Petitioner Eugene Patton seeks review of an order of the United States Department of Labor Benefits Review Board ("the Board"), which dismissed as untimely his appeal from the adverse decision of an Administrative Law Judge on his application for benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. The Board concluded that, because Mr. Patton's appeal was filed more than thirty days after the ALJ's decision was issued, the Board lacked jurisdiction over the appeal. See 30 U.S.C. § 932(a); 33 U.S.C. §§ 921(a), 919(e); Insurance Co. of North America v. Gee, 702 F.2d 411 (2d Cir. 1983). Mr. Patton argues that his appeal was filed less than thirty days after his counsel received notice of the ALJ's decision, and is therefore timely.

Clay v. Director, OWCP, 748 F.2d 501, 503 (8th Cir. 1984); Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 43-44 (2d Cir. 1976), aff'd on other grounds sub nom., Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). Compare also Dawe v. Old Ben Coal Co., 754 F.2d 225, 227 (7th Cir. 1985) (failure to appeal ALJ decision to Board within 30 days); Bennett v. Director, OWCP, 717 F.2d 1167, 1169 (7th Cir. 1983) (same); Insurance Co. of North America v. Gee, 702 F.2d 411, 414 (2d Cir. 1983) (same); Blevins v. Director, OWCP, 683 F.2d 139, 140-41 (6th Cir. 1982) (same). The applicable statute provides that "[a]ny person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred, by filing in such court within sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside."

Alternatively, it argues that if the regulation conditions effective filing upon proper mailing to the parties' representatives, it has gone beyond the statutory mandate, and is invalid. The government cites Insurance Co. of North America v. Gee, 702 F.2d 411 (2d Cir. 1983). Faced with a case essentially identical to this one, the Second Circuit at least assumed, if it did not hold, that § 919(e) includes mailing as part of filing, but held that in adopting a regulation which required an additional mailing before an order becomes effective, the Secretary exceeded his authority.

These are Black Lung cases, but, as we have already suggested, we find no basis for construing the identical statutory language as having an opposite meaning in Longshore Act cases. In ruling that Nealon's appeal was time-barred, the Benefits Review Board relied on two Longshore Act cases, Jeffboat, Inc. v. Mann, 875 F.2d 660 (7th Cir. 1989), and Insurance Co. of North America v. Gee, 702 F.2d 411 (2d Cir. 1983). However, as the Director concedes, neither Jeffboat nor Gee addressed the issue whether a compensation order must be served on the claimant and the employer before the order may be considered filed.

Rich contends that analogous federal provisions governing appeals from ALJ decisions to the Board indicate that an ALJ's decision is not deemed as filed until issued and served on the parties. 33 U.S.C. § 921(a); 20 C.F.R. § 725.478; see Patton v. Director, Office of Workers' Compensation Programs, 763 F.2d 553, 558-59 (3rd Cir. 1985); Insurance Co. of North America v. Gee, 702 F.2d 411, 413-14 (2nd Cir. 1983). Patton and Gee disagree as to whether the thirty day appeal period from an ALJ decision to the Board, pursuant to § 921(a), is triggered by service of the ALJ's decision on counsel or on the parties.

Pratt Whitney Aircraft v. Secretary of Labor, 649 F.2d at 104. Neither the Secretary by regulation nor the Commission by decision can extend the scope of OSHA beyond the boundaries defined by Congress. See Insurance Company of North America v. Gee, 702 F.2d 411, 414 (2d Cir. 1983) ("this Court will not interpret an agency regulation to thwart a statutory mandate"); Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d at 50 ("`[A]n agency may not bootstrap itself into an area in which it has no jurisdiction by repeatedly violating its statutory mandate.'" (quoting FMC v. Seatrain Lines, Inc., 411 U.S. 726, 745, 93 S.Ct. 1773, 1785, 36 L.Ed.2d 620 (1973))).

Based on our reading of 42 U.S.C. § 12134, we are unable to accept the Cruz plaintiffs' restrictive interpretation. See Ins. Co. of N. Am. v. Gee, 702 F.2d 411, 414 (2d Cir. 1983) ("Regulations promulgated pursuant to rulemaking authority conferred by statute assume the force of law only to the extent consistent with the statutory scheme they were designed to implement."). Nothing in our holding should be construed as an opinion on whether the DOJ reasonable modifications regulation is appropriate or necessary for paratransit services.

Wherever possible, courts should read regulations to be consistent with the statutes that authorize them, and a construction that thwarts the statute which the regulation implements is impermissible. Montero v. Meyer, 861 F.2d 603, 609 (10th Cir. 1988), cert. denied, 492 U.S. 921, 109 S.Ct. 3249, 106 L.Ed.2d 595 (1989); Jochum v. Pico Credit Corp. of Westbank, Inc., 730 F.2d 1041, 1047 (5th Cir. 1984); Insurance Company of North America v. Gee, 702 F.2d 411, 414 (2d Cir. 1983). The district court's erroneous reliance on a Treasury regulation it has misinterpreted results in the nullification of the applicable statutory mandate in this case, i.e., that the holding period "shall be appropriately reduced . . . for any period . . . in which the taxpayer has an option to sell. . . ." 26 U.S.C. § 246(c)(3).

When one is faithful to this command, it becomes apparent that the majority's interpretation cannot stand. E.g., Ernst Ernst v. Hochfelder, 425 U.S. 185, 213-14, 96 S.Ct. 1375, 1391, 47 L.Ed.2d 668 (1976); Secretary of Labor v. Western Fuels-Utah, Inc., 900 F.2d 318, 320 (D.C. Cir. 1990); La Vallee Northside Civic Ass'n v. Virgin Islands Coastal Zone Management Comm'n, 866 F.2d 616, 623 (3d Cir. 1989); Campesinos Unidos, Inc. v. United States Dep't of Labor, 803 F.2d 1063, 1069 (9th Cir. 1986); Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984); Jochum v. Pico Credit Corp. of Westbank, Inc., 730 F.2d 1041, 1047 (5th Cir. 1984); Insurance Co. of North America v. Gee, 702 F.2d 411, 414 (2d Cir. 1983); Trustees of Indiana Univ. v. United States, 618 F.2d 736, 739, 223 Ct.Cl. 88 (1980). The fundamental consideration is that the FLSA sets only minimum standards, a floor, not the maximum amount an employer may agree to pay.

. Cf. Insurance Co. of North America v. Gee, 702 F.2d 411, 413 (2d Cir. 1983) (holding invalid a regulation which requires filing and mailing of copies of decision to parties and their representatives before a decision becomes effective because it modifies the "clear mandate of the statute" that only filing is necessary for effectiveness). We recognize that in unusual circumstances, federal courts have postponed the consequences of their decisions beyond the date they are issued.