# Opposition Brief — Tideland Welding Service v. Sawyer > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0780%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 495 U.S. 904 ## Text 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 ce awn asisks haticnsiceknne wien old oaneeeonbneties 1 El A ee cee a Ee 1 aE OER 2 SE ty a RT 6 5 ES De POO Pa ee ee 9 ie cad eucesneieaevandnaesiseetac la a 2 sass ades pase ncccnaneadganedcbovensarevte 3a 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0780%3A3. Public record. Not legal advice.