Opposition Brief — St. John Stevedoring Co. v. Wilfred

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Nos. 87-273 and 87-381 NOV: 16 98?

Jn the Supreme Court of the Gnited

OCTOBER TERM, 1987

St. JOHN STEVEDORING COMPANY, ET AL.,

PETITIONERS

JOHNETTA WILFRED

ALENE C. JONES, PETITIONER

St. JOHN STEVEDORING COMPANY, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

GEORGE R. SALEM

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

STEVEN J. MANDEL

Counsel for Appellate Litigation

NATHANIEL I. SPILLER

Attorney

Department of Labor

Washington, D.C. 20210

QUESTIONS PRESENTED

1. Whether a surviving dependent parent’s death

benefits under the Longshore and Harbor Werkers’ Com-

pensation Act, 33 U.S.C. 901 ef seg., may be subject to an

offset as the result of a third-party settlement signed by the

decedent and the surviving parent.

2. Whether the court of appeals properly concluded

that a surviving minor child is entitle! to death benefits

under the Longshore and Harbor Workers’ Compensation

Act, as an “acknowledged illegitimate child dependent

upon the deceased,” where ample uncontroverted evidence

indicated both acknowledgement of paternity and

dependency.

3. Whether a surviving minor child’s claim to receive

death benefits under the Longshore and Harbor Workers’

Compensation Act may be extinguished or reduced by a

settlement of a third-party tort suit that was entered into

by the employee on behalf of himself and his “heirs [and]

next of kin,” but in which the child was not separately

represented.

(1)

TABLE OF CONTENTS

Page

EES SR aE ee a ae |

aerate Oe ote eis awa dhe eee wee ee Came 1

ea Site ed gw ban, 6 4.48 BO Eh rar ae BO RT ot 2

ee ls dab b Meek Ae Moe ee Owe 6

AN SEE: Da a eee 12

TABLE OF AUTHORITIES

Cases:

Aetna Life Ins. Co. v. Moses, 287 U.S. 530 (1933) ....... 11

Anderson v. City of Bessemer City, 470 U.S. 564

BOE lt a ASE Sn a 8

Bloomer v. Liberty Mutual Ins. Co., 445 U.S. 74

es cache sa weenua es 11

Bose Corp. v. Consumers Union of the United States,

a PE UUED occ escacs cb saekeeuseass 7

Carter v. Director, OWCP, 751 F.2d 1398 (D.C. Cir.

eI, is sods gig ya Bekah w ia eda wae 11

Great Lakes Dredge & Dock Co. v. Brown, 47 F.2d 265

Ne 11

Ingalls Shipbuilding Division v. White, 681 F.2d 275

ies ci pividh eae a 1 oes ade e Ss 4

International Mercantile Marine Co. v. Lowe, 93 F.2d

663 (2d Cir.), cert. denied, 304 U.S. 565 (1938) ....... 10-11

Inwood Laboratories, Inc. v. Ives Laboratories, Inc.,

EE Cr oe ae a 7

Kelley v. Southern Pacific Cu., 419 U.S. 318 (1974) ..... 8

Puig v. Standard Dredging Corp. 599 F.2d 467 (Ist Cir.

NE Nan Sache LG Seu aa a pene es 10

Pullman-Standard v. Swint, 455 U.S. 273 (1982) ........ 7,8

Shahady v. Atlas Tile & Marble Co., 673 F.2d 479 (D.C.

ee yy osha vas ee ta 4

Standard Dredging Corp. v. Henderson, 150 F.2d 78

in nk Cho des esdebe cue cs teen 65 8

Texas Employers’ Insurance Ass’n v. Shea, 410 F.2d 56

et ag sy ey kaa bbe wk 5, 8, 9

Cases — Continued: Page

Texas Employers’ Insurance Ass’n v. Sheppeard, 62 F.2d

ob FE ene eae Perea ea 8

Travelers Insurance Co. v. Marshall, 634 F.2d 843 (Sth

Se I eee eat eres asebuehhe waked ee 7

United States v. Fidelity & Guaranty Co. v. Britton, 188

ee Ls I ED oR vies wa awceeapesseeeness 8

United States v. Singer Mfg. Co., 374 U.S. 174 (1963) ... 7-8

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164

coats nrey san Ra Skne eee ee ean e cEwk a 8

Weyerhaeuser Timber Co. v. Marshall, 102 F.2d 78

I re, Crete hain ts ian p ek awe asian ae ‘7

Constitution, statutes and regulations:

U.S. Const. Amend. XIV (Equal Protection Clause) ..... 8

Longshore and Harbor Workers’ Compensation Act,

REE SR, OF” A ee ren ant Sree 2

PONE ou dias xis sc a sea wdddess¥es a3, 7

i a ca acca new eeenisaanaes 3

i Ns I os wis wiewe cagawsacsaeneue 7

se wah owns ea aad an aeenes 6, 11

Be REE eee 11

§ 33(f), 33 U.S.C. (Supp. II] 933(f) ........ 5, 6, 9, 10, 11

Fe is ID ob ak eds eeadded oes 4, 5, 6, 9, 10

§ 33(g)(1), 33 U.S.C. (Supp. IIT) 933(g)(1) ......... 4

Longshore and Harbor Workers’ Compensation Act

Amendments of 1984, Pub. L. No. 98-426, 98 Stat.

1639:

I ie aay a Se el Mn ew a ae 10

eo RR er rr ere 10

Longshoremen’s and Harbor Workers’ Compensation

Act Amendments of 1972, Pub. L. No. 92-576, § 5(d),

a oe ew eatiom ah nak 7

20 C.F.R.:

I aay aes aa a ea 4

re oe ae waa eee ae 4

I A a oS keen pede ale om widen be 4

Miscellaneous:

2 A. Larson, The Law of Workmen’s Compensation

DPR ote De anes cig We gts aN CAE Ds Bah 10

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-273

ST. JOHN STEVEDORING COMPANY, ET AL.,

PETITIONERS

JOHNETTA WILFRED

No. 87-381

ALENE C. JONES, PETITIONER

ST. JOHN STEVEDORING COMPANY, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (St. John Pet. App.

A1-A7)! is reported at 818 F.2d 397. The opinion of the

Benefits Review Board (St. John Pet. App. B1-B9) is

reported at 18 Ben. Rev. Bd. Serv. (MB) 68. The opinion

of the administrative law judge (St. John Pet. App.

C1-C10) is reported at 17 Ben. Rev. Bd. Serv. (MB) 109.

JURISDICTION

The judgment of the court of appeals was entered on

June 3, 1987. Petitions for rehearing were denied on

' “St. John Pet. App.” refers to the appendix to the petition for a

writ of certiorari in No. 87-273.

(1)

July 1, 1987 (St. John Pet. App. A8-A9). The petition for

a writ of certiorari in No. 87-273 (St. John Pet.) was filed

on August 15, 1987. The petition for a writ of certiorari in

No. 87-381 (Jones Pet.) was filed on September 1, 1987.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. John Henry Jones was injured on May 27, 1979,

while working for petitioner St. John Stevedoring Co. (St.

John) (St. John Pet. App. Al, B2, C3). As a result of that

injury, St. John paid compensation benefits to Jones

under the Longshore and Harbor Workers’ Compensation

Act (LHWCA or the Act), 33 U.S.C. 901 ef seq.

The issues in this case arise from an agreement entered

into on December 23, 1981, settling a tort suit Jones had

brought against third parties in connection with his injury

(St. John Pet. App. Al-A2).? The settlement agreement?

was executed by Jones, his mother (petitioner Alene

Jones), his employer (St. John), the employer’s insurer

(Insurance Company of North America (INA)) and

several tort defendants (id. at A2), and provided that the

tort defendants would immediately pay to Jones $1.78

million, and further provided for prospective annual

payments of $280,000 for the rest of Jones’s life, commen-

cing in December 1982 (ibid.).* The settlement agreement

contemplated that if Jones died before December 1986,

then the annual payments would continue to be paid

through December 1986 to his mother or, in the event of

2 By the date of the settlement Jones’s LHWCA compensation

totaled $291,839.71 (St. John Pet. App. Al).

3 The settlement agreement is reproduced at pages 24-33 of the ap-

pendix to the petition for a writ of certiorari in No. 87-381.

4 In addition, Jones’s mother received an immediate cash payment

of $5,000 (Pet. App. A2).

her death, to Jones’s estate (ibid.). In addition to resolving

all claims against the third-party tortfeasors, the settle-

ment provided that St. John and its insurer would be fully

reimbursed for the benefits they paid under the LHWCA

and would receive “ ‘a credit * * * for accrual of all com-

pensation benefits and medical expenses in the future’ ”

(ibid.). The settlement agreement specified the parties’ in-

tent to bind Jones’s “ ‘heirs, executors, administrators,

assigns, next of kin, or other legal representatives’ ” (id. at

A6).

Jones died in June 1982, before the date upon which the

first annual payment prescribed in the agreement was due

(St. John Pet. App. A2, B2, C3). Under the terms of the

settlement, therefore, Jones’s mother received more than

$1.4 million ($5,000 plus five annual payments of

$280,000 each) (id. at A6). Independent of the settlement,

Jones’s mother filed a separate claim under Section 9 of

the LHWCA, 33 U.S.C. 909, for death benefits from the

employer, as did Sheryl Wilfred, on behalf of Jones’s

alleged minor daughter Johnetta Wilfred (Pet. App. A2,

Cl). Those latter claims are the subject of this action.

2. The administrative law judge (ALJ) awarded

LHWCA death benefits to Jones’s mother on the ground

that she had been economically dependent on Jones (St.

John Pet. App. C4), but denied benefits to Jones’s

putative daughter (id. at C10). The ALJ explained that

State law is dispositive on the question whether a claimant

is decedent’s “child” for purposes of statutory eligibility

“because the LHWCA does not define this operative term”

(id. at C5). The ALJ concluded that, under the standards

established by the law of Louisiana (the state in which the

> Section 2(14) of the LHWCA, 33 U.S.C. 902(14), says that a child

entitled to death benefits includes an “acknowledged illegitimate child

dependent upon the deceased.”

the child was domiciled (id. at C5-C6)), “it ha[d] not been

definitively established that the decedent was the natural

father” (id. at C9).

3. The Benefits Review Board (BRB or the Board)

reversed the ALJ’s denial of benefits to the child (St. John

Pet. App. B9).° The Board ruled that federal, not state,

law controlled whether Jones had acknowledged paternity

for purposes of the Act, and that, under federal law, “the

evidence overwhelmingly supports a finding of

acknowledgement” (id. at B4). The Board also concluded

that “uncontradicted testimony” established the child’s

dependency as a matter of law (id. at B6) and that she was

therefore entitled to receive statutory death benefits.

The Board affirmed the ALJ’s award of benefits to

Jones’s mother. It rejected (St. John Pet. App. B7) the

argument that Section 33(g) of the Act, 33 U.S.C. 933(g),

requiring third-party settlement agreements to be ap-

proved in writing by the employer and timely filed with the

Department of Labor, bars statutory compensation here.

That provision, it said, is applicable only if the amount of

the third-party settlement is less than the compensation

awarded under the Act, and in this case the settlement was

for considerably more than the amount of statutory death

benefits (St. John Pet. App. B7). Further, the Board

stated (ibid.) that, in any event, the procedural formalities

of Section 33(g) did not apply to Jones’s mother because,

as Jones was still living at the time of the settlement, his

mother was not then a “person entitled to compensation”

in the form of death benefits within the meaning of Sec-

tion 33(g)(1), 33 U.S.C. (Supp. III) 933(g)(1).

¢ The Director, Office of Workers’ Compensation Programs, to

whom the Secretary of Labor has delegated authority to administer

the Act (20 C.F.R. 701.202, 802.410(b)), is an automatic party in

LHWCA cases. 20 C.F.R. 801.2(10); Ingalls Shipbuilding Division v.

White, 681 F.2d 275, 279 (Sth Cir. 1982); Shahady v. Atlas Tile &

Marble Co., 673 F.2d 479, 482 (D.C. Cir. 1982).

Relying upon its conclusion that Jones’s mother was not

a “person entitled to compensation” within the meaning of

Section 33(g), the Board also reasoned that St. John was

not entitled under Section 33(f), 33 U.S.C. 933(f), to

reduce its LHWCA benefits payments to Jones’s mother

to reflect the third-party settlement (St. John Pet. App.

B8). In the Board’s view, “the settlement was entered into

prior to death and presumably compensated the employee

and mother for loss due to the employee’s disability, rather

than loss due to his death” (ibid.).

4. The court of appeals affirmed the Board’s award of

benefits to Jones’s illegitimate child and reversed the

Board’s denial of St. John’s request that money paid pur-

suant to the settlement be credited against benefits owing

to Jones’s mother (Pet. App. A7).

The court of appeals reasoned that Johnetta Wilfred

was an “acknowledged illegitimate child dependent upon

the deceased” (33 U.S.C. 902(14)), and thus was entitled to

LHWCA death benefits. The court relied (St. John Pet.

App. A4) on Texas Employers’ Insurance Ass’n v. Shea,

410 F.2d 56 (Sth Cir. 1969) and Weyerhaeuser Timber Co.

v. Marshall, 102 F.2d 78 (9th Cir. 1939)), to support the

proposition that even if state law precludes a designation

of paternity, LHWCA benefits may still be awarded if a

paternal link is proved. On the facts of this case, the court

of appeals concurred in the Board’s conclusion that “ ‘the

evidence overwhelmingly supports a finding of

acknowledgment’ ” (St. John Pet. App. A4). The court

also agreed with the Board that the child, who was in utero

at the time of Jones’s injury, was dependent on Jones (id.

at A4-AS5).

With respect to Jones’s mother, the court stated that it

“do[es] not disagree necessarily with the reasoning of the

BRB on th[e] statutory interpretation” that Jones’s mother

was Statutorily barred from death benefits or required by

Statute to set off setthkement monies against them, because

at the time the settlement agreement was formalized she

was not a “person entitled to compensation” under either

Section 33(g) of Section 33(f) of the LHWCA. But the

court also found that by participating in the settlement

Jones’s mother had “obligated herself to give the employer

and compensation carrier credit for all sums she received

as a result of the tort settlement agreement” (St. John Pet.

App. A6). Since her recovery under the settlement would

far exceed any death benefits under the LHWCA, the

court therefore decided that St. John and its insurer “are

entitled to a credit for the full amount of compensation

benefits owed to the decedent’s mother” (ibid.).

By contrast, the court rejected St. John’s argument that

a similar set-off should be applied to the minor child’s

LHWCA benefits. Although the settlement agreement

purported to bind Jones’s “ ‘heirs * * * [and] next of kin’ ”

(St. John Pet. App. A6), at the time of the settlement

Johnetta Wilfred was not represented by a statutory guar-

dian responsible for protecting her rights (§ 11, 33 U.S.C.

911). The court therefore concluded that Jones lacked

authority to settle or waive in advance any right to death

benefits that might accrue to his child (St. John Pet. App.

A7).

ARGUMENT

The decision of the court of appeals is correct. It does

not conflict with any decision of this Court or of any other

court of appeals. Review by this Court is therefore not

warranted.

1. Petitioners in No. 87-273 (St. John and INA) con-

tend (Pet. 7-10) that the court of appeals and the Board

improperly substituted their views for those of the ALJ on

the question of filiation and impermissibly made findings

as to dependency even though the ALJ had not reached

that issue. Petitioners, however, misperceive the nature of

the review function exercised by the Board and affirmed

by the court of appeals.

Section 9(c) of the LHWCA, 33 U.S.C. 909(c), entitles a

surviving “child” to death benefits in the event of an “in-

jury [that] causes death,”’ and Section 2(14), 33 U.S.C.

902(14), defines “child” as including an “acknowledged il-

legitimate child dependent upon the deceased.” The ALJ

held (St. John Pet. App. C5-C6) that state law governs the

question whether one is a decedent’s “child” within the

meaning of the Act “because the LHWCA does not define

this operative term.”

The Board correctly applied federal rather than state

law to this issue and the court of appeals correctly upheld

that decision. It has long been settled that in determining

whether an illegitimate child is entitled to benefits under

the Act, the statutory definition is “complete in itself” and

does not require resort to state law. Weyerhaeuser Timber

Co. v. Marshall, 102 F.2d 78, 81 (9th Cir. 1939) (“Con-

gress having provided all definitions necessary to the

determination of whether claimant is a ‘child’ and its

authority being paramount and exclusive as to the subjects

on which it has legislated, it is not allowable to go beyond

the Act provisions.”).® It is likewise settled under the

7 At the time of the employee’s death in 1982, the LHWCA also

provided death benefits “if the employee who sustains permanent total

disability due to the injury thereafter dies from causes other than the

injury.” Longshoremen’s and Harbor Workers’ Compensation Act

Amendments of 1972, Pub. L. No. 92-576, § 5(d), 86 Stat. 1253-1254.

That broader death benefits provision was in effect between 1972 and

1984. See, e.g., Travelers Insurance Co. v. Marshall, 634 F.2d 843

(Sth Cir. 1981).

§ Having found that the ALJ’s findings of filiation rested on an er-

roneous view of the law, the Board correctly set them aside on that

basis. Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982). See aiso

Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S.

485, 501 (1984); Inwood Laboratories, Inc. v. Ives Laboratories, Inc.,

456 U.S. 844, 855 n.15 (1982); United States v. Singer Mfg. Co., 374

LHWCA that acknowledgment —the statutory standard

for paternity? —“does not require a notary’s seal or any

other ritualistic proclamation.” Texas Employers’ In-

surance Ass'n v. Shea, 410 F.2d 56, 61 (Sth Cir. 1969).

U.S. 174, 194 n.9 (1963). Moreover, as the court of appeals noted (St.

John Pet. App. A4), the Board “readily concluded that ‘the evidence

overwhelmingly supports a finding of acknowledgment.’ ” Remand

was unnecessary on the question of filiation because “the record per-

mits only one resolution of the factual issue.” Pul/man-Standard, 456

U.S. at 292 (citing Kelley v. Southern Pacific Co., 419 U.S. 318,

331-332 (1974)). See Anderson v. City of Bessemer City, 470 U.S. 564,

573 (1985).

For the same reason, there was no need for the Board to remand to

the ALJ on the question of dependency. Johnetta Wilfred was con-

ceived five days before her father was injured, and “[d]uring the time

Sheryl Wilfred carried Johnetta to term, she received regular financial

aid from John Henry Jones” (St. John Pet. App. A5). The court of

appeals, concurring in the Board’s finding of dependency, emphasized

(ibid. (emphasis in original)):

The uncontroverted testimony reflects that from the time Johnet-

ta was in utero, and continuing to the date of his death, John

Henry Jones sent Ms. Wilfred hundreds of dollars for their sup-

port, notably in regular payments. In addition, he bought the

child clothing and gifts.

As the court held (ibid.), these facts fully established dependency

under the LHWCA. See Texas Employers’ Insurance Ass’n v. Shea,

supra; United States v. Fidelity & Guaranty Co. v. Britton, 188 F.2d

674 (D.C. Cir. 1951); Standard Dredging Corp. v. Henderson, 150

F.2d 78 (Sth Cir. 1945); Texas Employers’ Insurance Ass’n v. Shep-

peard, 62 F.2d 122 (Sth Cir. 1932).

® Petitioners suggest (St. John Pet. 7-8), based on Weber v. Aetna

Casualty & Surety Co., 406 U.S. 164 (1972), that the acknowledgment

requirement is unconstitutional. Even if this argument were

meritorious, it would not help their case; eliminating acknowledgment

as a factor would not strengthen the employer’s case because it would

become easier for a child to establish entitlement to benefits. In any

event, Weber held that a state worker’s compensation statute violates

the Equal Protection Clause of the Fourteenth Amendment by

discriminating against an unacknowledged illegitimate who was other-

wise dependent on the injured worker. “{D]Jependency, not the legality

2. Petitioner in No. 87-381, Jones’s mother, contends

(Pet. 9) that the court of appeals incorrectly required her

to set off against her statutory death benefits the amount

received from the third-party tortfeasors—thus entirely

cancelling out her claim to statutory benefits.'° She con-

tends that since she was not entitled to any benefits under

the LHWCA at the time the third-party settlement was ex-

ecuted, the settlement could not have extinguished her

statutory right to death benefits (id. at 10). In the alter-

native, petitioner contends that her participation in the

settlement was not fatal to her right to receive death

benefits under the LHWCA as a matter of contract inter-

pretation (id. at 11-14).

The Board held, and the court of appeals did “not

disagree necessarily” that Mrs. Jones’s entitlement to

benefits was not barred by her failure to comply with the

procedural requirements of Section 33(g), nor were her

benefits subject to an offset under Section 33(f). Section

33(g) provides that in order for a “person entitled to com-

pensation” to compromise a claim against a third-party for

less than the total compensation payable under the statute,

that person must first secure the employer’s permission to

settle. That Section is not applicable here because the set-

tlement amount exceeded the death benefits (see note 10,

supra). Section 33(f),'' which generally provides for off-

of the father’s nuptials, [has always been] the keynote of coverage”

under the LHWCA (Texas Employers’ Insurance Ass’n v. Shea, 410

F.2d 56, 59 (Sth Cir. 1969)).

10 As previously noted (page 3, supra), petitioner received $5,000 in

her own right during Jones’s lifetime, and $1.4 million after his death

under the contingency provided for in the settlement. By contrast,

petitioner’s statutory death benefits could not amount to more than a

few thousand dollars a year. See St. John Pet. App. B7 & n.5.

'! Section 33(f), 33 U.S.C. (Supp.IID) 933(f), provides:

If the person entitled to compensation institutes proceedings

within the period prescribed in subsection (b) of this section the

SLOT Ne

set of third-party tort recoveries against compensation

benefits, likewise does not apply because, as the Board

stated, Mrs. Jones was not a “person entitled to compensa-

tion” within the meaning of that section at the time she

entered into the settlement (St. John Pet. App. B7-B8).

The court of appeals, without questioning any of this

reasoning, “perceiv[ed] a contractual basis for requiring a

credit,” arising from an explicit term of the settlement

agreement which Jones’s mother signed (id. at A6).

The issue does not warrant further review. The decision

of the court of appeals rests on the particular language of

the settlement agreement in this case, a factbound deter-

mination lacking in general application or significance

other than to the parties. In any event, the court of appeals

reached the correct result. !2

employer shall be required to pay as compensation under this

chapter a sum equal to the excess of the amount which the

Secretary determines is payable on account of such injury or

death over the net amount recovered against such third person.

Such net amount shall be equal to the actual amount recovered

less the expenses reasonably incurred by such person in respect to

such proceedings (including reasonable attorneys’ fees).

The Longshore and Harbor Workers’ Compensation Act Amend-

ments of 1984, Pub. L. No. 98-426, §§ 21(c) and (d), 98 Stat. 1652,

amended Section 33(f) and (g) in ways that are not material to the

disposition of the petitions in this case.

'2 Like the court of appeals, we do not quarrel with the Board’s

conclusion that because Jones’s mother was not then entitled to

LHWCA benefits Section 33(f) was inapplicable when the settlement

was executed. A basic principle of workers’ compensation law is that a

dependent’s right to death benefits is independent from the employee’s

compensation claim and does not arise until the employee’s death. 2

A. Larson, The Law of Workmen’s Compensation § 64.11 (1987);

Puig v. Standard Dredging Corp., 599 F.2d 467, 469 (ist Cir. 1979)

(“the cases under the Longshoremen’s Act have consistently held that

the right to death benefits is separate and distinct from the right to

disability benefits and does not arise until death occurs”); Jnterna-

tional Mercantile Marine Co. v. Lowe, 93 F.2d 663, 665 (2d Cir.)

(“[w]hen death occurs, a new cause of action arises which requires an

3. Petitioners in No. 87-273, St. John and INA, fur-

ther contend (Pet. 5-7) that the third-party settlement en-

titled them to an offset against the future death benefits

not only of Jones’s mother—a signatory to the

agreement —but against the future death benefits of the

minor daughter as well. In support of this contention,

petitioners recite (id. at 6) that Jones settled his third-party

claim, not only for himself, but also for his “ ‘next of

kin’ ” and thereby cut off the child’s claims against the

third-party tortfeasors.

The court of appeals stated that Jones “did not have the

power to settle or waive in advance any death benefits that

might accrue to his minor daughter” (Pet. App. A7). As

the court noted (ibid.), the LHWCA favors the protection

of the rights of minors, specifically through the appoint-

ment, as appropriate, of a guardian “by a court of compe-

tent jurisdiction.” 33 U.S.C. 911. In the present case, there

was no court-appointed legal guardian to represent the

adjudication on all questions such as accident, notice of death, claim,

causal relationship, and dependency”), cert. denied, 304 U.S. 565

(1938).

The Board’s view would not preclude the possibility that Section

33(f) became applicable when Mrs. Jones became “entitled to compen-

sation,” viz., at the moment of her son’s death. Under this reading,

any amount that she recovered under the settlement agreement before

her son’s death would not be subject to the statufory offset. The

amount she received after his death, however, could be offset against

future death benefits if the settlement agreement contemplated that

result. Since such an offset, limited to payments received after the set-

tling parent became entitled to benefits, is permitted by the language

and purpose of Section 33(f), it is not inconsistent with the policy

against release of statutory entitlements expressed in Section 16 of the

LHWCA, 33 U.S.C. 916. See Great Lakes Dredge & Dock Co. v.

Brown, 47 F.2d 265 (N.D. Ill. 1930). Moreover, recognition of an off-

set under Section 33(f) fully effectuates the statutory policy against

double recovery. Aetna Life Ins. Co. v. Moses, 287 U.S. 530, 542

(1933). See also Bloo:nerv. Liberty Mutual Ins. Co., 445 U.S. 74, 79,

87 (1980); Carter v. Director, OWCP, 751 F.2d 1398, 1400-1402 (D.C.

Cir. 1985).

interests of the child in the settlement. Unlike Jones’s

mother, therefore, his daughter did not participate in ex-

ecution of the settlement, and she received nothing under

the settlement either before or after her father’s death. On

the other hand, petitioners St. John and INA had in-

tervened in the third-party suit and were parties to the set-

tlement. See Jones Pet. App. 24, 32-36. Petitioners’ in-

terests were fully represented and they have no cause to

complain that the settlement indirectly prejudiced their

rights as against the unrepresented minor.

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.