability for the claimant's benefits — and only such a joint motion — is "tantamount to a formal request to Social Security that [a] Part B claim be reopened" and sufficient to effect the transfer of the operator's liability to the Fund. Majority Op. at 1277 n. 8. I also cannot conclude that the Sixth Circuit's holding in Quarto is inapposite in cases in which claimants remain uninvolved in the transfer dispute or that Quarto's holding stands in anything other than direct opposition to the holding that the majority arrives at today.

IV. CONCLUSION

In sum, I conclude, in contrast to the majority, that a deliberative reading of the statutory and regulatory language governing the black lung benefits program reveals an interstice in the statutory scheme on the question whether an operator, such as Helen Mining, may, through a showing a good cause for a duplicate claimant's failure to elect review of a Part B claim, effect a transfer to the Fund of liability for the claimant's benefits. I believe that this interstice necessitates recourse to the legislative story behind the relevant statutory provisions — a story that the majority unfortunately has failed to ponder and apply.

In my view, this statutory interstice necessitates careful analysis of the governing statutory provisions and their implementing regulations, not only within the overarching context of the legislative story behind them, but also within the context of the general statutory scheme. Such an analysis, to my mind, demonstrates that the majority's conclusion that the statute and the regulations prohibit Helen Mining from effecting a transfer to the Fund of liability for Burnsworth's benefits is both illogical and in contravention of clear Congressional intent.

I would thus arrive at the result that I conclude the Sixth Circuit reached in Quarto and would hold that an operator's establishment of good cause for a claimant's failure timely to request the reopening of a denied Part B claim functions as a surrogate for a transfer request personally filed by a claimant. To the extent that such a holding would require us to overrule our earlier decision in Rochester Pittsburgh Coal Co. v. Krecota, 868 F.2d 600 (3d Cir. 1989), I believe that the legislative and statutory analysis, in which this case calls upon us to engage, requires that we do so.

I respectfully dissent.