Opposition Brief — Tideland Welding Service v. Sawyer

No. 89-960

j ’

—

. CLERK

Iu the Supreme Court of the uit wea tide

OCTOBER TERM, 1989

TIDELAND WELDING SERVICE, ET AL., PETITIONERS

V),

WALTER SAWYER, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

ROBERT P. DAVIS

Solicitor of Laboi

ALLEN H. FELDMAN

Associate Solicito)

NATHANIEL I. SPILLER

Senior Appe llate Attorne y

ANNE PAYNE FUGETT

Attorney

Department of Labor

Washington, D.C. 20210

BEST AVAILABLE COPY" Sai

QUESTION PRESENTED

Whether, on a petition for review of the Benefits

Review Board’s decision awarding compensation to

two employees under the Longshore and Harbor

Workers’ Compensation Act, the court of appeals

properly dismissed the petition on the ground that

the Board lacked jurisdiction over petitioners’ appeal

from the decision of the administrative law judge.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Griggs V. Provident Consumer Discount Co., 459

a aes ani 7

ICC v. Brotherhood of Locomotive Engineers, 482

I a sion ca gnenaxvbinunesvdknseadbesemshenms 7

Jones V. Illinois Cent. Gulf R.R., 846 F.2d 1099

ed cae on) sas puneeseeenhioan 7,8

Potomac Electric Power Co. Vv. Director, OWCP,

i cevesennensscasppesvansiecencerseemes 8

Tideland Welding Service v. Director, OWCP, 817

ye Be EE i ae Ly 6 3

Udall v. Tallman, 380 U.S. 1 (1965) -200002 2. 9

Statutes, regulations, and rules:

Longshore and Harbor Workers’ Compensation

pS EO EP ae” 2

RS eee 3, 6

MOND cco ieevnncenncavensvscnecavennrenvevvarsers 4

i 5 caniausepeeessinvenscbereeessuas : 3

20 C.F.R.:

Section 802.205A (a) (1987) 0.000000 eee. 4,6,9

Section 802.205A (c) (1987) ......00000000... pred 8

Seciton 802.205A (d) (1987)... ee. 8

Section 802.205A (e) (1987) 0.0.0... 5, 6, 7,8

Section 802.206 .............. SU NT ON TRON 4

IV

Statutes, regulations and rules—Continued: Page

Fed. R. Civ. P.:

8h Ra ERs MOA Sar eh Lee Ee einen 8,9

NI oi hkdd Citnhsgniulnk toseseauntegerateonitete DEEN OLS DD, 7

Miscellaneous:

43 Fed. Reg. 42,144 (1978) .....0..0 00 ee. 7

Iu the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-960

TIDELAND WELDING SERVICE, ET AL., PETITIONERS

v.

WALTER SAWYER, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. B1-

B21) is reported at 881 F.2d 157. The opinions and

orders of the Benefits Review Board (Pet. App. Al-

A6; App., fra, la-2a, 3a-8a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered

on August 24, 1989. A petition for rehearing was

denied on September 18, 1989. Pet. App. C1-C2. The

petition for a writ of certiorari was filed on Decem-

ber 14, 1989. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. In 1980, petitioner Tideland Welding Service

employed Walter Sawyer and Glynn Rhodes as

welders at a shipyard in Morgan City, Louisiana.

After leaving work on June 21, 1980, Sawyer and

Rhodes were injured in a car accident. Sawyer and

Rhodes later filed claims for compensation with the

Director, Office of Workers’ Compensation Programs,

United States Department of Labor (Director), un-

der the Longshore and Harbor Workers’ Compensa-

tion Act (LHWCA), 33 U.S.C. 901 et seg. Sawyer

and Rhodes sought compensation from petitioner

Tideland Welding Service and its insurer, petitioner

Liberty Mutual Insurance Company. After a hear-

ing, an administrative law judge denied those claims

in December 1982, concluding that “the place where

the accident occurred did not constitute a maritime

situs and that [Sawyer and Rhodes] were not in the

course o[f] their employment at the time of the acci-

dent.” Pet. App. B4.

In May 1984, the Benefits Review Board reversed

that decision, concluding that Sawyer and Rhodes

should be compensated. The Board therefore re-

manded the case to the ALJ “to determine the mea-

sure of compensation.” Pet. App. B4. Petitioners

filed an appeal from the Board’s decision to the

Fifth Circuit. The court of appeals dismissed that

appeal on the ground that the Board’s decision was

not a final order subject to appellate review. Jd. at

B5-B6.

2. On November 25, 1986, the ALJ issued his deci-

sion on remand, awarding weekly benefits of $376 to

Sawyer and $270 to Rhodes. Because petitioner

Liberty Mutual had not paid either claimant any

benefits since the date of the accident, the ALJ also

3

ordered Liberty Mutual to pay Sawyer $100,000 and

Rhodes $30,000 by December 6, 1986. Pet. App. B5.

On December 3, petitioners asked the Benefits Review

Board to stay the ALJ’s award. On December 5,

Sawyer and Rhodes filed a motion for reconsideration

before the ALJ. Jd. at B5-B6, B8.

On December 8, 1986, the Board, construing peti-

tioners’ request for a stay as both a notice of appeal

and a motion to stay, docketed the case for review

and denied the stay.’ One week later, Sawyer and

Rhodes asked the ALJ for permission to withdraw

their previously filed reconsideration motion. On

January 6, 1987, while that withdrawal request was

pending before the ALJ, Sawyer and Rhodes also

filed an appeal from the ALJ’s decision to the Bene-

fits Review Board. And on January 13, 1987, the

ALJ granted the request to withdraw the reconsid-

eration motion. Pet. App. B6-B7.

3.a. In April 1987, the Benefits Review Board dis-

missed the appeals filed by Sawyer and Rhodes. Pet.

App. Al-A6. The Board concluded that those appea!s

were filed outside the 30-day deadline set forth in 33

U.S.C. 921(a).2 “Since claimants withdrew their

1 Petitioners had also filed a motion for an emergency stay

in the court of appeals, together with a petition for review of

the ALJ’s decision. The court of appeals initially granted a

stay. On June 1, 1987, the court of appeals dissolved that stay

and dismissed petitioners’ appeal for lack of jurisdiction un-

der 33 U.S.C. 921(c). Pet. App. B6-B7; Tideland Welding

Service V. Director, OWCP, 817 F.2d 1211 (5th Cir.).

= Section 921(a) provides:

A compensation order shall become effective when filed

in the office of the deputy commissioner as provided in

section 919 of this title, and, unless proceedings for the

suspension or setting aside of such order are instituted

4

motion [for reconsideration],” the Board concluded

that the motion was “without effect,’ and could not

trigger the tolling provision of 20 C.F.R. 802.205A

(a) (1987). Pet. App. A4-A5." Alternatively, the

Board concluded that even if the motion for recon-

sideration was effective, the appeals were ‘untimely

because [they were] filed prior to the administrative

law judge’s Order on the Motions.” /d. at A5.*

b. In March 1988, the Board considered petition-

ers’ appeal and affirmed the ALJ’s decision on the

merits. App., infra, 3a-8a. The Board reaffirmed

its earlier decision, concluding that “the claimants

were injured within the scope and course of their

employment pursuant to the ‘trip payment exception’

to the ‘coming and going rule,’”’ and that “claimants

were injured on a covered situs.” App., infra, 5a.

The Board also rejected petitioners’ contention that

they were ‘entitled, under the Constitution, to have

an Article III court review the Board’s Order prior

to paying claimants the compensation awarded by

’

as provided in subsection (b) of this section, shall become

final at the expiration of the thirtieth day thereafter.

Section 921(b) provides for review of compensation orders

before the Benefits Review Board. 33 U.S.C. 921(b).

320 C.F.R. 802.205A (a) (1987) provided:

A timely motion for reconsideration of a decision or

order of an administrative law judge or deputy commis-

sioner shall suspend the running of the time for filing a

notice of appeal.

As the court of appeals pointed out, see Pet. App. B11 n.2,

the pertinent regulations have since been amended in a man-

ner not material to this case. (They have also been redesig-

nated as 20 C.F.R. 802.206.)

4In December 1987, the Board denied a motion for recon-

sideration filed by the Director. App., infra, la-2a.

5

the administrative law judge.” App., infra, 6a. As

the Board stated:

[A]lthough it is clear that adjudication of

workers’ compensation claims under the Act in-

volves “private rights,” it is equally clear that

Article III of the Constitution does not require

Article III judges to perform every stage of ad-

judication where “private rights” are at stake.

App., 7nfra, 8a.

c. Petitioners then sought review of the Board’s

decision in the court of appeals.

4. In August 1989, the court of appeals dismissed

the petition for review and vacated the Board’s de-

cision, holding that because the Board lacked juris-

diction to consider petitioners’ appeal from the AL.J’s

decision, the court lacked jurisdiction to review. Pet.

App. B1-B21. The court first concluded that any ap-

peal of the ALJ’s decision filed while a motion for

reconsideration was pending was subject to dismissal

under the regulations even if the motion was later

withdrawn. /d. at B12-B16.° The court then noted

that, under the governing regulation, 20 C.F.R.

802.205A(e) (1987), “[f]ollowing final action by

the administrative law judge or deputy commissioner

{dismissing or granting the motion for reconsidera-

tion], a new notice of appeal shall be filed with the

Clerk of the Board by any party who wishes to ap-

peal.” Pet. Apnp. B16-B17 (brackets in original).

Here, the court continued, petitioners “failed to file

a new notice of appeal after the ALJ ruled on the

5 The court of appeals thus expressly disagreed with the

Board’s alternative ground for dismissing the claimants’ ap-

peal—that a perfected motion for reconsideration that is later

withdrawn fails to toll the period for filing a notice of appeal.

Pet. App. B14.

6

motion to withdraw the motion for reconsideration.”

Id. at B18. Since the court found no distinction in

this context between a motion that has been with-

drawn and a motion that has been disposed of on the

merits, id. at B17, it held that the “Board deviated

from [that] regulation[] when it found [petition-

ers’] notice of appeal timely,” id. at B20-B21. Ac-

cordingly, the court vacated the Board’s decision and

dismissed the case. Jd. at B21.

ARGUMENT

1. Petitioners contend (Pet. 14-23) that the court

of appeals misconstrued the Board’s regulations in

holding that their failure to file a notice of appeal,

after the ALJ had granted the claimants’ request to

withdraw their reconsideration motion, precluded

review of the ALJ’s compensation decision. Under

those regulations, which implement the statutory

30-day deadline for review of compensation orders

(see 33 U.S.C. 921(a)), “[a] timely motion for

reconsideration of a decision or order of an admin-

istrative law judge * * * shall suspend the running

of the time for filing a notice of appeal.” 20 C.F.R.

802.205A(a) (1987). Those regulations further pro-

vide that “[i]f a timely motion for reconsideration

* * * is filed, any appeal to the Board, whether filed

prior to or subsequent to the filing of the timely mo-

tion for reconsideration, shall be dismissed as prema-

ture.” 20 C.F.R. 802.205A(e) (1987). And the reg-

ulations expressly state that “[f]ollowing final action

by the administrative law judge * * * [on a timely

motion for reconsideration], a new notice of appeal

shall be filed * * * by any party who wishes to ap-

peal.” Ibid.

7

As the Board explained over a decade ago, that

procedural scheme “provides that a timely motion to

reconsider renders an appeal premature and subject

to dismissal. * * * [The] appeal time will begin anew

upon action by the administrative law judge on a re-

quest for reconsideration and the filing of a new

notice of appeal.” 43 Fed. Reg. 42,144 (1978). In

other words, like a premature motion to alter or

amend a judgment under Fed. R. Civ. P. 59, a pre-

viously filed notice of appeal to the Board, in these

circumstances, “simply self destructs.” Griggs v.

Provident Consumer Discount Co., 459 U.S. 56, 61

(1982) (per curiam) (internal quotation marks

omitted).

Here, petitioners filed their Board-construed “no-

tice of appeal” two days before the claimants filed

their motion for reconsideration before the ALJ. Un-

der the express terms of 20 C.F.R. 805.205A(e)

(1987), this attempt to invoke the Board’s jurisdic-

tion must fail since the regulation provides that “[i]f

a timely motion for reconsideration * * * is filed, any

appeal to the Board, whether filed prior to or sub-

sequent to the filing of the timely motion for recon-

sideration, shall be dismissed as premature.” 20

C.F.R. 802.205A(e) (1987) (emphasis added). In

these circumstances, the regulation obligated the

Board to dismiss the appeal—an oversight properly

corrected by the court of appeals—where, as here,

petitioners did not file a new notice of appeal “[f]ol-

lowing final action by the administrative law judge.”

Ibid. See Jones vy. Illinois Cent. Gulf R.R., 846 F.2d

1099, 1102 (7th Cir. 1988); ef. ICC v. Brotherhood

of Locomotive Engineers, 482 U.S. 270, 284-285

(1987).°

6 Petitioners contend that they were not required to file a

new notice of appeal because the ALJ’s final decision—grant-

8

2. Petitioners also contend (Pet. 14, 24-26) that

the court of appeals erred in failing to defer to the

Board’s construction of its regulations. But that con-

tention rests on a false premise since the court of

appeals found that the Board did not even identify

“the grounds on which the Board found [| petitioners’ ]

notice of appeal to be timely.’”’ Pet. App. B9-B10.

In any event, the court “recognize|d] that the rules

and regulations of the Board deserve special defer-

ence,” id, at B18 (citing Jones vy. Illinois Cent. Gulf

R.R., supra), but also correctly concluded that such

deference would not be appropriate where the Board

“deviate[d] from its own regulations,” Pet. App.

B18; ef. Potomac Electric Power Co. vy. Director,

OWCP, 449 U.S. 268, 278 n.18 (1980). As explained

above, the Board’s implicit conclusion that petitioners

had filed a timely notice of appeal cannot be squared

with the plain terms of 20 C.F.R. 802.205A(e)

(1987).’ Accordingly, the court of appeals properly

ing the claimants’ request to withdraw the reconsideration

motion—does not fall within the terms of 20 C.F.R. 802.205A

(c) and (d) (1987). To be sure, those provisions speak of an

ALJ’s decision either to grant or deny a motion for reconsid-

eration. But as the court of appeals correctly observed (Pet.

App. B17-B18), a decision to grant a party’s request to with-

draw a reconsideration motion is the functional equivalent of

the sort of final administrative action contemplated by Sec-

tion 802.205A(c) and (d).

* Petitioners also attempt (Pet. 22) to analogize the Board’s

treatment of the claimants’ withdrawal motion to a motion

for voluntary dismissal under Fed. R. Civ. P. 41(a). But

that analogy misses the mark. The question whether the run-

ning of a statute of limitations is suspended by the pendency

of a civil complaint that has been voluntarily dismissed is in

no way analogous to the question whether a notice of appeal

can be filed during the pendency of a motion for reconsidera-

tion that is later withdrawn. Underscoring the difference,

9

refused to defer to the Board’s unexplained exercise

of jurisdiction over petitioners’ challenge to the com-

pensation award. See Udall vy. Tallman, 380 U.S. 1,

4, 16-17 (1965).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT P. DAVIS

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

NATHANIEL I. SPILLER

Senior Appellate Attorney

ANNE PAYNE FUGETT

Attorney

Department of Labor

APRIL 1990

Rule 41(a) provides that, in certain circumstances, “‘an action

may be dismissed by the plaintiff without order of court.” Fed.

R. Civ. P. 41(a). By contrast, a claimant’s request to with-

draw a reconsideration motion pending before an ALJ is not

self-executing. To the contrary, since under the Board’s regu-

lations, the filing of a reconsideration motion effectively sus-

pends the finality of the ALJ’s decision, see 20 C.F.R.

802.205A(a) (1987), the ALJ is obliged to dispose of that

motion in order for the review process to proceed.

APPENDIX A

BENEFITS REVIEW BOARD

UNITED STATES DEPARTMENT OF LABOR

BRB Nos. 86-3048 and 86-3048A

Case No. 81-LHCA-2135

OWCP No. 7-71798

WALTER SAWYER, CLAIMANT-RESPONDENT,

CROSS-PETITIONER

Vv.

TIDELAND WELDING SERVICE AND

LIBERTY MUTUAL INSURANCE COMPANY,

EMPLOYER/CARRIER-PETITIONERS,

CROSS-RESPONDENTS

BRB Nos. 86-3049 and 86-3049A

Case No. 81-LHCA-2136

OWCP No. 7-72799

GLYNN RHODES, CLAIMANT-RESPONDENT,

CROSS-PETITIONER

Vv.

TIDELAND WELDING SERVICE AND

LIBERTY MUTUAL INSURANCE COMPANY,

EMPLOYER/CARRIER-PETITIONERS,

CROSS-RESPONDENTS

ORDER

[Filed Dec. 17, 1987]

(la)

2a

The Director has filed a motion, requesting recon-

sideration of the Board’s April 22, 1987 Order, which

dismissed claimant’s consolidated appeals, 86-3048A

and 86-3049A, in the captioned case. Employer/Car-

rier have objected to the Director’s motion. The

Board notes employer/carrier’s objections.

Upon careful consideration, the Board hereby de-

nies the Director’s motion for reconsideration.

In addition, employer, carrier have filed a supple-

mental brief in support of their appeals in BRB Nos.

86-3048 and 86-3049. 20 C.F.R. § 802.214. The

Board accepts the supplemental brief as part of the

record. Responses to the supplemental brief may be

filed within twenty (20) days from receipt of this

Order. 20 C.F.R. § 802.214.

Finally, the Board acknowledges receipt of claim-

ant’s response brief. 20 C.F.R. § 802.211.

/s’ Robert L. Ramsey

‘ROBERT L. RAMSEY, Chief

Administrative Appeals Judge

s’/ Roy P. Smith

Roy P. SMITH

Administrative Appeals Judge

s’ James F. Brown

JAMES F. BROWN

Administrative Appeals Judge

an

Nancy S. Dolder

Nancy S. DOLDER

Administrative Appeals Judge

ez)

Regina C. McGranery

REGINA C. MCGRANERY

Administrative Appeals Judge

Dated this 17th day of December 1987

3a

APPENDIX B

BENEFITS REVIEW BOARD

UNITED STATES DEPARTMENT OF LABOR

BRB No. 86-3048

WALTER SAWYER, CLAIMANT-RESPONDENT

Vv.

TIDELAND WELDING SERVICE AND

LIBERTY MUTUAL INSURANCE COMPANY,

EMPLOYER / CARRIER-PETITIONER

BRB No. 86-3049

GLYNN RilODES, CLAIMANT-RESPONDENT

Vv.

TIDELAND WELDING SERVICE AND

LIBERTY MUTUAL INSURANCE COMPANY,

EMPLOYER’ CARRIER-PETITIONER

DECISION AND ORDER

[Filed Mar. 31, 1988]

APPEALS OF THE DECISIONS AND ORDERS

ON REMAND-AWARDS OF BENEFITS OF

BEN H. WALLEY, ADMINISTRATIVE LAW

JUDGE, UNITED STATES DEPARTMENT

OF LABOR

4a

Before: RAMSEY, Chief Administrative Appeals

Judge, SMITH, Administrative Appeals

Judge, and TAIT, Administrative Appeals

Judge. *

PER CURIAM:

Employer appeals the Decisions and Orders on Re-

mand (81-LHCA-2135, 2136) of Administrative Law

Judge Ben H. Walley awarding benefits pursuant to

the provisions of the Longshore and Harbor Workers’

Compensation Act, as amended 33 U.S.C. § 901 et seq.

(the Act). Prior to the initial hearing in this case,

the claims were consolidated, as both claims arose

from the same incident and involved substantially

the same issues. We must affirm the findings of fact

and conclusions of law of the administrative law judge

which are supported by substantial evidence, are ra-

tional, and are in accordance with law. 33 U.S.C.

§ 921(b) (3); O'Keeffe v. Smith, Hinchman, & Grylls

Associate, Inc., 380 U.S. 359 (1965).

On June 21, 1980, claimants sustained injuries in

an automobile accident while working for employer as

welders. Employer runs a ship and maritime repair

fabricating facility located south of highway 90 on

both the east and west banks of Bayou Boeuf, Louisi-

ana. Claimants sustained their injuries on the eastern

end of the Route 90 Bayou Boeuf overpass, approxi-

mately one and one quarter miles from employer’s

west bank facility and 220 feet from Route 622, the

* Sitting as a temporary Board member by designation

pursuant to the Longshore and Harbor Workers’ Compensa-

tion Act as amended in 1984, 33 U.S.C. §921(b) (5) (West

1986).

5a

entrance road to employer’s east bank facility. Claim-

ants were on their way home from the west bank

facility at the time of their accident.

In his first Decision and Order, the administrative

law judge concluded that claimants were not entitled

to benefits as they were not injured within the scope

of their employment, see Foster v. Massey, 407 F.2d

343 (D.C. Cir, 1968), and were not injured on a cov-

ered situs. See 33 U.S.C. § 903(a). Claimants ap-

pealed the findings of the administrative law judge to

the Board. In its Decision and Order, the Board re-

versed the administrative law judge’s Decision and

Order and found that since claimants received $25 per

week from employer specifically for travel expenses,

the claimants were injured within the scope and

course of their employment pursuant to the “trip pay-

ment exception” to the “coming and going rule.” See

Sawyer v. Tideland Welding Service, 16 BRBS 344,

346 (1984). The Board further found that claimants

were injured on a covered situs, and the case was

remanded to the administrative law judge for consid-

eration of the remaining issues. Jd.

On remand, the administrative law judge found

that claimant Sawyer was entitled to temporary total

disability benefits and claimant Rhodes was entitled

to temporary total and permanent partial disability

benefits as a result of the injuries they sustained in

the accident. The administrative law judge awarded

both claimants continuing compensation for their re-

spective disabilities, as well as a substantial amount

of back benefits totalling approximately $100,000 for

Sawyer and approximately $30,000 for Rhodes. On

December 3, 1986, employer filed a motion to stay the

payments and a notice of appeal of the administrative

law judge’s decisions with both the Benefits Review

Board and the United States Court of Appeals for the

6a

Fifth Circuit. The motion for a stay of payments was

subsequently denied by Board Order dated December

8, 1986, for failure to establish irreparable injury.

See 33 U.S.C. $ 921(b). The Fifth Circuit which ini-

tially granted a stay, subsequently dissolved it for

lack of jurisdiction as an appeal was pending before

the Board.' See Tideland Welding Service v. Director,

OWCP, 817 F.2d 1211, 20 BRBS 9 (CRT) (5th Cir.

1987).

On appeal, employer contends that claimants were

not injured in the scope or course of their employment

and that they were not injured on a covered situs.

Employer further contends that it is entitled, under

the Constitution, to have an Article III court review

the Board’s Order prior to paying claimants the com-

pensation awarded by the administrative law judge.

In support of this contention, employer argues that

Section 21(b) (3) of the Act, 33 U.S.C. $ 921(b) (3),

requires it to turn over property prior to a review by

an Article III court in violation of the due process and

equal protection clauses of the Constitution. Finally,

employer contends that requiring it to pay a lump

sum amount to claimants without a bond or other

cuarantee of its return if employer is successful on

appeal, constitutes irreparable harm to employer.

Claimants respond that the administrative law

judge’s Decision and Order should be affirmed.”

1 Claimants filed a consolidated cross-appeal (BRB Nos.

86-3048A and 86-3049A) with the Board which was dismissed

as untimely by Order dated April 22, 1987.

2 We decline to address claimants’ contentions raised in their

response brief that the administrative law judge’s erred in

denying penalties pursuant to Sections 14(e) and (f), 33

U.S.C. §914(e), (f), as they were not raised in a timely

cross-appeal. See Del Vacchio v. Sun Shipbuilding & Dry

7a

When a case is before the Board for a second time,

and the same issues are raised in the second appeal,

the Board generally holds that its prior decision is

the “law of the case,” and refuses to re-examine the

issue. See Dixon v. John J. McMullen and Associates

Inc., 19 BRBS 243 (1987). In the instant case, the

Board in its first decision found that claimants were

injured in the course of their employment and on a

covered situs. These findings constitute the law of

the case, and we therefore decline to address employ-

er’s contentions concerning these issues which were

resolved in the Board’s first Decision and Order.

Regarding employer’s contention that it has suf-

fered a violation of its constitutional rights, in Section

21(b) (3) of the Act, 33 U.S.C. $ 921(b) (3), Con-

gress authorized the Benefits Review Board to hear

and determine appeals that raise substantial questions

of law and fact from decisions on claims by employees

covered under the Act and its extensions. The Board

was created to perform the functions formerly per-

formed by the United States District Courts, see Naci-

rema Operating Co., Ine. v. Benefits Review Board,

538 F.2d 73 (3d Cir. 1976), and the United States

Courts of Appeal are the only judicial bodies granted

direct review authority over final Board decisions.

See 33 U.S.C. § 921(b) (3), (ce). The Board has held

that hearing before an administrative law judge pro-

vides employer with a full hearing in satisfaction of

its right to due process of law, and concluded that

requiring an employer to pay benefits while an appeal

is pending does not constitute irreparable harm and

does not deprive employer of due process. Smith v.

Dock Co., 16 BRBS 190 (1984). For the same reason we will

not address claimant Rhodes’ contention that his average

weekly wage was incorrectly calculated.

8a

Aerojet Shipyards, 16 BRBS 49 (1983). Moreover,

although it is clear that adjudication of workers’ com-

pensation claims under the Act involves “private

rights,” it is equally clear that Article III of the

Constitution does not require Article II judges to per-

form every stage of adjudication where “private

rights” are at stake. Kalaris v. Donovan, 697 F.2d

376, 386 (D.C. Cir.), cert. denied, 462 U.S. 1119,

reh’g denied, 463 U.S. 1263 (1983). Employer’s con-

tentions are therefore without merit, and are rejected.

Lastly, we decline at this stage to reevaluate case

precedent holding that the alleged financial irrespon-

sibility of the benefits recipients alone is sufficient to

constitute irreparable harm. See Associated Indem-

nity Corp. v. Shea, 325 F. Supp. 1100 (S.D. Ala.

1971), aff'd on other grounds, 455 F.2d 913 (5th Cir.

1972); Holland America Insurance Co. v. Rogers,

308 F. Supp. 1031 (N.D. Cal. 1970).

Accordingly, the administrative law judge’s Deci-

sions and Orders on Remand-Awards of Benefits are

affirmed.

SO ORDERED.

s/ Robert L. Ramsey

ROBERT L. RAMSEY, Chief

Administrative Appeals Judge

‘s/ Roy P. Smith

Roy P. SMITH

Administrative Appeals Judge

s’ Reid C. Tait

REID C. TAIT

Administrative Appeals Judge

Dated this 31st day of March 1988

Vou. S. GOVERNMENT PRINTING OFFICE. 1990 262203 634