Petition for Writ of Certiorari — Jeffrey G. Carswell, et al., Petitioners v. E. Pihl & Sons, et al.
Supreme Court briefNov 2, 2021
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No. __-___
In the
Supreme Court of the United States
________________
Jeffrey G. Carswell, Heinz Eriksen, and
Svenning Tevede Juhl, Representative of
Bent Hansen (Deceased),
Petitioners
v.
E. Pihl & Son, Topseo-Jensen & Schroeder Ltd.
(Danish Construction Company), Director OWCP,
Respondents
___________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the First Circuit
__________________________________________
PETITION FOR A WRIT OF CERTIORARI
__________________________________________
Ian Anderson, Esq.
Counsel of Record
P.O. Box 150362
Kew Gardens, New York 11415
(718) 846-9080
iandersonadvocate@msn.com
Counsel for Petitioners
i
THE QUESTION PRESENTED FOR
A WRIT OF CERTIORARI
The Longshore and Harbor Worker’s
Compensation Act
(LHWCA)
If the First Circuit had jurisdiction to review
Petitioners’ wage-loss claims, did its finding that a US
Labor Director could oppose their claims to protect a
privately-financed Fund, violate Congress’s intention
for Directors to exercise only administrative support
functions in cases under the Longshore and Harbor
Workers Compensation Act?
ii
LIST OF PARTIES IN THE FIRST CIRCUIT
COURT BELOW
i) Danes, Jeffrey G. Carswell, Heinz Eriksen and
Bent Hansen were Petitioners. Mr. Hansen died of his
occupational cancer in 2019 and was represented by
his son, Svenning Tvede Juhl.
ii) E. Pihl & Son, a major Danish corporation,
appeared as Respondent- employer, being a surviving
member of the Danish Construction Company, a
disbanded Danish business partnership.
Topseo-Jensen & Schroeder Ltd, also a former
Danish partnership member, refused to appear or take
part in any proceedings, including Federal review.
iii) District Director OWCP entered appearance as a
party- Defendant with the employer in opposing
Petitioners’ claims in Administrative Law Judge
hearings and Benefits Review Board proceedings.
The First Circuit’s judgement affirming his litigation
standing, also apparently entitled him to be a partyRespondent in the Federal review and not a
representative of the Benefits Review Board under
Rule 15 (a) of the Federal Rules of Appellate
Procedure.
iii
CORPORATE DISCLOSURE STATEMENT
All three Danish Petitioners are individuals without
corporate personality.
STATEMENT OF RELATED PROCEEDINGS
There are no proceedings that are directly related to
this case.
iv
TABLE OF CONTENTS
Page
The Question For Review.......................................i
List of Parties in the First Circuit.........................ii
Corporate Disclosure Statement and Statement
of Related Proceedings...........................................iii
Table of Contents,,,.................................................iv
Table of Authorities………………………………….ix
Cases…………………………………………….......ix
Statutes……………………………………….……..xi
Regulations…………………………………………xii
Rules……………………………………….………..xii
Legal Writers………………………………………xii
Opinions and Orders in the Case............................1
i) Administrative Agencies............................1
ii) Second & First Circuit Courts of
Appeals.........................................................2
Basis of US Supreme Court Jurisdiction................4
i) Statutory Review Provisions ......................4
ii) Date of Judgement for Review......................5
iii) Petitioners’ Proper Review Questions..........5
v
Statutory and Regulatory Provisions
Involved in Petition…………………………………….6
i) Director’s Statutory Support Role;
LHWCA 33 USC Sec. 907 et seq..................6
ii) Labor Secretary’s Post- “Harcum”
Regulations…………………………………….11
iii) Federal Review Jurisdiction under;
LHWCA 33 USC 921(c).........................13
DBA 42 USC 1653 (b)............................13
Statement of the Case..............................................14
I) The Precipitating Event................................14
2) “Clean- Up” Attempts and Petitioners’
Exposure…………………………………….….16
3) Petitioners’ Late Cancers..............................18
4) Director’s Actions as Party- Defendant in
Opposition......................................................18
5) Scientific Evidence and ALJ Findings..........20
Reasons for Granting the Writ of Certiorari...........21
A) Director’s Standing as Party- Defendant To
“Protect” Privately- Financed Special Fund...21
vi
i) Litigating Director v. Congressional
Quid Pro Quo Compensation Scheme…23
ii) Director’s Conflict of Interest
as Fund Manager..................................24
iii) Congressional Intent and Director’s
Standing...............................................25
iv) Invalidity of Post- Harcum Regulations
in LHWCA Cases..................................27
v) LHWCA Credibility Problem if Writ
Denied.....................................................29
B) Circuit Courts’ Conflict Over Review
Jurisdiction In Defense Base Act Cases……31
i) Unresolved Dispute Among Federal
Circuit Courts...........................................32
ii) Conflict Within US Labor Department
Agencies...................................................33
iii) Unresolved Jurisdictional Dispute Widely
Criticized…………………………………...34
iv) Anomalous System of Federal Review...34
v) Writ Warranted to Ensure Legal
Validity of Review Orders.......................35
Conclusion..................................................................36
vii
APPENDIX
Page
i) First Circuit’s May 27th. 2021 order denying
Petitioners’ Review, excluding any mention of
their expert genetic witness, Dr. Knight…..A1
ii) First Circuit’s August 11th. 2021 order
denying Petitioners’ Re- hearing……….... A29
iii) First Circuit’s October 18th. 2019 order
denying Petitioners’ certification motion
under 28 USC 1254(2) on its review
jurisdiction in Defense Base Act cases…...A31
iv) Second Circuit’s June 18th. 2019 order
transferring Petitioners’ cases, over
objections, to the First Circuit……………..A33
v) Benefits Review Board’s December 11th. 2018
order affirming the ALJ’s finding, excluding
any mention of Dr. Russo, the Employer’s
kidney specialist finding Hansen and
Eriksen’s large left kidney tumors developed
over 30 to 40 years from a “sporadic
event…………………………………………....A35
vi) Labor Department Administrative Law
Judge’s July 23rd. 2014 Order fully settingout reasons for permitting the Director to
act as a party- defendant (A80, A82).........A54
viii
vii) Copy of January 6th. 2014 e-mail from
Kromann-Reumert, Employer’s Copenhagen
Bankruptcy Trustees to the Director
discounting any settlement due to his $200
million claim…………………………………A83
ix
TABLE OF AUTHORITIES
Page
Cases
AFIA/CIGNA Worldwide v. Felkner 930 F. 2nd.
1111……………………………………………………….33
Baltimore & Philadelphia Steamboat Co. v. Norton
284 US 408............................................................24,31
Berger v. United States 295 US 78.......................30,31
Consolidated Coal Co. v. Kramer 305 F 3rd.
203………………………………………….........20 Fn. 11
Director OWCP v. Newport News Shipbuilding & Dry
Dock 514 US 122, (Harcum)………..…..22,24,26,27,30
Garvey Grain Co. v. Director OWCP 639 F 2nd.
366....................................................................20 Fn.11
Green v. Bogue 156 US 478, 503………………11 Fn. 3
Hice v. Director OWCP 156 F 3rd. 214.......................33
Home Indemnity Co. v. Stillwell 597 F 2nd. 87.........33
Ingalls Shipbuilding Co. v. Director OWCP 519 US
248..........................................................................23,29
ITT Base Serv. v. Hickson 155 F 3rd. 1272..........33,34
x
J.W. Hampton & Co. v. United States 276 US
394..............................................................................28
Labelle Processing Co. v. Swarrow 72 F 3rd.
308....................................................................20 Fn.11
Lee v. Boeing Co. 123 F 3rd. 801.................................32
Lehman Bros. v. Schein 416 US 386.........................35
Parrot v. Guardian Life Ins. Co. of America 338 F 3rd.
140...............................................................................35
Pearce v. Director OWCP 603 F 2nd. 763...................33
Pearce v. Director OWCP 647 F 2nd. 716...................33
Potomac Electric Power Co. v. Director OWCP 449 US
268.........................................................................23,28
Service Employees Int’l. Inc. v. Director OWCP 595 F
3rd. 447...................................................................33,35
Truczinskas v. Director OWCP, 699 F.3rd 672........33
United States v. ICC 337 US 433..............................26
.
United States Aid Funds v. Espinosa 559 US
260..............................................................................35
Statutes
28 USC 1254 (2)..................................................4,31,36
xi
30 USC 932 (k)……………………………………..……25
33 USC 914 (h)...................................................7,24,30
33 USC 918 (b).........................................................8,25
33 USC 919 (a)........................................................8,14
33 USC 921 (c).......................................................13,32
33 USC 940 (f).............................................10,24,27,28
42 USC 1651(a)..........................................................14
42 USC 1651(6)..........................................................32
42 USC 1653 (b)....................................................13,32
Regulations
10 CFR 20 H Sec. 1703..............................................15
20 CFR 30.5 (gg)..............................................20 Fn.11
20 CFR 701. 301 (a)(7)……………………………….….6
20 CFR 702. 333 (b)...............................................11,27
20 CFR 802. 201 (a)...............................................11,28
28 CFR 79.22(b).................................................20 F.11
38 CFR 3.309 (d).............................................20 Fn. 11
xii
Rules
Federal Rules of Appellate Procedure, Rule 15
(a)………………………………………..……………23,29
Legal Writing
“Appeal of Defense Base Act Cases to the Courts;
The Disagreement over Forum Continues”
Markovich & Parker; (August 2010.
Pub. 135; Rel. 721; Benefits Review
Board Service- Longshore Reporter.).......................34
1
OPINIONS AND ORDERS
ENTERED IN THE CASE
Administrative Agencies
i) Petitioners filed wage- loss claims under the Defense
Base Act in June and July 2010 with the OWCP
District Director in Boston, in the Labor Department’s
First Compensation Zone which deals with civilian
occupational injuries at US Military bases in
Greenland.
ii) The Boston Director transferred the matters for
hearings in June 2012 to a US Labor Department
Administrative Law Judge in the Second
Compensation Zone in New York City. Hearings
commenced before the Administrative Law Judge in
December 2012.
iii) On July 23rd. 2014 the Administrative Law Judge
issued an order fully setting- out her reasons for
permitting the Director to act as a party- defendant
based on his fiduciary responsibility to the Special
Fund; an issue queried in Harcum, but left undecided.
Consolidated Cases of Carswell 2012 LDA- 00540;
Hansen 2012 LDA- 00541; Eriksen 2012 LDA-00543
v. E. Phil & Son et al.
iv) On October 18th. 2017, the Administrative Law
Judge issued a 164 page unpublished Decision and
Order denying workers compensation in Petitioners’
consolidated cases; Carswell 2012 LDA- 00540;
Hansen 2012 LDA-00541; Eriksen 2012 LDA- 00543 v
E. Pihl & Son et al.
2
This voluminous Decision and Order, which details
extensive evidence in the case and findings on other
issues, is not included in the Appendix. The Director’s
standing is only briefly addressed at page 161, with a
reference to the July 23rd. 2014 Order above, which
contains the fullest account of the ALJ’s reasons,
including a discussion of the Harcum case and the
Director’s Fund responsibilities.
If the Court requires this 164 page Decision and Order
it can be provided in a Supplementary Appendix.
v) On December 11th. 2018 the US Department of
Labor’s Benefits Review Board, issued an unpublished
Decision and Order affirming the Director’s standing
and denial of Petitioners’ workers compensation in
BRB consolidated cases Carswell 18-0091; Hansen 180092; Eriksen 18-0093 v. E. Pihl & Son et al.
Federal Appellate Review
Second Circuit
vi) Since the original agency denial of wage- losses was
determined in New York, Petitioners filed a petition
for review in the Second Circuit Court of Appeals in
January 2019.
3
vii) On February 1st. 2019 the Second Circuit issued
an interlocutory order for compulsory mediation
hearings on March 6th. 2019, under its Civil Appeals
Mediation Program, (CAMP); Consolidated Docket
No.19-151, Carswell et al v. E. Pihl & Son.
viii) On February 14th. 2019, The Director moved to
transfer Petitioners’ review to the First Circuit, which
only has voluntary CAMP proceedings, in which
respondents subsequently refused to participate. 1
ix) On February 21st. 2019 the Second Circuit vacated
its March 6th. 2019 CAMP hearing date as a result of
the Director’s transfer motion. (Docket No. 19-151)
x) On June 18th. 2019 the Second Circuit granted the
Director’s motion, over Petitioners’ objections, in an
unpublished order transferring their Federal review
to the First Circuit. (Jeffery G. Carswell et al,
Petitioners v. E. Pihl & Son et al, Respondents; Docket
No. 19-151)
First Circuit
xi) Due to an irreconcilable dispute among Federal
Circuit courts on review jurisdiction over Petitioners’
Defense Base Act wage- loss cases, Petitioners filed a
1 The Director previously sought to avoid mediation or
settlement of Petitioners’ wage- loss claims when E. Pihl & Son
declared bankruptcy, almost a year into the Administrative Law
Judge hearings, by threatening its Copenhagen trustees with a
bogus $200 million claim if they considered settlement. This
only came to light after being widely reported in the Danish
Press.
4
motion requesting the First Circuit to certify this issue
for instructions under 28 USC 1254 (2)
The First Circuit denied the motion in an unpublished
order of October 18th. 2019. (Jeffery G. Carswell et al,
Petitioners v. E. Pihl & Son et al, Respondents;
Consolidated Docket No.19-1630.)
xii) On May 27th. 2021, the First Circuit issued an
order denying Petitioners’ Federal review of their
wage- loss claims. (Jeffery G. Carswell et al,
Petitioners v. E. Pihl & Son et al, Respondents;
Consolidated Docket No. 19- 1630.)
xiii) Petitioners filed timely Petitions for rehearing on
June 8th. 2021, which the Chief Judge and five others
denied on August 11th. 2021. (Jeffery G. Carswell et al,
Petitioners v. E. Pihl & Son et al, Respondents
Consolidated Docket No. 19- 1630.)
BASIS OF US SUPREME COURT
JURISDICTION
i) Statutory Provisions For Supreme Court Review;
a) 28 USC 1651 (a) provides the US Supreme
Court with jurisdiction to consider and issue Writs of
Certiorari.
b) 28 USC 1254 (1) empowers the US Supreme
Court to do so in matters before or after rendition of
judgement in the US Courts of Appeals. In the latter
regard, the judgement for which certiorari is sought is
final and a mandate was issued by the First Circuit on
5
August 18th. 2012; (Jeffery G. Carswell et al,
Petitioners v. E. Pihl & Son et al, Respondents
Consolidated Docket No. 19- 1630.)
ii) Date of Judgement for Review;
Re- hearing of the First Circuit order of May 27th.
2021 for which certiorari is sought, was denied on
August 11th. 2021. This petition is accordingly timely,
being filed within the 90 day period pursuant to this
Court’s Rule 13(3).
iii) Certiorari Petition Raises Proper Questions for
Review
a) Rule 10 (c)
As appears more fully below, the First Circuit’s
finding that an OWCP Director has standing as a
party- defendant to oppose worker’s claims under the
Longshore and Harbor Workers Compensation Act,
currently conflicts with two prior decisions of this
Court on Congress’s intent. This Court has previously
queried, but not yet determined if the Director could
have such standing from his status as manager of a
privately- financed Special Fund for workers’ benefit.
b) Rule 10 (a)
As Appears more fully below, an ongoing Circuit
dispute exists over which Federal courts have
jurisdiction to review wage loss claims, such as
Petitioners, under the Defense Base Act extension of
6
the Longshore and Harbor Workers Compensation
Act.
Five Circuits hold that only the Federal District
courts have jurisdiction, while four Circuits, including
the First and Second, hold that only Circuit courts
have such jurisdiction.
The core question is whether a prior amendment of
the Longshore and Harbor Workers Compensation Act
also amended its Defense Base Act extension.
The constitutionality of an Act of Congress is not in
question.
The validity of certain Labor Secretary Regulations
is in question.
THE STATUTORY PROVISIONS INVOLVED
Longshore and Harbor Workers Compensation
Act: 33 USC Ch.18
A) The District Director’s Administrative Support
Roles.
[Since 2008, the “Deputy Commissioner”
referred in the statute, is now called the “District
Director”, per 20 CFR 701.301(a)(7)]
Sec. 907 (b) Physician selection; administrative
supervision;
7
“The Secretary shall actively supervise the medical
care rendered to injured employees, shall require
periodic reports as to the medical care being rendered
to injured employees, shall have authority to
determine the necessity, character, and sufficiency of
any medical aid furnished or to be furnished.”
Sec. 907 (e) Physical examination; medical questions;
report of physical impairment;
“In the event that medical questions are raised in any
case, the Secretary shall have the power to cause the
employee to be examined by a physician employed or
selected by the Secretary and to obtain from such
physician a report containing his estimate of the
employee’s physical impairment and such other
information as may be appropriate.”
Sec. 908 (i) (1)
“Whenever the parties to any claim for compensation
under this chapter, including survivors’ benefits,
agree to a settlement, the deputy commissioner or
administrative law judge shall approve the settlement
within thirty days unless it is found to be inadequate
or procured by duress.”
Sec. 914 (h) Investigations;
“The deputy commissioner (1) may upon his own
initiative at any time in a case in which payments are
being made without an award, and (2) shall in any
case where right to compensation is controverted, or
where payments of compensation have been stopped
8
or suspended, upon receipt of notice from any person
entitled to compensation, or from the employer, that
the right to compensation is controverted, or that
payments of compensation have been stopped or
suspended, make such investigations, cause such
medical examinations to be made, or hold such
hearings, and take such further action as he considers
will properly protect the rights of all parties.” 2
Sec. 918 (b) Special Fund
“In cases where judgment cannot be satisfied by
reason of the employer’s insolvency or other
circumstances precluding payment, the Secretary of
Labor may, in his discretion and to the extent he shall
determine advisable after consideration of current
commitments payable from the special fund
established in section 944 of this title, make payment
from such fund upon any award made under this
chapter, and in addition, provide any necessary
medical, surgical, and other treatment required by
section 907 of this title in any case of disability where
there has been a default in furnishing medical
treatment by reason of the insolvency of the employer.
Such an employer shall be liable for payment into such
fund of the amounts paid therefrom by the Secretary
of Labor under this subsection; “
Sec. 919 (a) Filing of claim;
2 In Petitioners’ cases, where wage loss entitlement was
controverted, the Director referred the matter to an
Administrative Law Judge after a conference- call with the
parties.
9
“Subject to the provisions of section 913 of this title a
claim for compensation may be filed with the deputy
commissioner in accordance with regulations
prescribed by the Secretary at any time after the first
seven days of disability following any injury, or at any
time after death, and the deputy commissioner shall
have full power and authority to hear and determine
all questions in respect of such claim.”
Sec.919 (b) Notice of claim;
“Within ten days after such claim is filed the deputy
commissioner, in accordance with regulations
prescribed by the Secretary, shall notify the employer
and any other person (other than the claimant), whom
the deputy commissioner considers an interested
party, that a claim has been filed. Such notice may be
served personally upon the employer or other person,
or sent to such employer or person by registered mail.”
Sec. 930 (a) Time for sending; contents; copy to deputy
commissioner;
“Within ten days from the date of any injury, which
causes loss of one or more shifts of work, or death or
from the date that the employer has knowledge of a
disease or infection in respect of such injury, the
employer shall send to the Secretary a report setting
forth (1) the name, address, and business of the
employer; (2) the name, address, and occupation of the
employee; (3) the cause and nature of the injury or
death; (4) the year, month, day, and hour when and
the particular locality where the injury or death
10
occurred; and (5) such other information as the
Secretary may require. A copy of such report shall be
sent at the same time to the deputy commissioner in
the compensation district in which the injury
occurred. Notwithstanding the requirements of this
subsection, each employer shall keep a record of each
and every injury regardless of whether such injury
results in the loss of one or more shifts of work.”
Sec. 939 (c) Furnishing information and assistance;
directing vocational rehabilitation
“(1) The Secretary shall, upon request, provide
persons covered by this chapter with information and
assistance relating to the chapter’s coverage and
compensation and the procedures for obtaining such
compensation and including assistance in processing
a claim. The Secretary may, upon request, provide
persons covered by this chapter with legal assistance
in processing a claim. The Secretary shall also provide
employees receiving compensation information on
medical, manpower, and vocational rehabilitation
services and assist such employees in obtaining the
best such services available.”
Sec. 940 (f) Conflict of interest
“Neither a deputy commissioner or Board member nor
any business associate of a deputy commissioner or
Board member shall appear as attorney in any
proceeding under this chapter, and no deputy
commissioner or Board member shall act in any such
case in which he is interested, or when he is employed
by any party in interest or related to any party in
11
interest by consanguinity or affinity within the third
degree, as determined by the common law.”
Labor Secretary’s Post- “Harcum” Regulations
B) Standing Issue.
20 CFR 702.333 Formal hearings; parties.
“(a) The necessary parties for a formal hearing are the
claimant and the employer or insurance carrier, and
the administrative law judge assigned the case.
(b) The Solicitor of Labor or his designee may appear
and participate in any formal hearing held pursuant
to these regulations on behalf of the Director as an
interested party.” 3
20 CFR 802.201 Who may file an appeal.
“(a) A party.
(1) Any party or party-in-interest adversely affected or
aggrieved by a decision or order issued pursuant to one
of the Acts over which the Board has appellate
jurisdiction may appeal a decision or order of an
3 Federal law does not recognize an “interested party” as a
party- litigant. Such a “party” can be disregarded in deciding
issues of res judicata. Green v. Bogue 158 US 478,503.
12
administrative law judge or deputy commissioner 4 to
the Board by filing a notice of appeal pursuant to this
subpart. (See § 802.205(b) and (c) for exceptions to this
general rule.)
A party who files a notice of appeal shall be deemed
the petitioner. The Director, OWCP, when acting as a
representative of the Special Fund established under
the Longshore and Harbor Workers' Compensation
Act or the Black Lung Disability Trust Fund
established by the Black Lung Benefits Act, or, when
appealing a decision or order which affects the
administration of one of the Acts, shall be considered
a party adversely affected.”
20 CFR 802.410 Judicial review of Board decisions.
“(a) Within 60 days after a decision by the Board has
been filed pursuant to § 802.403(b), any party
adversely affected or aggrieved by such decision may
file a petition for review with the appropriate U.S.
Court of Appeals pursuant to section 21(c) of the
LHWCA.
(b) The Director, OWCP, as designee of the Secretary
of Labor responsible for the administration and
enforcement of the statutes listed in § 802.101, shall
be deemed to be the proper party on behalf of the
Secretary of Labor in all review proceedings conducted
pursuant to section [9] 21(c) of the LHWCA.”
4 An order of the “Deputy Commissioner”/ Director, relates to
his remaining capacity to enforce Administrative Law Judge
determinations and rule on modes of payment.
13
The Ongoing Jurisdictional Conflict
Among the Circuits
C) i. Federal Review under the Longshore and Harbor
Workers Compensation Act: 33 US Code 921 (c) after
the 1972 amendment.
“ c) Any person adversely affected or aggrieved by
a final order of the [Benefits Review] Board may
obtain a review of that order in the United States court
of appeals for the circuit in which the injury occurred,
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.”
ii. Federal Review under unamended Defense Base
Act 42 U.S. Code Sec. 1653 (b), an extension of the
Longshore and Harbor Workers Compensation Act.
“Judicial proceedings provided under sections 18
and 21 5 of the Longshore and Harbor Workers’
Compensation Act [33 U.S.C. 918, 921] in respect to a
compensation order made pursuant to this chapter
shall be instituted in the United States district court
of the judicial district wherein is located the office of
the deputy commissioner whose compensation order is
5 Sec. “18", refers to [Sec. 918 LHWCA], and the Director’s role
under the unamended Defense Base Act in enforcing
judgements in the District Courts.
Sec “21" refers to [Sec. 921 LHWCA] and Federal review of
compensation orders under the unamended Defense Base Act
extension which are also in the District Courts.
14
involved if his office is located in a judicial district, and
if not so located, such judicial proceedings shall be
instituted in the judicial district nearest the base at
which the injury or death occurs.”
STATEMENT OF THE CASE
Petitioners filed their cases under 33 USC Ch. 18, Sec.
919 (a), the Longshore and Harbor Workers
Compensation Act, (LHWCA) 6 as extended to injured
foreign military base workers under 42 USC Sec. 1651
(a), of the Defense Base Act, (DBA).
1) The Precipitating Event
Petitioners’ long term occupational cancers resulted
from emergency work following the tragic 1968 crash
and burning of a US B-52 and its four thermo- nuclear
bombs on fjord sea- ice, in the proximity of a remote
US Arctic Circle Air Force Base at Thule, Greenland.
One crew member was killed and several others
suffered severe frostbite injuries. The crash did not
detonate the four nuclear bombs. However, their
weapons- grade plutonium components burned in the
intense conflagration releasing trillions of respirable
particles of Pu 239 into the air, contaminating the
6 Note, amended Sec. 919 (d) stripped the “Deputy
Commissioner”/ Director of all prior adjudicatory powers to
grant or deny compensation, transferring them instead to
Administrative Law Judges. The amendment confusingly failed
to alter prior references to his “orders” throughout the Act, now
limited only to his administrative enforcement functions.
15
crash site and adjacent lands with airborne resuspension of its 24,000 year radioactive half- life.
This form of Pu 239's alpha- ionizing radiation cannot
penetrate healthy skin, but has deadly long term
cancer effects if inhaled or ingested, remaining in the
body for decades, internally irradiating tissues and
organs until slowly excreted in the urine and feces.
It is so dangerous that it can only be handled safely by
laboratory workers through sleeve gloves in sealed
fume cupboards at negative pressure. The US Nuclear
Regulatory Commission requires only NIOSH
approved respirators to be used to prevent internal
radiation from inhalation and ingestion. (NRC 10 CFR
20 Sub Part H sec. 1703)
Outside of well- equipped laboratories, it is extremely
difficult to detect with standard radiation detection
equipment.
Inhaled minuscule amounts of one milligram of Pu
239's high radioactive linear energy transmission,
(High LET) and its heavy metal component, (Pu
Oxide), will result in 6- 12 late cancer deaths, 7 while
ingestion of 0.5 gram of Pu 239 is as fatal as 0.1 gram
of cyanide. 8
7 US National Academy of Sciences. When the late Pu 239
cancer deaths occur decades later, they are not statistically
detectable in the general population’s cancer death rate.
8 Livermore National Laboratory.
16
2) “Clean- Up” Attempts and Petitioners’
Exposure
The removal of wind- blown Pu 239 contamination in
the Arctic Circle is in reality an impossible task. The
US Military however asserted it had removed half of
it in blackened snow and ice from the re- frozen fjord
crash site. Due to manpower shortages in 1968, this
removal task, (“Operation Crested Ice”) utilized
Danish civilian Base workers such as Petitioners, in
continuous 7/24 emergency shift- work in a race
against seasonal melting of the crash site sea- ice.
None of the then young Danish Petitioners had any
knowledge of radiation and were neither issued with
sealed ventilator masks against internal Pu 239
irradiation, nor radiation suits or basic radiation
detectors. They were told, “Everything was safe”. 9
9 All three Petitioners were employed by a Danish contractor
with the US Air Force and not a US Energy Department
contractor whose employees can claim under the Energy
Employees Occupational Injuries Compensation Act, which
determines liability by scientific clinical testing.
17
Truckloads of contaminated crash site snow and ice
were continuously brought into an unventilated Base
hanger from the permanent Arctic darkness and offloaded down wooden chutes into empty aviation fuel
drums, causing a permanent fog of re-suspended
contaminated snow in which Petitioners worked. The
drums were filled and seal-welded in groups of 15 to
16, but due to the extreme cold and the urgency of the
operation, the welds frequently failed leaking
contaminated contents onto the Hanger floor, creating
a toxic slurry with loading spillages, which also had to
be eventually removed and stored in containers as
hazardous.
Hansen, a carpenter, made the wooden chutes and
constantly repaired them in the Hanger. He also
constructed and assembled shelters at the
contaminated crash site.
Eriksen a fireman, worked in the Hanger during his
shifts to extinguish fires in the loaded drums during
welding procedures which ignited splinters of chute
and residual aviation fuel.
Carswell a civilian freight manager monitored the
welding process in the Hanger and attached
Hazardous Warning Labels on the sealed containers.
He visited the crash site on several occasions to assess
the amount of hazardous freight for transshipment by
sea to the US and formally liaised with US Military
officers, helping them to manhandle large radioactive
parts of the bombs onto flatbed trucks. In early spring
he escorted Air Force scientists who were protected by
18
full face masks and radiation suits, in their inspection
of the sealed containers.
He remained at the Base for three years after the
“clean- up” operation and following the curious Base
tradition, consumed Mess beverages with “fizzy” ice
cubes obtained from icebergs trapped in the fjord in
question during subsequent Arctic winters.
3) Petitioners’ Late Cancers.
Carswell developed stomach cancer and related
esophageal cancer in 1984 requiring surgical
operations to remove part of his stomach and
esophagus, leaving him with permanent, debilitating
internal scar tissues, requiring further operations to
reduce the pain, as well as continual bi- yearly
endoscope monitoring.
Hansen developed left kidney cancer and kidney
removal in 2002.
Eriksen also developed left kidney cancer and kidney
removal in 2005.
The employer’s kidney expert, Dr. Russo, estimated
their very large “sporadic” left kidney tumors, (i.e.,
due to an external event), would have taken 30 to 40
years to develop, placing the event approximately
within the “clean- up” period.
4) The Director’s Actions as Party- Defendant.
19
On August 9th. 2012, the Administrative Law judge,
(ALJ) issued an order for the first hearing date on
December 4th. 2012 in New York City, with initial
discovery before then. 10
Petitioners duly made initial discovery and booked
travel and New York hotel accommodations. The
employer did nothing. Likewise, despite four months’
notice, the Director made no arrangement for
Petitioners’
mandatory
independent
medical
examinations while in New York, forcing them to
return to New York, if they could afford it. If not, their
cases could not proceed.
The ALJ allowed Petitioners to testify but adjourned
the hearings to July 2013, for cross- examination after
the employer refused to proceed. An order was issued
against the Director to pay Petitioners’ air and hotel
costs to enable them to return from Denmark for their
medical examinations.
Late in 2013 when the employer, (a major Danish
corporation with international undertakings) declared
bankruptcy, the Director threatened its Copenhagen
bankruptcy trustees with a bogus $200 million claim
if they considered settling Petitioners’ wage loss
claims. A84,85 This only came to light after being
extensively reported in the Danish Press.
10 Erroneously docketed as a hearing date for “August 9th. 2012",
misleading the First Circuit into believing there were “months
of sparring” between the parties before the December hearing
date. A5
20
During the entire course of the lengthy and protracted
hearings the Director filed opposition motions, crossexamined Petitioners and witnesses, filed evidence in
opposition, and sought delays to implead other
parties.
5) Scientific Evidence and ALJ Findings.
Care is required to properly understand the scientific
evidence. The ALJ dismissed the wage loss claims on
the basis that Petitioners’ ionizing radiation exposure
could not cause stomach, esophageal or kidney
cancers, citing the epidemiological evidence of the
employer’s expert, Dr Fred Mettler, which she
determined rebutted the statutory presumption of
causation.
The ALJ ignored the fact that Mettler’s evidence was
i) Hostile to Federal law which attributes such cancers
to ionizing radiation exposure. 11 ii) Conflicted with
accepted science on late cancers from minuscule
inhalation and ingestion of Pu 239 with resulting
decades of internal irradiation. iii) Overlooked the fact
that Mettler’s probability evidence was based on
external radiations with low linear energy
transmission, (Low LET), not Pu 239's high internal
11 20 CFR 30.5 (gg); 28 CFR 79. 22 (b); 38 CFR 3.309 (d);
“Substantive” evidence to rebut the statutory presumption must
be in accordance with Federal law. Garvey Grain Co. v. Director
OWCP 639 F 2nd. 366, 370; Consolidated Coal Co.v. Kramer 305
F 3rd. 203; Labelle Processing Co. v. Swarrow 72 F 3rd. 308, 314,
315.
21
alpha linear energy transmission, (High LET), though
Mettler noted the material difference in his report;
namely that Low LET genetic radiation- damage “can
be repaired at a relatively rapid rate.” Whereas Pu
239's High LET genetic damage is permanent.
The ALJ found it was “prudent” to permit the Director
to act as a party- defendant in opposing Petitioners’
wage loss claims since “he might be requested to
authorize payment” from the privately- financed
workers’ Special Fund. This was despite the fact that
the Director entered opposition to Petitioners’ wage
loss claims almost a year before the employer declared
bankruptcy and workers are the Fund’s sole
beneficiaries.
The ALJ found there was a “consensus” among the
parties that only clinical testing of Petitioners’ urine
or blood for Pu 239 exposure could determine their
claims, but the Director’s independent medical
examiner refused to conduct such tests, though
supplied with Petitioners’ written consents for urine
and blood samples.
REASONS FOR ALLOWING A WRIT OF
CERTIORARI
A) The Director Standing as Party- Litigant
in Opposition to “Protect” the PrivatelyFinanced Injured Workers’ Special Fund
The First Circuit held that the Director’s opposition to
wage- loss claims as a party- litigant in LHWCA
22
proceedings, to protect the privately financed Special
Fund, did not conflict with this Court’s decision in
Director OWCP v. Newport News Shipbuilding & Dry
Dock Co.514 US 122 (the Harcum case). A18
Harcum held that the Director was not adversely
affected in such proceedings entitling her to partylitigant standing and the right to petition for Federal
review. It noted however it was “possible” the Director
might be considered adversely affected in LHWCA
proceedings as the manager of a privately- financed
Special Fund, but stated that; “We leave those issues
to be resolved in a case where the Director's
relationship to the fund is immediately before us.”
Harcum 128.
This issue is now before the Court.
If left unreviewed and unresolved, Directors will have
carte blanch to oppose all injured workers claims as
party- litigants, on the mere pretext that their
employers might become unable to pay compensation.
12
This effects a “sea- change” in the LHWCA’s
compromise- resolution scheme, potentially requiring
injured workers, as sole beneficiaries of the Fund, to
fight both the Government and their employers.
Also, if left unreviewed, Directors, as party- litigants,
can assert the right to appear as party- respondents in
LHWCA Federal review proceedings, in conflict with
12 The Director entered appearance in opposition to Petitioner’s
cases almost a year before the employer’s bankruptcy.
23
this Court’s finding in Ingalls Shipbuilding Co. v.
Director OWCP 519 US 248, 265, that Directors can
only appear in a representative capacity under FRAP
15(a)
as
Benefits
Review
Board
(BRB)
representatives. It also implies that Directors will
have a right to challenge LHWCA decisions of the BRB
by Federal review as party- petitioners, contrary to
this Court’s decision in Harcum.
i) Litigating Director v. Congressional Quid Pro
Quo Compromise Scheme.
In Potomac Electrical Power Co. v. Director OWCP 449
US 268, 281, this Court noted that unlike tort
litigation, compromise is the central intention of the
LHWCA’s compensation scheme. In Fn 24, it
elaborated on the quid pro quo nature of its
compensation citing standard authorities:
"Workmen's compensation acts are in the
nature of a compromise or quid pro
quo between employer and employee.
Employers relinquish certain legal
rights which the law affords to them and so,
in turn, do the employees........
employers are made certain that, irrespective
of their fault, liability to an injured workman
is limited under workmen's compensation.
Employees, on the other hand, ordinarily give
up the right of suit for damages for personal
injuries against employers in return for the
certainty of compensation payments as
recompense for those injuries."
24
In the prior case of Baltimore & Philadelphia
Steamboat Co. v. Norton 284 US 408, 414, the Court
also found that the LHWCA’s quid pro quo
compromise provisions “are deemed to be in the Public
interest and should be construed liberally in
furtherance of the purpose for which they were
enacted and, if possible, so as to avoid incongruous or
harsh results.”
In Director OWCP v. Newport News Shipbuilding
&Dry Dock Co.514 US 122, 132, Harcum, this Court
unanimously determined that one of the Director’s
principal roles under the LHWCA “is to serve as the
broker of informal settlements between employers and
employees. 33 U. S. C. § 914(h)”
The First Circuit’s affirmation of Directors as partylitigants in opposition to avoid possible requests for
Fund payments, is incongruous and incompatible with
this main Congressionally mandated function of
facilitating compromise settlements under the Act’s
quid pro quo- scheme.
ii) Director’s Conflict of Interest as Party- Litigant
for Fund “Protection”.
The First Circuit’s finding of a Director’s litigation
interest in protecting the privately- financed Special
Fund is also incompatible with Congress’s specific
intention to exclude Directors under Sec.940 (f) from
appearing in proceedings in which they have an
interest.
25
Sec. 940 (f) ...”no deputy commissioner,
[Director] or Board member shall act in any such case
in which he is interested...”
It also indicates the First Circuit’s misunderstanding
of the Act’s Special Fund provisions for workers.
Sec. 918 (b), provides the Director with sole discretion
to order Fund payments, “to the extent he shall deem
advisable...after consideration of current payments
from the Special Fund.” Only the Director, and not
the ALJ, has enforcement functions under this
provision and he cannot be ordered to make such
payments. Since Congress’s statutory scheme places
Fund payments solely in the Director’s discretion,
“unjustified claims” on it are legally meaningless.
His bogus $200 million threat to the Copenhagen
bankruptcy trustees to avoid any LHWCA
compromise settlement was supported by the
apparent mis-characterization of Petitioners’ no- fault
wage- loss claims by the employer’s New York
attorneys, as personal injury class- action test cases.
This was disclosed in the January 6th. 2014 e -mail of
its Kromann- Reumert trustees to the Director.
A84,85
iii) Congressional Intent and the Director’s
Litigation “Standing”
Unlike Sec 932 (k) of the Black Lung Benefits Act,
(BLBA 30 USC 932 (k), Congress did not confer any
standing on Directors as a party in LHWCA
proceedings.
26
The issue of such standing arose in Harcum, when a
Director attempted to challenge a BRB decision as a
party- petitioner in a Federal review.
This Court scrutinized the LHWCA for evidence of a
Congressional intent to make Directors parties to its
procedures, which would give them standing as partypetitioners on review. It unanimously found that
“With regard to claims that proceed to ALJ hearings
the Act does not by its terms make the Director a party
to the proceedings, or grant her authority to prosecute
appeals to the Board or thence to the federal court of
appeals.” (Harcum 126)
The Court also considered whether a Director could
have a litigation interest in LHWCA proceedings
arising from an impairment of an administrative
function under the Act. 13 It reviewed four groups of
the Director’s administrative functions, including
disbursements from the Special Fund. (ibid 130, 131),
and found that a Director had to be “adversely affected
or aggrieved” for a litigation interest to arise. The
Court found that an agency exercising a governmental
function was not an adversely affected “person” under
Sec 702 Administrative Procedure Act (APA), which
could create such standing, citing its prior decision in
United States v. ICC 337 US 433, 434. Nor had
Congress conferred such standing on the Director
under the LHWCA. Harcum 129.
13 The Secretary of Labor’s administrative functions under the
Act are delegated to the Director; 20 CFR 701.201, 202.
27
For the purposes of the present Certiorari Petition, the
Court noted that;
“It is possible that the Director's status as
manager of the privately financed fund
removes her from the "person" limitation,
just as it may remove her from the
more general limitation that agencies qua
agencies are not ‘adversely affected or
aggrieved.’ We leave those issues to be resolved
in a case where the Director's relationship to
the fund is immediately before us.”
Harcum 128.
That issue is now before the Court in this petition. If
the Director is considered “adversely” effected, the
further question for this Court to consider would be
whether LHWCA Sec. 940 (f) excludes him in any
event, from appearing in such proceedings due to his
interest, as manager of the privately- financed Fund.
iv) Invalidity of Post- Harcum Regulations in
LHWCA Cases.
The First Circuit materially relied on the Labor
Secretary’s post- Harcum regulations, A 17,18, in
finding the Director had party- litigant standing
under the LHWCA to “protect” the Special Fund. A 19
The Secretary issued his own contrary construction of
the LHWCA in a flurry of post- Harcum regulations,
including 20 CFR 702.333 (b), authorizing the Director
to appear as a litigant in ALJ and BRB proceedings,
28
and 20 CFR 802. 201(a) deeming the Director to be
“adversely affected” in LHWCA proceedings entitling
him to review BRB decisions.
This Court previously noted in Potomac, supra, at 278279, that the Labor Department will ignore Federal
court interpretations of the LHWCA which it is
“dissatisfied” with and apply its own constructions.
For the Secretary’s regulations to be valid as delegated
rules to implement Congress’s intent under the
LHWCA, they must comply with that intent, as
construed by this Court in Harcum.
In J.W. Hampton Jr. Co. v. United States 276 US 394,
406 this Court previously noted that Congress can
secure the exact execution of its legislative intention
by delegating authority to executive branch officers to
make public regulations for its implementation.
Such delegated regulatory authority however requires
to be “exercised under and in pursuance of the law.”
The Secretary’s post- Harcum regulations, in so far as
the LHWCA is concerned, are clearly not in pursuance
of such law as authoritatively interpreted by this
Court. Nor are they consistent with Sec. 940 (f)
LHWCA, prohibiting Directors from participating in
such proceedings in pursuance of their interests. 14
14 Hampton was specifically referred to and argued in
Petitioners’ briefs filed with the First Circuit, BRB and ALJ.
The First Circuit curiously deemed this argument “waived”, A
20, based on a case, (US v. Zannio), where a party merely
29
In Ingalls Shipbuilding Co. v. Director OWCP 519 US
248, 263 this Court referred to these regulations on
the issue of whether a Director could appear in
LHWCA Federal review proceedings as a partyrespondent.
Though it expressed no finding on their validity in
LHWCA cases, it also found no basis or “guidance”
from them in determining the Director’s review
standing. As such, it determined he had only limited
representative standing on behalf of the BRB under
FRAP 15 (a), and not as a party- respondent. Ingalls,
265 15
If the regulations had been valid, the Director would
have been entitled in Ingalls to appear as an
“adversely” effected party- respondent in Federal
reviews, not as a FRAP 15 (a) representative of the
BRB. He would also be entitled to challenge BRB
decisions on review as a party- petitioner, contrary to
Harcum.
v) LHWCA Credibility Problems if Certiorari Writ
Denied.
incorporated all arguments of his co- defendants by general
reference, without giving any details.
15 Scalia J, who authored the unanimous decision in Harcum,
dissenting. Any involvement of Directors in Federal reviews
created a “zany system”. Ingalls 277.
30
The First Circuit’s decision effectively drives a “coach
and horses” through the LHWCA’s quid pro quo
compromise scheme and the Director’s administrative
support roles, especially as a Sec. 914 (h) “broker” of
compromise settlements.
In Petitioners’ cases, the Director, as a partydefendant, threatened the employer’s bankruptcy
trustees with a bogus $200 million claim if they
considered settling the wage- loss claims; only
revealed later in the Danish Press.
As a party- defendant, he made no administrative
arrangements for Petitioners’ independent medical
examinations in the four months before they arrived
from Denmark to testify in New York, prompting the
ALJ to issue an order against him to pay their extra
travel and hotel costs.
In Berger v. United States 295 US 78,88, this Court
reversed criminal convictions on the basis of the
egregious trial behavior of a US Attorney. Like the
Director, the US Attorney was a government
representative and not a party to the underlying
controversy. 16
If the First Circuit’s decision on the Director’s partylitigant standing is not reviewed and reversed, it will
seriously undermine Public confidence and credibility
in the LHWCA’s compromise- compensation scheme,
Harcum 131, found that “The LHWCA is a scheme for fair
and efficient resolution of a class of private disputes, managed
and arbitered by the Government.”
16
31
which is deemed to serve an important Public interest.
Baltimore & Philadelphia Steamboat Co. supra,414.
Labor Directors’ impartiality in executing their
administrative support roles in this regard, (especially
in appointing independent medical examiners), will be
impugned, if they simultaneously seek to dismiss such
cases in concert with employers.
Availability of legal representation in complex cases,
may also be detrimentally affected, if injured workers
now have to fight both the US government and their
employers.
This is clearly not what Congress intended. As in
Berger the First Circuit’s decision should be vacated
due to the Director’s egregious actions which warrant
remand for LHWCA computation and award of
Petitioners’ individual wage-losses.
B) Circuit Courts’ Conflict over Defense Base
Act Review Jurisdiction
This issue indicates over forty years of indifference by
the Federal Civil Justice system as to which Federal
court can exercise review jurisdiction in workers’
Defense Base Act cases.
The First Circuit disregarded the concept of
cooperative
judicial
Federalism
by
denying
Petitioners’ 28 USC 1254 (2) request for instructions
on whether Federal Circuit courts or Federal District
courts have such review powers. A 31
32
The 1941 Defense Base Act (DBA) 42 USC 1651 - 1655,
extended the LHWCA to United States and foreign
workers employed in essential support roles at its
numerous military bases throughout the world. In
addition to carpenters, firemen and freight handlers,
as in this case, DBA Sec. 1651 (6) also includes welfare
workers who assist US military personnel, such as the
United Services Organization, Red Cross and
Salvation Army.
Congress originally referred Federal review of agency
compensation orders to the Federal District courts
under both the LHWCA, 33 USC 921 (c) and the DBA
Sec. 1653 (b).
In 1972 it amended the LHWCA, referring such
reviews to the Circuit courts, but left DBA reviews to
the District courts unamended.
It is not clear if this was an oversight by Congress or
its intention. In the 1921 Packers and Stockyards Act
for example, Congress gave Federal Circuit courts
review jurisdiction over the Agriculture Secretary’s
decisions in Packers’ cases, but District court’s review
jurisdiction over his decisions in Stockyards’ cases.
i) Current Unresolved Jurisdictional Dispute
Among Circuit Courts
Five, (5) Circuit courts currently hold that only
District courts have jurisdiction to review workers
compensation orders in DBA cases, namely the
Fourth, Fifth, Six, Eleventh and DC Circuits
respectively in; Lee v. Boeing Co. 123 F.3rd. 801,805;
33
AFIA/CIGNA Worldwide v. Felkner 930 F. 2nd.
1111,1116; Home Indemnity Co. v. Stillwell 597 F.2nd.
87, 88-89; ITT Base Serv. v. Hickson 155 F. 3rd. 1272,
1275; and Hice v. Director OWCP 156 F. 3rd. 214 at
217.
Four (4) Circuit courts currently hold that only Circuit
courts have review powers in DBA cases, namely, the
First, Second, Seventh and Ninth Circuits respectively
in; Truczinskas v. Director OWCP, 699 F.3rd. 672,675;
Service Employees Int’l. Inc. v. Director OWCP,595 F.
3rd. 447,452; Pearce v. Director OWCP, 647 F. 2nd. 716,
720; and Pearce v. Director OWCP, 603 F. 2nd. 763,
769- 771.
ii) Conflict Within US Department of Labor
Agencies.
The Director argued in requesting the Second Circuit
to transfer Petitioners’ cases to the First Circuit, that
only Circuit courts have review jurisdiction in DBA
cases. See also 20 CFR 802.410 (a), at page 13 above.
But the Benefits Review Board advises parties in DBA
cases to first seek District court review. The Board’s
“NOTICE OF APPEAL RIGHTS” attached to its
denial- affirmation of Petitioners’ wage- losses, states
that;
“In Defense Base Act cases, The United States
Courts of Appeals for the Fourth, Fifth, Sixth
and Eleventh Circuits have held that decisions
must initially be appealed to the United States
District Court where the office of the appropriate
34
district director is located.” A 53
An identical notice appears on the Board website.
iii) Unresolved DBA Jurisdictional Conflict
Widely Criticized
This conflict has been the subject of extensive legal
writings, concluding that the Supreme Court’s
resolution of this jurisdictional problem is necessary
and long overdue. See for example “Appeal of Defense
Base Act Claims to the Courts: The Disagreement Over
Forum Continues.” Markovich & Parker. (August
2010, Pub. 135; Rel. 721; Benefits Review Board
Service-Longshore Reporter).
iv) Anomalous System of Federal Review.
Whether the District or Circuit courts will review DBA
claims is currently dependent on the Labor
Department’s allocation of injury claims from
geographically disparate overseas military bases, to
one of its eleven Compensation Districts across the
United States.
For example, DBA claims for injuries sustained on
Midway Islands bases will be referred to the Fourth
Compensation District in Atlanta, where the 11th.
Circuit Court holds that only the District courts have
Federal review jurisdiction. (ITT Base Serv. v. Hickson
155 F. 3rd. 1272, 1275)
But DBA claims from bases in Iraq will be referred to
the Second Compensation District in New York, where
35
the 2nd. Circuit holds that only Circuit courts have
review jurisdiction. (Service Employees Int’l. Inc. v.
Director OWCP,595 F. 3rd. 447,452)
This anomalous situation is inimical to the proper
administration of justice. The Federal courts’
continued failure to resolve this problem by
certification also undermines the concept of
cooperative judicial Federalism. See Lehman Bros. v.
Schein 416 US 386,391.
In Parrot v. Guardian Life Ins. Co. of America 338 F
3rd. 140, 144. (2nd. Cir. 2003), Sotomayor J, (now
Associate Justice of this Court), concurred in finding
certification for resolution of legal issues is necessary
for the proper administration of justice when the same
unresolved questions will continually recur in the
future.
v) Certiorari Writ Warranted to Ensure Legal
Validity of Review Orders.
The two conflicting opinions on review jurisdiction by
the various Circuit courts cannot both be correct. The
First Circuit has no review powers over Petitioners’
agency cases under 28 USC 1295 and is entirely
reliant on the correct legal interpretation of
Congress’s review intentions in DBA- LHWCA cases.
That interpretation can only be authoritatively
supplied by this Court.
Orders of Federal courts which completely lack
jurisdiction, are legally null and void. United States
Aid Funds v. Espinosa 559 US 260,270. In Petitioners’
36
cases, the First Circuit cannot rely on a jurisdictional
error for possible “finality of judgement” enforcement
of its order, as it was fully aware of its doubtful
unresolved review jurisdiction in denying Petitioners’
28 USC 1254 (2) certification request.
Unless a certiorari writ is issued on this question, the
uncertain legal validity of such Federal review orders
will continue indefinitely, creating an ongoing
problem for the Federal administration of justice in
DBA cases.
CONCLUSION
For the compelling reasons stated above, a Writ of
Certiorari to the First Circuit Court of Appeals should
issue on the question presented.
Dated: New York, New York
November 2, 2021
Ian Anderson
Counsel of Record
P.O. Box 150362
Kew Gardens, NY 11415
(718) 846- 9080
iandersonadvocate@msn.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.