# Petition for Writ of Certiorari — Holmes v. Director, Office of Workers' Compensation Programs

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 904

## Text

(") SUPTEME Lown ty S
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No. °

OSTZES TM © 2004
Cin o) he
Supreme Court of the United States

+

ROBERT HOLMES,

Petitioner,
4 Vv.

DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR;
VIRGINIA INTERNATIONAL TERMINALS,

Respondents.

4

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

.
PETITION FOR WRIT OF CERTIORARI

.

Avery T. Waterman, Jr.

Counsel of Record

Jennifer West Vincent

PATTEN, WORNOM, HATTEN
& DIAMONSTEIN, L.C.

NationsBank Building

12350 Jefferson Avenue, Suite 360

Newport News, Virginia 23602

(757) 223-4500

Counsel for Petitioner

THE LEX GROUP ¢ 1108 East Main Street Suite 1400 # Richmond, Virginia 23219
(804) 644-4419 @ (800) 856-4419 @ Fax: (804) 644-3660 ¢ www.thelexgroup.com

QUESTIONS PRESENTED FOR REVIEW

I

Is a Benefits Review Board’s unanimous
Decision and Order on the merits in favor of Petitioner
following its.adverse affirmance by operation of law
under an “appropriations measure” void for lack of
jurisdiction, or is it a de facto reconsideration and
modification under pre-existing substantive law and
regulations that altered the limitation periods flowing
therefrom?

II

Were Petitioner’s Motion for Reconsideration
and Petition for Review filed timely?

il

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ..ceccccccccccccseee
TABLE OF AUTHORITIES .......ssssssssssssssssssssssssesssssessee iii
OPINIONS BELOW on.cccccccsccssccssssssssssssssssssssssssssssessessseees 1
STATEMENT OF JURISDICTION .....ssscsssssssssssssssssssssee 1
STATUTES AND REGULATIONS INVOLVED..........2
STATEMENT OF THE CASE ....sssssssssssssssssssssssssse ce
PNT ooo sicesncnssssnasusoncccosessocassorsonnosnsessssnenseeveseeneees 5

The Fourth Circuit has entered a decision
in conflict with the Ninth Circuit on the
same important matter......... Vetennnbinletiatinnncts 6

The Fourth Circuit has decided an
important federal question in a way that
conflicts with relevant decisions of this
NT a sasibenssumsounnbauiieaens 9

The Fourth Circuit has decided an
important federal question that has not

been, but should be, settled by this Court...... 11
2 oF. & | PERS SORE ON OC oe 12
a sdnsnbiseduvabavennunssamens ia

ili

TABLE OF AUTHORITIES
Page(s)

CASES
Betty B. Coal v. DOWCP,

194 F.3d 491 (4 Cir. 1999).........cccccscecssseseseresees 10
Bowman v. Loperena,

SET US, 26Z (19GD) «...csersnccesseosssnsssessossesncennegcsssnse 10
Burton v. Stevedoring Servs., Inc.,

196 F.3d_1070 (9% Cir. 1999).........sccccscsesesrsessoreees 9
DOWCP v. Hileman,

897 F.2d 1277 (4 Cir. 1990),........ccscscsrsrssssessees 11
DOWCP 2v. Sun Ship, Inc.,

150 F.3d 288 (34 Cir, 1998)......c.c..ccccecscsssssssssererees 9
ICC v. Brotherhood of Locomotive Eng’rs,

4BZ US. 270 (I9G). onvascasnnecensvosssrisonerarenness sessssess 10
Matulic v. DOWCP,

154 F.3d 1052 (Ot Cir. 1998)..........cscsssssssssseseeeees 5
Ramey v. Stevedoring Servs. of Amer.,

134 F.3d 954 (9% Cir, 1998)...........ccscesesssees passim

Tennessee Valley Authority v. Hill,
ESF UES. TD ID vevesescosicsvesnsssensonsieasvisicnniaiian 9,10

iv
STATUTES AND RULES
I cecal serealiaeneaeaien ao
I i passim
Fis SERN bnvsicvsicisinincrionrsteectedcitsionicmninemmnatnenniontete 1

Longshore and Harbor Workers’ Compensation Act,
Pe as i OE OI: cncccernsnssarnseanicinesiesienial passim

Omnibus Consolidated Appropriations Act, 2001,
Pub. L. No. 106-554, §1(a)(1),
114 Stat. 2763, 2763A-10 (2000) .......... passim

FEI a NTN eR

Petitioner, Robert Holmes, respectfully prays
that a writ of certiorari issue to review the opinion of
the United States Court of Appeals for the Fourth
Circuit issued on June 12, 2003.

OPINIONS BELOW

On February 3, 2000, the Administrative Law
Judge (“ALJ”) entered Decision and Order Denying
Benefits to Claimant. 37a. On March 16, 2001, the
Benefits Review Board (“BRB”) entered unpublished
Decision and Order, vacating and remanding the AL]’s
Decision and Order. 20a. On April 4, 2001, the BRB
entered unpublished Order, vacating its 3/16/01
Deeision and Order. 16a. On May 7, 2001, the BRB
entered unpublished Order, denying Motion for
Reconsideration of Holmes. 11a. On June 12, 2003, the
Fourth Circuit Court of Appeals entered unpublished
per curiam Opinion, dismissing the Petition for Review
of Holmes. 1a. On December 9, 2003, the Fourth Circuit
entered Order, denying Petition for Panel Rehearing
and Petition for Rehearing En Banc. 53a.

STATEMENT OF JURISDICTION

The judgment and opinion of the United States
Court of Appeals for the Fourth Circuit, entered June
12, 2003, dismisses the Petition for Review. Petitioner
timely filed for rehearing by panel and en banc, which
_ was denied on December 9, 2003. This petition for
certiorar’ was filed within 90 days. This Court’s
jurisdiction is invoked under 28 U.S.C. §1254(1).

STATUTES AND REGULATIONS INVOLVED

20 C.F.R. §802.406 provides, in pertinent part:

A decision rendered by the Board pursuant to
this subpart shall become final 60 days after the
issuance of such decision unless a written petition for
Review praying that the order be modified or set aside,
pursuant to section 21(c) of the LHWCA, is filed in the
appropriate U.S. court of appeals prior to the
expiration of the 60-day period herein described, or
unless a timely request for reconsideration by the
Board has been filed as provided in Sec. 802.407. If a
timely request for reconsideration has been filed, the
60-day period for filing such petition for review will
run from the issuance of the Board’s decision on
reconsideration.

20 C.F.R. §802.407 provides, in pertinent part:

a) Any party-in-interest may, within 30 days
from the filing of a decision or non-interlocutory order
by a panel or the Board pursuant to Section 802.403(b),
request reconsideration of such decision by those
members who rendered the decision. The panel of
members who heard and decided the appeal will rule
on the motion for reconsideration. If any member of the
original panel is unavailable, the Chairman shall
designate a new panel member.

(bo) *™

(c) Except as provided in Sec. 801.301(d),
even where no party has suggested reconsideration en
banc, any permanent member may petition the
permanent Board for reconsideration en banc of a panel
decision.

(d) Reconsideration en banc shall be granted
upon the affirmative vote of the majority of permanent
members of the Board. A panel decision shall stand
unless vacated or modified by the concurring vote of at
least three permanent members.

Omnibus Consolidated Appropriations Act,
2001, Pub. L. No. 106-554, §1(a) (1), 114 Stat. 2763,
2763A-10 (2000) provides, in pertinent part:

That any such decision pending a review
by the Benefits Review Board for more
than 1 year shall be considered affirmed
by the Benefits Review Board on the 1-
year anniversary of the filing of the
appeal, and shall be considered the final
order of the Board for purposes of
obtaining a review in the United States
courts of appeals....

STATEMENT OF THE CASE ~

Holmes claimed against his employer under the
Longshore and Harbor Workers Compensation Act, 33
US.C. §901, et seq. (“LHWCA”). The ALJ held his claim
uncompensable and he appealed to the BRB.

seaeeeeenneeinnianitiiaiiii

Because the ALJ’s decision was pending review
by the BRB for more than one year, it automatically
was “considered affirmed” on March 7, 2001, by
operation of an “appropriations measure,” the
Omnibus Consolidated Appropriations Act, 2001, Pub.
L. No. 106-554, §1(a)(1), 114 Stat. 2763, 2753A-10 (2000)
(“Public Law 106-554”). However, on March 16, 2001,
sua sponte, three members of the BRB issued a
unanimous Decision and Order on the merits, vacating
the ALJ’s decision and remanding. Although not so
styled, that BRB Decision and Order necessarily
constituted a de facto reconsideration and modification
of its then-existing affirmance by law, as permitted by
20 C.F.R. §802.407.

On April 4, 2001, sua sponte, the BRB vacated its
3/16/01 Decision and Order, erroneously believing it
lacked authority to issue the same. 17a. Accordingly, as
provided by §802.407, Holmes timely moved for
reconsideration of the 4/4/01 Order of vacation on
April 9, 2001. On May 7, 2001, the BRB denied his
Motion, erroneously believing that it was “without
authority to review the administrative law judge's
findings of fact and conclusions of law [‘affirmed by
operation of law] by way of a motion for
reconsideration.” 13a.

On June 8, 2001, Holmes timely petitioned the
Fourth Circuit to review the BRB’s 5/7/01 Order,
which upheld its 4/4/01 Order vacating its unanimous
3/16/01 Decision and Order in his favor on the merits.
Sua sponte, the Fourth Circuit raised the timeliness of
Holmes’ Motion for Reconsideration and, in turn, of his
Petition for Review. On appellate review, Respondent,

Director of the. Office of Workers’ Compensation
Programs (“Director”), did not advance any
interpretation about timeliness by brief or oral
argument.

The Fourth Circuit erroneously held both the
Motion and the Petition untimely, based on its
incorrect treatment of the BRB’s unanimous 3/16/01
Decision and Order on the merits. It held erroneously
that the affirmance by operation of Public Law 106-554
rendered the BRB subsequently addressing and
deciding the merits “void.” Compounding the error,
the Fourth Circuit found that the time limitation for
petitioning for review ran from the BRB’s affirmance
by law (rather than from its subsequent decision on the
merits) and, correspondingly, that Holmes’ 4/9/01
Motion for Reconsideration and the BRB’s 5/7/01
Order of denial did not toll the same, as provided in 20
C.F.R. §802.406.

ARGUMENT

The pertinent law and regulations as interpreted
by the BRB and Fourth Circuit must be scrutinized
through the lens of the LWHCA’s “beneficent purposes
and humanitarian nature.” There is a “mandate to
construe broadly its provisions so as to favor claimants
in the resolution of benefits cases.” Matulic v, DOWCP,
154 F.3d 1052, 1057 (9th Cir. 1998).

THE FOURTH CIRCUIT HAS ENTERED A
DECISION IN CONFLICT WITH THE NINTH
CIRCUIT ON THE SAME IMPORTANT MATTER.

In Ramey v. Stevedoring Servs. Of Amer., 134 F.3d
954 (9th Cir. 1998), adverse ALJ decisions were affirmed
by operation of law against two LHWCA claimants.!
Both moved for reconsideration by the BRB and, upon
denial, petitioned for review by the circuit court.
Significantly, as in the matter sub judice, their Petitions
for review were filed within 60 days of denial of
reconsideration, but beyond 60 days from affirmance
by law. 134 F.3d at 957.

Similar to the matter sub judice, the employers in
Ramey argued that “Public Law [106-554] divested the
Board of jurisdiction so that claimants’ motions for
reconsideration were of no effect and did not toll the
time for filing;” and that the circuit court did “not have
jurisdiction” because the petitions for review were filed
more than 60 days after the BRB affirmances by
operation of law. 134 F.3d at 958. The Ninth Circuit
Court of Appeals in Ramey gave “considerable weight”
to the interpretation of the Director that there was a
“lack [of] jurisdiction to consider the merits of these
cases.” Id. But it nonetheless rejected that there was no
jurisdiction due to the Public Law and found that the
motion for reconsideration “tolled the sixty day period
for filing petitions for review,” noting that “[w]hatever
deference we owe the Director's interpretation ‘stops
short of contravening plain statutory language’.” Id. At
959.

1 Ramey construed the original predecessor statute to Public
Law 106-554. 9a.

7

The Ninth Circuit in Ramey explained that the
-“LHWCA provides a mechanism for the [BRB] to
reconsider a panel decision;” that the BRB’s regulations
plainly detail the same; and that “nothing in [Public
Law 106-554] indicates it was intended to rewrite this
aspect of the regulatory structure.” Id. at 158.

Congress provided in Public Law [106-
554] that when the Board fails to issue a
decision within a year, the parties have
the opportunity to pursue review in the
courts of appeal instead of facing furthe1
months or years of delay. Nothing in
Public Law [106-554], however, purports
to deprive parties of other options,
including motions for reconsideration.
We decline to read an appropriations act
so broadly that we deprive the parties of
established rights.

Id. Although the BRB reconsideration after affirmance
by operation of law upheld in Ramey was requested by
a party, while in the matter sub judice it was sua sponte,
both modes of reconsideration are provided by the
same LHWCA regulatory framework. 20 C.F.R.
§802.407.

The Fourth Circuit’s opinion in the matter sub
judice conflicts with Ramey. Contrary to the Ninth
Circuit, the Fourth Circuit erroneously held that “the
plain language of Public Law 106-554” rendered the
BRB addressing and deciding the merits after its
affirmance by operation of law “void” for lack of

jurisdiction.2 8a. Furthering the inconsistency, the
Fourth Circuit also found erroneously that the 60-day
period for petitioning for review ran from the

2 Significantly, in holding the BRB’s unanimous 3/16/01
Decision and Order on the merits “void,” the Fourth Circuit
placed undue emphasis on the affirmance by operation of law
being a “final order.” 8a (emphasis in original). The word “final”
does not mean “unalterable” in this context, any more than it does
in the context of decisions on the merits. It merely means that
affirmances by operation of law, like affirmances (and reversals)
by a merits decisions, are “final” orders for purposes of
reconsideration and/or petition for review. Ramey, 134 F.3d at 958-
959. Just as there is no real dispute that “final” orders by merits
decisions still are subject to reconsideration by party motion or sua
sponte, there can be no genuine dispute that “final” orders by
operation of law are subject to reconsideration, under the same
LHWCA regulatory framework of 20 C.F.R. 802.407.

Similarly, in rejecting the 3/16/01 Decision and Order as a
de facto reconsideration, the Fourth Circuit placed undue weight
on the BRB being “unaware that it had affirmed the ALJ’s decision
by operation of law on March 7, 2001.” 8a (emphasis added).
“Ignorance of the law” is no more an excuse for the BRB than it is
for Holmes: the BRB properly is charged (by law) with knowing
contemporaneously its affirmance by law. Moreover, the BRB
ostensibly being “unaware” of its prior affirmance by operation of
law is exactly what renders the BRB’s subsequent reversal on the
merits a de facto reconsideration (despite it not being so denoted).
That is to say, given that there already had been an initial BRB
decision by operation of law, the BRB’s subsequent decision to the
contrary on the merits necessarily amounted to a reconsideration
in fact of the earlier decision. The fact that on its face the BRB’s
3/16/01 Decision and Order overlooked the automatic affirmance
simply does not change that after its decision by operation of law
on March 7, 2001, the BRB considered again in fact what it already
had decided and, upon such de facto reconsideration, decided it
differently. It is irrelevant that the actual reconsideration was the
product of some oversight; the only material (and dispositive)
point is that there was, in fact, a further (new) consideration on the
merits and a decision thereon.

affirmance by operation of law; that the BRB’s
unanimous 3/17/01 Decision and Order on the merits
and its 4/4/01 Order of vacation were irrelevant; and
that Holmes’ 4/9/01 Motion for Reconsideration and
the BRB’s 5/7/01 Order of denial did not toll the
limitation period. 8a-9a. Contrary to the Ninth Circuit,
the Fourth Circuit concluded that your Petitioner was
untimely and that it lacked jurisdiction. 9a.

Although not cited by the Fourth Circuit,
another panel of the Ninth Circuit and the Third
Circuit Court of Appeals also have decided in conflict.
Burton v. Stevedoring Servs., Inc., 196 F.3d 1070 (9% Cir.
1999) and DOWCP v. Sun Ship, Inc., 150 F.3d 288 (3'4
Cir. 1998). Those earlier decisions stated that “the
Board’s decision is void if it did not comply with the
Appropriation Act.” 196 F.3d at 1074; 150 F.3d at 291.
Significantly, however, both opinions turn on disputes
over how to count the one-year period of the
“appropriations” law and simply do not address the
issue at bar whether the “appropriations measure”
repeals by implication the longstanding LHWCA
regulatory framework providing for reconsideration on
motion and sua sponte.

THE FOURTH CIRCUIT HAS DECIDED AN
IMPORTANT FEDERAL QUESTION IN A WAY
THAT CONFLICTS WITH RELEVANT DECISIONS
OF THIS COURT.

Thére is conflict with two lines of this Court's
federal authority. First, the Fourth Circuit's opinion
conflicts with Tennessee Valley Authority v. Hill, 437,
USS. 153 (1978). In Tennessee Valley, this Court strongly

a

| |

disfavored an “appropriations measure” repealing by
implication any pre-existing legal framework. 437 at
190-191. Indeed, the Ninth Circuit in Ramey cited
Tennessee Valley as authority for the public
(appropriations) law in question not divesting the BRB
of its jurisdiction and decision-making authority and,
concommitantly, Petitioners of established rights. 134
F.3d at 958-959. Contrarily, the Fourth Circuit in the
matter sub judice held that automatic affirmance by
operation of Public Law 106-554, an “appropriations
measure,” rendered subsequent action by the BRB
“void,” i.e., the BRB without the continuing jurisdiction
provided it by the LHWCA and its regulatory
framework. 8a.

Second, the Fourth Circuit’s opinion conflicts
with ICC v. Brotherhood of Locomotive Egn’rs, 482 U.S.
270 (1986) and Bowman v. Loperena, 311 U.S. 262 (1940),
both of which-held that a lower tribunal reopening,
reconsidering and deciding a matter on the merits -
even if “late” - triggered rights of further review on a
new (later) limitations timetable. Locomotive Egn’rs
pronounced, “When the Commission reopens a
proceeding for any reason and after reconsideration,
issues a new and final order setting forth the rights and
obligations of the parties, that order...is reviewable on
its merits.” 482 U.S. at 278 (emphasis added). Bowman
mandated that despite “considering the merits
[‘late’],...time for appeal runs from the date thereof.”
311 U.S. at 266. Indeed, other panels of the Fourth
Circuit itself have ruled similarly. E.g., Betty B. Coal v.
DOWCP, 194 F.3d 491 (4 Cir. 1999)(holding that the
“bright line” is “the agency’s ‘formal disposition’
controls”), cited by the Fourth Circuit in the matter sub

11

judice; and DOWCP v. Hileman, 897 F.2d 1277, 1279 (4%
Cir. 1990) (holding that the period for filing a Petition
for Review dates from the last board decision). But in
the matter sub judice, the Fourth Circuit simply ignores
the BRB having reopened, reconsidered and decided
this matter on the merits by its unanimous 3/17/01
Decision and Order, its 4/4/01 Order of vacation and
its 5/7/01 Order denying the Motion for
Reconsideration (and the new appellate deadline
necessarily triggered thereby), and deems the Petition
for Review untimely (based on the affirmance by
operation of “appropriations” law on March 7, 2001).

THE FOURTH CIRCUIT HAS DECIDED AN
IMPORTANT FEDERAL QUESTION THAT HAS
NOT BEEN, BUT SHOULD BE, SETTLED BY
THIS COURT.

Historically, there has been a backlog of cases
pending decision on the merits by the BRB. When the
predecessor of Public Law 106-554 first became
effective, “hundreds of pending appeals from
administrative law judges’ decisions were summarily
affirmed without Board review.” Ramey, 134 F.3d at
957. The matter sub judice shows that the BRB'’s chronic
backlog and affirmances by operation of
“appropriations” law continue.

Fortunately, the LHWCA and its regulatory
framework expressly provide for BRB reconsideration
on the merits, by party motion and sua sponte, and
certainly decisions on the merits are much preferred to
ones by operation of law. Agerieved claimants and
employers should not be divested of these valuable

PY
12

federal rights by “appropriations measure” and judicial
fiat. The important federal question of whether a BRB’s
unanimous Decision and Order on the merits in favor
of Petitioner following its adverse affirmance by
operation of “appropriations” law is void for lack of
jurisdiction, or is a de facto reconsideration and
modification under the LHWCA and its regulatory
framework that alters the limitations periods flowing ~
therefrom, should be settled by this Court now.

CONCLUSION

For the foregoing reasons, Petitioner prays that a
writ of certiorari issue to review the opinion of the
United States Court of Appeals for the Fourth Circuit
on June 12, 2003.

Respectfully submitted,
ROBERT HOLMES

Avery T. Waterman, Jr., Esq.

Counsel of Record

Jennifer West_Vincent, Esq.

Patten, Wornom, Hatten & Diamonstein, L.C.
12350 Jefferson Avenue, Suite 300

Newport News, VA 23602

(757)223-4555 TEL

(757)249-3242 FAX

Counsel for Petitioner

SRNR He aera ti

ia
TABLE OF CONTENTS
Appendix to Petition

Page

Opinion of Fourth Circuit Court of Appeals
entered Jume 12, 2003........cesereserseererenesesenenens la

Order of Benefits Review Board
entered May 7, 2001.........-sssssssssssseerennesessetenenees lla

Order of Benefits Review Board
entered April 4, 2001 ...........s:sssseseseereetessereseeee 16a

Decision and Order of Benefits Review Board
entered March 16, 2001 ..........:cssesseeseserreeeeeees 20a

Decision and Order of Administrative Law Judge
entered February 3, 2000..........:s:ssssssesesersessees 37a

Order of Fourth Circuit Court of Appeals
entered December 9, 2003.......:::sssceseereeeseees 53a

Petition for Panel Rehearing and
Petition for Rehearing En Banc of Claimant

Filed Jume 26, 2008 ........scscseceeesesserereesenensenesenenees 55a
Motion for Reconsideration of Claimant

filed April 9, 2001..........s:sssssesereeseeees isenpnileiei 66a
Oral Argument Transcript of

The Fourth Circuit Court of Appeals
dated April 1, 20038..........-sssscsssessseeeertsssessenseee 68a

ents

la

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 01-1761

ROBERT HOLMES,
Petitioner,

V.

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR;

VIRGINIA INTERNATIONAL TERMINALS,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(00-592)

Argued: April 1, 2003
Decided: June 12, 2003
[ENTERED: JUNE 12, 2003]

Before NIEMEYER, MOTZ, and GREGORY,
Circuit Judges.

Dismissed by unpublished per curiam opinion.

mm

2a

COUNSEL

ARGUED: Avery Tillinghast Waterman, Jr., PATTEN,
WORNOM, HATTEN & DIAMONSTEIN, LC.,
Newport News, Virginia, for Petitioner. Richard John
Barrett, VANDEVENTER BLACK, L.L.P., Norfolk,
Virginia, for Respondents. ON BRIEF: Jennifer West
Vincent, PATTEN, WORNOM, HATTEN &
DIAMONSTEIN, L.C., Newport News, Virginia, for
Petitioner.

Unpublished opinions are not binding precedent in this
‘circuit. See Local Rule 36(c).

OPINION

PER CURIAM:

Robert Holmes filed a claim against his
employer, Virginia International Terminals ("VIT"),
under the Longshore and Harbor Workers
Compensation Act (the "LHWCA"). Holmes claims that
VIT violated the LHWCA by failing to pay his
disability claims derived from an alleged work-related
psychological injury. An Administrative Law Judge
("ALJ") heard Holmes' claim and concluded that his
disability claims were not compensable under the
LHWCA. Holmes then appealed that decision to the
Benefits Review Board ("BRB"), which affirmed the
ALJ's decision pursuant to Public Law 106-554. After
the BRB denied his motion for reconsideration, Holmes
filed this petition for review. For the reasons that

ee lllFFeeeeeeeeeeee

3a

follow, we conclude that we lack jurisdiction to decide
the substantive merit of Holmes' claim and therefore
dismiss his petition for review.

I.

VIT employed Holmes as a "header," the leader

of a gang of three workers responsible for loading and

| unloading cargo. Bruce Sanders was Holmes
immediate supervisor. Holmes claims that Sanders
| started harassing him in 1996 by: (1) opposing Holmes
promotion to header; (2) refusing to grant Holmes'

: gang "desirable overtime assignments"; and (3) falsely
accusing Holmes' gang of damaging freight. Holmes
‘ reported Sanders’ behavior to Greg Kubu, Sanders’
immediate supervisor, but Kubu did not take any

action.

Holmes claims that, on Friday, February 6, 1998,
Sanders falsely accused him and his crew of not doing
any work that day. Later the same day, Sanders
accused Holmes of sleeping on the job. Despite
Holmes' protestations that he was not sleeping on the
job, Sanders reported him to Kubu. Kubu discussed the
Holmes matter with Kevin Howard, the union business
agent and president, who scheduled a meeting for the
following Monday, February 9, 1998, to discuss
Sanders' allegations with Holmes, Sanders, and
company management. Holmes testified that he then
became the "butt of jokes and harassment" from his co-
workers, who allegedly teased him about "sleeping on
the job."

4a

On Monday morning, Holmes learned that his
meeting with Howard and company management had
been rescheduled for later that evening because
Howard had work to do. At the end of the afternoon,
Holmes learned that the evening meeting was also
rescheduled. Holmes testified that after VIT cancelled
the evening meeting, he began to suffer anxiety
because he was concerned about why VIT was "stalling
and refusing to meet with him." (Appellant's Br. at 12).
Holmes' physician, Dr. Sutton, examined Holmes that
evening and diagnosed him with depression and
anxiety disorder, ordered him to stay home from work,
and referred him to a mental health specialist. Dr.
Leonard Holmes, a psychologist, and Dr. Lewis Taylor,
VIT's physician, both confirmed that Holmes was
suffering from job-related stress and depression. Both
Dr. Holmes and Dr. Taylor recommended that Holmes
not work in his current job setting. Holmes remained
out of work until September 28, 1998, at which time he
returned to VIT and accepted an offer of a lower
paying position at another job site.

More than a year and a half later, on August 4,
1999, Holmes finally met with company management
to discuss the February 6, 1998 incident. According to
Holmes, this meeting did not resolve any of the issues
surrounding Sanders' allegations. It was during this
meeting that Holmes learned that he was being
replaced as gang header. Shortly thereafter, he filed a
claim under the LHWCA, alleging that he had incurred
a work-related psychological injury, and that as a
result, VIT was required to pay temporary total

5a

disability from February 9, 1998, to September 28, 1998,
and permanent partial disability from September 29,
1998, to the present.

In August 1999, Administrate Law Judge
Richard Malamphy heard Holmes' claims. The ALJ
issued a decision on February 3, 2000, denying Holmes'
request for benefits. In his decision, the ALJ concluded
that Holmes was not entitled to benefits because VIT's
response to Sanders' "sleeping on the job accusation"
was a legitimate personnel action. The ALJ further
determined that "the temporal relationship between
Holmes' illness and the events of February 6 and 9,
1998[,] indicate that it was the legitimate personnel
action that resulted in Holmes' disability." Specifically,
the ALJ noted that "only after the events of February 9,
1998, which have already been established as a
legitimate personnel action, did Holmes seek any kind
of psychological treatment." Thus, the ALJ concluded
that Holmes was not entitled to benefits because his
injury "was wholly a result of a legitimate personnel
action."

On March 7, 2000, Holmes appealed the ALJ's
decision to the BRB. Because the BRB failed to issue a
decision by the one-year anniversary of Holmes' appeal
to the BRB, the ALJ's decision was deemed affirmed by
operation of law on March 7, 2001.1 However, on

i Public Law 106-554, § 1(a)(1)[Title 1] provides, in relevant
part, "[t]hat any such decision pending review by the Benefits
Review Board for more than 1 year shall be considered affirmed
by the Benefits Review Board on the 1-year anniversary of the
appeal, and shall be considered the final order of the Board for
purposes of obtaining a review in the United States courts of
appeals. ..."

6a

March 16, 2001, the BRB issued a decision reversing
and remanding the ALJ's decision.

On April 4, 2001, the BRB issued an order
withdrawing its March 16, 2001 decision. In the April
2001 order, the BRB noted that it had failed to issue an
opinion within the one-year time limitation imposed
by law, and thus, the ALJ's decision was deemed
affirmed by operation of law on March 7, 2001. Holmes
then filed a motion for reconsideration on April 9,
2001,2 which the BRB denied on May 7, 2001. The BRB
explained that "[iJnasmuch as the administrative law
judge's decision was affirmed by operation of law on
March 7, 2001, the Board is without authority to review
the [ALJ's] findings of fact and conclusions of law by
way of a motion for reconsideration." On June 8, 2001,
Holmes filed this petition for review.

II.

Before we can reach the merits of Holmes' claim,
this Court must first determine whether it has
jurisdiction to decide the issue presented. See Betty B
Coal Co. v. DOWCP, 194 F.3d 491, 495 (4th Cir. 1999)
("[W]e have a special obligation to satisfy ourselves,
before deciding anything substantive, that we do have
jurisdiction."). To this point, VIT argues that this Court
lacks

2 It was unclear from the record whether Holmes filed his
motion for reconsideration on April 6, 2001, or April 9, 2001.
However, at oral argument Holmes' counsel confirmed that the
motion for reconsideration was filed on April 9, 2001.

SiR ine aE tn Sats a TRAE UIE &

7a

jurisdiction because Holmes did not timely file his
petition with this Court. For the reasons that follow, we

agree.

20 CER. section 802.406 governs the time
period in which a petitioner may petition this Court for
a review of a BRB decision. Under § 802.406, "[a]
decision rendered by the Board pursuant to this
subpart shall become final 60 days after the issuance of
such a decision... ." A motion for reconsideration
timely filed, however, tolls the deadline for filing a
petition for review. Thus,"[iJf a timely request for
reconsideration has been filed, the 60-day period for
filing such petition for review will run from the
issuance of the Board's decision on reconsideration." 20
CER. § 802.406. Motions for reconsideration must be
filed with the BRB within 30 days from the filing of the
BRB's initial decision. See 20 C.F.R. § 802.407 ("Any
party-in-interest may, within 30 days from the filing of
a decision . . . request reconsideration of such decision
by those members who rendered the decision.").

In this case, the BRB affirmed the ALJ's decision
by operation of law on March 7, 2001, the one-year
anniversary of Holmes' appeal to the BRB. Public Law
106-554 requires:

[A]ny such decisions pending a review by
the Benefits Review Board for more than 1
year shall be considered affirmed by the
Benefits Review Board on the 1-year
anniversary of the filing of the appeal, and
shall be considered the final order of the
Board for purposes of obtaining a review in
the United States courts of appeal[] sic....

8a

LHWCA, Pub. L. No. 106-554, § 1(a)(1), 114 Stat. 2763,
2763A-10 (2000) (emphasis added). Applying the plain
language of Public Law 106-554 to the facts in this case
requires this Court to conclude that the BRB's March
16, 2001 written opinion is void because the BRB
affirmed the ALJ's decision by final order on March 7,
2001, the one-year anniversary of Holmes' appeal to the
BRB.? Thus, under § 802.406, March 7, 2001, is the date
from which the statute of limitation should begin to
run for any petition for review filed with this Court.

Holmes had 60 days from March 7, 2001, or until

May 6, 2001, to petition this Court for review of the
ALJ's decision. See 20 C.F.R. § 802.406. However,

- Holmes did not file his petition for review with this
Court until June 8, 2001. Thus, his petition for review
was not timely, and this Court does not have
jurisdiction to decide the substantive merit of his claim.

_ 3 Holmes argues that, pursuant to § 802.407, the BRB's
March 16, 2001 written decision on the merits of Holmes' appeal
may be considered a "de facto" or "sua sponte" reconsideration of
its affirmance of the ALJ's decision under Public Law 106-554. We
find this argument unpersuasive. At the time the BRB issued its
March 16, 2001 decision, it was unaware that it had affirmed the
ALJ's decision by operation of law on March 7, 2001. This is
evident not only from the BRB's April 4, 2001 order, vacating its
March 16 decision, but also from its May 7, 2001 order, which
denied Holmes' motion for reconsideration, believing that it was
"without authority to review the administrative law judge's
findings of fact and conclusions of law by way of a motion for
reconsideration." Regardless of whether § 802.407 would permit
the BRB to reconsider its own decision under these circumstances,
it is clear from the facts of this case that the BRB's March 16, 2001
opinion was not a reconsideration of the March 7, 2001 final order.

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9a

Holmes attempts to dissuade this Court from
finding his petition untimely by arguing that his April
9, 2001 motion for reconsideration tolled the time for
filing a petition for review with this Court. He
contends that under § 802.406, the time in which to file
an appeal with this Court should run from May 7, 2001,
the date the BRB denied his motion for reconsideration.
To bolster his argument, Holmes relies on the Ninth
Circuit's ruling in Ramey v. Stevedoring Services of
America, 134 F.3d 954 (9th Cir. 1998). In that decision,
the Ninth Circuit held that a petitioner may file a
motion for reconsideration of BRB decisions rendered
under Public Law 106-554. Id. at 959 (holding that
"{njothing in Public Law 104-1344 . . . purports to
deprive parties of . . . [filing] motions for
reconsideration").

In Ramey, however, the petitioners had filed
timely motions for reconsideration. Here, Holmes'
motion for reconsideration was filed on April 9, 2001,
more than 30 days after the BRB's March 7, 2001 final
order. Holmes' motion for reconsideration, therefore,
was untimely and did not toll the running of the
statute of limitation for filing his petition for review
with this Court.

. In Ramey, the Ninth Circuit interpreted a predecessor
statute to Public Law 106-554.

10a

ITI.

Because Holmes filed his petition for review
more than 60 days after the BRB's March 7, 2001
decision, this Court lacks jurisdiction to decide the
substantive merits of Holmes' petition. Accordingly,
the petition is hereby

DISMISSED.

lla

U.S. Department of Labor

Benefits Review Board
P.O. Box 37601
Washington, DC 20013-7601
BRB No. 00-0592
NOT PUBLISHED

ROBERT HOLMES,
Claimant-Petitioner,

Vv.

)

)

)

)

)
VIRGINIA INTERNATIONAL )
TERMINALS )
Self-Insured }
Employer-Respondent _)

DATE ISSUED: MAY 7 2001

[ENTERED: MAY 7, 2001]

ORDER

Claimant has filed a timely motion for
reconsideration of the Board’s April 4, 2001, Order. 33
U.S.C. § 921(b)(5); 20 C.F.R. § 802.407(a). In this Order,
the Board vacated its March 16, 2001, Decision and
Order due to the operation of Pub. L. No. 106-554, 114
Stat. 2763. This law provides that if the Board does not
issue a decision within one year of the date the appeal
was filed, the administrative law judge’s decision is
deemed affirmed on the one-year anniversary date of
the appeal’s having been filed for purposes of
obtaining review of the administrative law judge’s

12a

decision in the United States Court of Appeals. See 33
U.S.C. § 921(c). Claimant's notice of appeal was filed
on March 7, 2000. Therefore, as the Board’s decision
was not issued by March 6, 2001, due to a clerical error
in the Office of the Clerk of the Board, the
administrative law judge’s decision was affirmed by
operation of law on March 7, 2001.!

In his motion for reconsideration, claimant seeks
equitable relief from the provisions of Pub. L. No. 106-
554, based on the fact that the Board’s failure to issue
its decision in a timely manner was due to a clerical
error. Claimant seeks to have the Board review the
administrative law judge’s decision by way of his
motion for reconsideration, and, in essence, to “re-
issue” its decision as a decision and order on
reconsideration. Employer responds that the motion
for reconsideration should be denied, as there are no
exceptions to the law that the Board issue a decision
within one year of the date the appeal was filed.

We deny claimant’s motion for reconsideration.
The Board does not have equitable powers, and
moreover, Pub. L. No. 106-554 does not contain any
provisions allowing an extension in the time in which
the Board can review the administrative law judge's

Claimant's motion for reconsideration also is timely as to
the March 7, 2001 affirmance of the administrative law judge's
decision. See Ramey v. Stevedoring Services of America, 134 F.3d 954,
31 BRBS 206 (CRT) (9 Cir. 1998).

13a

decision.2 Inasmuch as the administrative law judge’s
decision was affirmed by operation of law on March 7,
2001, the Board is without authority to review the
administrative law judge’s findings of fact and
conclusions of law by way of a motion for
reconsideration.

Accordingly, claimant's motion for
reconsideration is denied. 20 C.E.R. § 802.409.

/s/ Betty Jean Hall
BETTY JEAN HALL, Chief
Administrative Appeals Judge

/s/Roy P. Smith
ROY P. SMITH
Administrative Appeals Judge

/s/ Regina C. McGranery
REGINA C. McGRANERY
Administrative Appeals Judge

2 The original legislation, Pub. L. No. 104-134, contained a
provision allowing a motion to maintain the appeal on the docket
for 60 days beyond the one-year anniversary date. Subsequent
legislation has not contained this provision. See Barker v. Bath Iron
Works Corp., 30 BRBS 198 (1996) (order).

14a

CERTIFICATE OF SERVICE

00-0592 Robert Holmes v. Virginia International
Terminals, Inc. (Case No. 99-LHCA-1344)
(OWCP No. 05-0103486)

I certify that the parties below were served this day.

MAY 7 2001 /s/ Thomas O. Shepherd, Jr.
(DATE) Thomas O. Shepherd, Jr.
Clerk of the Board

Gary R. West, Esq.
Patten, Wornom, Hatten
& Diamonstein, L.C.

12350 Jefferson Avenue

Suite 360

NEWPORT NEWS, VA 23602
- - Certified

Robert Holmes

2507 Orcutt Avenue

NEWPORT NEWS, VA 23607
- -Certified

R. John Barrett, Esq.

Vandeventer, Black, Meredith
& Martin, L.L.P.

101 West Main Street

Suite 500

NORFOLK, VA 23510
- -Certified

15a

Ms. Carol A. DeDeo, Esq.
Associate Solicitor
U.S. Department of Labor
200 Constitution Avenue, N.W.
Suite S-4325
WASHINGTON, DC 20210

- - Certified

Mr. B.E. Voultsides

District Director
OWCP-Longshore Division
200 Granby Mall

Room 212, Federal Building
NORFOLK, VA 23510

Judge Richard K. Malamphy

U.S. Department of Labor Office of
Administrative Law Judges

603 Pilot House Drive

Suite 300, Commerce Plaza
NEWPORT NEWS, VA 23606

U.S. Department of Labor

Office of Administrative Law Judges
111 Veterans Memorial Blvd.

Suite 530

METAIRIE, LA 70005

16a

U.S. Department of Labor

Benefits Review Board
P.O. Box 37601
Washington, DC 20013-7601
BRB No. 00-0592
NOT PUBLISHED

ROBERT HOLMES,
Claimant-Petitioner,

Vv.

)
)
)
)
)
VIRGINIA INTERNATIONAL )
TERMINALS i )
Self-Insured )
Employer-Respondent _)
DATE ISSUED: APR 4 2001
[ENTERED: APRIL 4, 2001]

ORDER

The Board issued a Decision and Order in the
captioned case on March 16, 2001. Pursuant to the
terms of Pub. L. No. 106-554, 114 Stat. 2763, the Board’s
decision should have been issued on or before March 6,
2001, inasmuch as claimant's notice of appeal was filed
with the Board on March 7, 2001,1 Due to a clerical

. Pub. L. No. 106-554, 114 Stat. 2763, states in relevant part
that “any decision pending a review by the Benefits Review Board
for more than 1 year shall be considered affirmed by the Benefits
Review Board on the 1-year anniversary of the filing of the appeal,
and shall be considered the final order of the Board for purposes
of obtaining a review in the United States courts of appeals.”

17a

error in the Office of the Clerk of the Board, the
decision was not issued in a timely manner.
Accordingly, we vacate the Board’s March 16, 2001,
Decision and Order. See Burton v. Stevedoring Services of
America, 196 F.3d 1070, 33 BRBS 175 (CRT) (9 Cir.
1999); Director, OWCP v. Sun Ship, Inc. [Ehrentraut], 150
F.3d 288, 32 BRBS 132 (CRT) (3d Cir. 1998). The
administrative law judge’s Decision and Order
Denying Benefits to the Claimant is deemed affirmed
as of March 7, 2001.2 See 33 U.S.C. § 921(c); 20 C.F.R. §
802.406.

/s/ Betty Jean Hall
BETTY JEAN HALL, Chief
Administrative Appeals Judge

/s/Roy P. Smith
ROY P. SMITH
Administrative Appeals Judge

/s/Malcolm D. Nelson
MALCOLM D. NELSON, Acting
Administrative Appeals Judge

: Thus, any party aggrieved by the administrative law
judge’s decision may appeal the decision within 60 days of this
date. 33 U.S.C. §921(c).

18a

CERTIFICATE OF SERVICE

00-0592 Robert Holmes v. Virginia International
Terminals, Inc. (Case No. 99-LHCA-1344)
(OWCP No. 05-0103486)

I certify that the parties below were served this day.

APR 4 2001 /s/Thomas O. Shepherd, Jr. P.M.
(DATE) Thomas O. Shepherd, Jr.
Clerk of the Board

Gary R. West, Esq.
Patten, Wornom, Hatten
& Diamonstein, L.C.

12350 Jefferson Avenue

Suite 360

NEWPORT NEWS, VA 23602
- - Certified

Robert Holmes

2507 Orcutt Avenue

NEWPORT NEWS, VA 23607
- -Certified

R. John Barrett, Esq.
Vandeventer, Black, Meredith
& Martin, L.L.P.
101 West Main Street
Suite 500
NORFOLK, VA 23510
- -Certified

19a

Ms. Carol A. DeDeo, Esq.
Associate Solicitor

U.S. Department of Labor

200 Constitution Avenue, N.W.
Suite S-4325

WASHINGTON, DC 20210

- - Certified
Mr. B.E. Voultsides
District Director
OWCP-Longshore Division
200 Granby Mall

Room 212, Federal Building
NORFOLK, VA 23510

Judge Richard K. Malamphy

U.S. Department of Labor Office of
Administrative Law Judges

603 Pilot House Drive

Suite 300, Commerce Plaza
NEWPORT NEWS, VA 23606

U.S. Department of Labor

Office of Administrative Law Judges
111 Veterans Memorial Blvd.

Suite 530

METAIRIE, LA 70005

20a

U.S. Department of Labor

Benefits Review Board
P.O. Box 37601
Washington, DC 20013-7601
BRB No. 00-0592
NOT PUBLISHED

ROBERT HOLMES,
Claimant-Petitioner,

V.

)

)

)

)

)
VIRGINIA INTERNATIONAL )
TERMINALS )

Self-Insured )

Employer-Respondent )
DATE ISSUED: MAR 16 2001
[ENTERED: MARCH 16, 2001]

DECISION and ORDER

Appeal of the Decision and Order Denying Benefits to
the Claimant of Richard K. Malamphy, Administrative
Law Judge, United States Department of Labor.

Gary R. West (Patten, Wornom, Hatten & Diamonstein,
L.C.), Newport News, Virginia, for claimant.

R. John Barrett and Kelly O. Stokes (Vandeventer
Black, L.L.P.), Norfolk, Virginia, for self-insured
employer.

21a

Before: HALL, Chief Administrative Appeals Judge,
SMITH, Administrative Appeals Judge, and NELSON,
Acting Administrative Appeals Judge.

PER CURIAM:

Claimant appeals the Decision and Order
Denying Benefits to the Claimant (99-LHC-1344) of
Administrative Law Judge Richard K. Malamphy
rendered on a claim filed pursuant to the provisions of
the Longshore and Harbor Workers’ Compensation
Act, as amended, 33 U.S.C. §901 et seq. (the Act). We
must affirm the findings of fact and conclusions of law
of the administrative law judge if they are rational,
supported by substantial evidence, and in accordance
with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith,
Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Claimant worked for employer as a header, the
leader of a gang of three workers, and filed a claim
under the Act for compensation for a psychiatric injury
allegedly resulting from work-related stress. Claimant,
who commenced his employment with employer in
1978, stated that his work environment first became
stressful in the 1990’s, with the arrival of new
managers and supervisors who found problems with
his work performance. Claimant testified that his
interactions with his immediate supervisor, pier
foreman Bruce Sanders, were particularly stressful;
specifically, claimant averred that Mr. Sanders opposed
his promotion to header in 1996, refused claimant's
gang desirable overtime assignments, sabotaged
claimant’s work, and falsely accused his gang of
damaging freight. On several occasions, claimant

F

22a

reported harassment by Mr. Sanders to Mr. Sanders’s
supervisor Greg Kubu, but no action was taken.
Claimant’s problems with management, and with Mr.
Sanders in particular, culminated in the events
occurring on Friday, February 6, 1998, and Monday,
February 9, 1998. After having criticized claimant's
work performance earlier that day, Mr. Sanders, on
Friday afternoon, February 6, 1998, accused claimant of
sleeping on duty, a company infraction that could
result in termination. Claimant denied sleeping on
duty, maintaining, rather, that he had been waiting in
the terminal office for the checker to give him his
loading instructions. A meeting between management,
claimant, and Kevin Howard, claimant’s union
representative, was scheduled for Monday morning,
February 9, 1998, for the purpose of affording claimant
the opportunity to explain the alleged incident. After
being informed of the accusation and the scheduled
meeting, claimant suffered an anxiety attack, and
therefore arranged to see Dr. Sutton, his family
physician, the following Monday evening.! The
meeting scheduled for Monday morning was cancelled
by employer because employer elected not to take
union representative Kevin Howard off the job he was
working so that he could attend the meeting; the
meeting was rescheduled for that evening, but was
subsequently cancelled by employer. Claimant
testified that he was concerned as to why employer
kept stalling and did not want to meet with him. On
the evening of February 9, 1998, claimant was

' Claimant worked as a linehandler for employer on
Saturday and Sunday, February 7 and 8, 1998, and for two hours
on Monday evening, February 9.

23a

examined by Dr. Sutton, who diagnosed depression
and an anxiety disorder secondary to claimant’s work
situation, instructed claimant to stay off work, and
referred claimant for mental health treatment.

Thereafter, claimant was treated by psychologist
Dr. Holmes and psychiatrist Dr. Arboleda for an
anxiety disorder and major depression with psychotic
features. Dr. Holmes opined that work-related events
and conditions contributed to claimant's illness, and
that claimant was able to return to his regular work by
November 16, 1998, on the condition that he was
assigned to work with different supervisors. In an
independent psychological evaluation conducted at
employer’s request, Dr. Taylor concurred in the
diagnosis of major depression with significant anxiety
caused, in part, by the work-related stress claimant
subjectively experienced. Dr. Taylor concluded that
claimant’s psychological reaction to the workplace
abuse he perceived would prevent claimant from
working in that setting.

Although a meeting between management,
claimant and the union representative eventually was
convened on August 4, 1999, the issues surrounding
the February 6, 1998, incident were not resolved; at that
meeting, claimant was advised that he was being
replaced as header, but his employment was not
terminated. Claimant filed a claim for temporary total
disability compensation from February 9, 1998 through

24a

September 28, 1998, and for permanent partial
disability compensation from September 29, 1998 to the
present and continuing. 2

In his Decision and Order, the administrative
law judge, citing to Marino v. Navy Exchange, 20 BRBS
166 (1988), held that while claimant suffered a
psychological injury, he did not demonstrate working
conditions which could form the basis for a
compensable claim. Accordingly, the administrative
law judge denied claimant’s claim for disability
benefits. On appeal, claimant challenges the
administrative law judge’s determination that
claimant's psychological injury is the result of a
legitimate personnel action and _ that, therefore,
claimant did not demonstrate the existence of working
conditions sufficient to establish his prima facie case.
Employer responds, urging affirmance.

It is well-settled that a psychological impairment
which is work-related is compensable under the Act.
See, e.g., American Nat'l Red Cross v. Hagen, 327 F.2d 559
(7th Cir. 1967); Sewell v. Noncommissioned Officers’ Open
Mess, McChord Air Force Base, 32 BRBS 134 (1998)(en
banc)(Brown and McGranery, JJ., dissenting), aff on
recon. en banc 32 BRBS 127 (1997)(McGranery, J.,
dissenting); see also Pietrunti v. Director, OWCP, 119
F.3d 1035, 31 BRBS 89 (CRT)(2d Cir. 1997).
Furthermore, the Section 20(a), 33 U.S.C. §920(a),
presumption is applicable in psychological injury

2 The parties stipulated that light duty work was available
to claimant commencing September 28, 1998, on a 35 hour per
week basis at an hourly rate of $18. See Decision and Order at 1.

25a

cases. Sewell, 32 BRBS at 135. In order to be entitled to
invocation of the Section 20(a) presumption, claimant
must establish a prima facie case by showing that he
suffered a harm and that either a work-related accident
occurred or that working conditions existed which
could have caused or aggravated the harm. See
Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS
119(CRT)(4th Cir. 1997); Sewell, 32 BRBS at 136.
Claimant’s psychological injury need only be due in
part to work-related conditions to be compensable
under the Act. See Sewell, 32 BRBS at 135; Konno v.
Young Brothers, Ltd., 28 BRBS 57, 61 (1994).

Once the Section 20(a) presumption is invoked,
the burden shifts to the employer to rebut the
presumption with substantial evidence that claimant's
condition is not caused or aggravated by his

employment. See Universal Maritime, 126 F.3d at 262, 31
BRBS at 123 (CRT); see also Del Vecchio v. Bowers, 296
U.S. 280 (1935); American Grain Trimmers, Inc. v. OWCP,
181 F.3d 810, 33 BRBS 71 (CRT)(7th Cir. 1999); cert.
denied, Bath Iron Works Corp. v. Director, OWCP, 109
F.3d 53, 31 BRBS 19 (CRT)(1st Cir. 1997). Where
ageravation of a pre-existing condition is at issue,
employer must establish that work events neither
directly caused the injury nor aggravated the pre-
existing condition resulting in injury. See, e.g., O’Kelley
v. Dept. of the Army/NAF, 34 BRBS 39 (2000). If the
administrative law judge finds that the Section 20(a)
presumption is rebutted, the presumption no longer
controls, and the administrative law judge must weigh
all of the evidence and resolve the causation issue
based on the record as a whole. See Universal Maritime,

26a

126 F.3d 256, 31 BRBS 119; see also Director, OWCP v.
Greenwich, Collieries, 512 U.S. 267, 28 BRBS 43
(CRT)(1994).

In the instant case, the administrative law judge
found the “harm” element of claimant's prima facie case
_ satisfied as it is uncontested that claimant suffers a
psychological injury. The administrative law judge
next determined, however, that claimant's
psychological injury resulted wholly from employer's
legitimate personnel action, and that, accordingly,
pursuant to Marino, 20 BRBS 166, claimant failed to
satisfy the “working conditions” element of his prima
facie case. In Marino, the Board first considered the
issue of whether a psychological condition resulting
from the termination of employment is compensable
under the Act. The Board concluded that a legitimate
personnel action, such as a reduction-in-force, is not a
working condition that can form the basis for a
compensable psychological injury. 20 BRBS at 168.
Drawing a distinction between legitimate personnel
actions and work-related cumulative stress, the Board
in Marino remanded the case for the administrative law
judge to address claimant's allegations that his injury
was due as well to cumulative stress from supervising
a number of locations, insufficient personnel to
perform the job, working more than the required
hours, and performing the duties of subordinates. Id.
On remand, the administrative law judge awarded
benefits on this theory, finding claimant's general
working conditions were a cause of his injury. This
decision was affirmed by the Board on appeal. Marino
v. Navy Exchange, BRB No. 88-1720 (Dec. 12,
1990)(unpublished).

27a

In subsequent cases involving allegation of the
existence of stressful working conditions, irrespective
of any legitimate personnel actions, the Board has held
that claimant’s minimal burden in establishing a prima
facie case requires simply that he demonstrate the
existence of working conditions which could have
caused or aggravated his psychological injury. See
Sewell, 32 BRBS at 136; Konno, 28 BRBS at 61. A
demonstration by claimant of stress in his daily work
environment, including day-to-day interactions with
his supervisor, may satisfy the “working conditions”
prong of claimant's prima facie case. See Sewell, 32 BRBS
at 136. Claimant is not required to show unusually
stressful conditions to order to establish his prima facie
case. See, e.g. Wheatley v. Adler, 407 F.2d 307 (D.C. Cir.
1968). Rather, even where the stress may seem
relatively mild, the claimant may recover if an injury
results. See Sewell, 32 BRBS at 137; Konno, 28 BRBS at
61. Moreover, in determining whether claimant's prima
facie case is established, the relevant consideration
involves claimant’s own perceptions of the work events
or interactions alleged to be stressful, and the effect
such conditions had on claimant. See Sewell, 32 BRBS at
131; Konno, 28 BRBS at 61.3 Thus, in a case in which
claimant alleges the existence of a stressful relationship
with a supervisor, the analysis must focus on the

’ We note, in this regard, that it is axiomatic that employers
accept their employees with all the frailties that predispose them
to injury. J.V. Vozzolo, Inc. v. Britton, 377 F.2d 144, 147-148 (D.C.
Cir. 1967); Vandenberg v. Leicht Material Handling Co., 11 BRBS 164,
169 (1979).

28a

occurrence of events resulting in stress to the claimant,
not whether the supervisor's actions were justified. See
Sewell, 32 BRBS at 136, 137 n.5.4

We now consider claimant challenge on appeal
to the administrative law judge’s conclusion that
claimant's psychological injury is wholly a result of a
legitimate personnel action. At the outset, we note that
the administrative law judge’s conclusion is based on
his findings, first, that employer’s response to the
accusation that claimant was sleeping on duty
constitutes a legitimate personnel action and, further,
that claimant's psychological injury resulted solely from
that action, and not from work-related cumulative
stress. Thus the initial question is whether the
administrative law judge properly found that
employer's response to the allegation that claimant was
sleeping on duty was a legitimate personnel action. In
making this determination, the administrative law
judge reasoned that, as sleeping on duty was
considered to be a serious company infraction which
could result in termination, the accusation, whether it
was true or not, merited both an investigation and a
meeting. See Decision and Order at 8-9. Thus, the
administrative law judge implicitly found that
conducting an investigation and convening a meeting
represented a legitimate personnel action by employer.
However, the evidence as set forth by the

4 The Board stated in Sewell that a focus on whether a
supervisor's actions were justified would require the supervisor to
be at fault in order for the claim to be compensable, a requirement
that would be inconsistent with the strict liability for work-related
injuries on which workers’ compensation rests. 32 BRBS at 137 n.5.

29a

administrative law judge does not support the
reasoning underpinning the administrative law judge’s
finding that employer’s response was a legitimate
personnel action. Specifically, in this regard, the
administrative law judge took note of _ the
uncontroverted hearing testimony that the purpose of
holding ~a meeting was to allow claimant the
opportunity to explain the alleged event. See Decision
and Order 5; Tr. At 81-83; 127-128. Moreover, the
administrative law judge acknowledged the
uncontroverted testimony that the meetings scheduled
for February 9, 1998, were cancelled by employer, a
meeting was not convened until August 4, 1999, and, at
that meeting, the issues surrounding the February 6,
1998 incident were not resolved. See Decision and
Order at 5; Tr. at 29, 39-40, 56-57, 62-63, 82-83, 127-130.
Inasmuch as the uncontroverted evidence establishes
that the issues relating to the accusation that claimant
was sleeping on duty were not resolved at the meeting
that was eventually held 1 2 years after the alleged
infraction, neither the investigation nor the meeting,
which the administrative law judge expressly found
warranted by the accusation, accomplished their stated
purpose.° The fact that the investigation and the
meeting failed to resolve the issues surrounding the
allegation that claimant was sleeping in the office

5 Although the administrative law judge noted that Mr.
Howard investigated the alleged incident, see Decision and Order
at 4, he did not discuss Mr. Howard’s hearing testimony
concerning this investigation. See Tr. At 55-56, 76-79.
Furthermore, the administrative law judge did not discuss Mr.
Sanders’ testimony with respect to the reasons for his assumption
that claimant was sleeping in the office. See Tr. At 99-100, 110-113,
119-120.

30a

undermines the significance attributed to the
investigation and the meeting by the administrative
law judge.® As the rationale for the administrative law
judge’s conclusion that employer’s response to the
accusation constituted a legitimate personnel action is
not supported by the administrative law judge's
construction of the evidence, we must vacate that
conclusion and remand the case for the administrative
law judge to further consider this issue based on the
record as a whole. See Manship v. Norfolk & Western Ry.
Co., 30 BRBS 175 (1996); Marino, 20 BRBS 166.

We consider next the administrative law judge’s
related findings that claimant’s psychological injury
resulted solely from the events related to his
supervisor's allegation that he was sleeping on duty,
and that no other working conditions existed which
could have caused his psychological impairment. See
Decision and Order at 9-10. Initially, the conclusion
that claimant's condition resulted solely from these
events in February 1998 is wholly unsupported by the
medical evidence, see n.7, infra, and in any event,
discussion of the cause of claimant's injury is an
inquiry undertaken after Section 20(a) is invoked. In
finding no other working conditions existed which
could have caused claimant's injury, the administrative
law judge determined that claimant presented little
evidence- to corroborate his testimony _ that
management was conspiring to have him fired. This
determination is not dispositive of whether working

6 We note, in this regard, that the administrative law judge
declined to make a factual determination, on the basis of the
record evidence, as to whether claimant actually did commit the
infraction of which he was accused.

31a

conditions existed which could have caused his injury,
as claimant’s complaints of a stressful working
environment were not limited to a claim of a
conspiracy on the part of management to have him
fired. Rather, in hearing testimony acknowledge by
the administrative law judge, claimant testified to a
pattern of criticism and harassment in his treatment by
Mr. Sanders, which he had reported to Mr. Kubu and
Mr. Wade, the terminal manager. See Decision and
Order at 2-4; Tr. at 12-19, 47-48.

The administrative law judge found claimant's
testimony to be uncorroborated, and, thus, insufficient
to establish that harassment by Mr. Sanders in fact
occurred. In this regard, the administrative law judge
noted that only Mr. Howard recalled that claimant
complained of harassment by Mr. Sanders; the
administrative law judge inferred from Mr. Howard’s
hearing testimony, however, that claimant complained
of this harassment to Mr. Howard only after the
alleged sleeping incident occurred. See Decision and
Order at 9. The administrative law judge’s inference
regarding the timing of claimant's complaints,
however, could not be reasonably drawn on the basis
of Mr. Howard’s testimony. Rather, Mr. Howard
clearly testified that he was told a long time ago by
claimant that claimant was being harassed by Mr.
Sanders; Mr. Howard additionally testified that he had
discussed claimant’s complaints of harassment with
both Mr. Sanders and Mr. Kubu. See Tr. at 66-68.

The administrative law judge further stated that
the fact that claimant complained of harassment to his
doctors does not establish that the work events that he

32a

complained of actually occurred. See Decision and
Order at 9-10. The administrative law judge, however,
did not address the specific incidents of work-related
stress and harassment that claimant reported to Drs.
Taylor and Holmes.” Although the administrative law
judge did not accept the psychologists’ reports of these
incidents as probative evidence that the incidents, in
fact, occurred, he did acknowledge the opinion held by
both Drs. Taylor and Holmes that claimant's
perception of job-related stress and abuse was a cause
of his psychological impairment and that claimant
should refrain from working with those individuals
with whom he had stressful interactions. See Decision
and Order at 6; EX 4; EX 5; EX 8. It is noteworthy, in
this regard, that neither physician attributed claimant's
condition solely to the events surrounding the sleeping
allegation. Moreover, there is no contrary medical
opinion of record. See Sewell, 32 BRBS at 130.

Additionally, although the administrative law
judge acknowledged claimant’s complaints that his
gang was falsely accused of damaging freight and did
not receive desirable overtime assignments, see
Decision and Order at 2, he did not make a

7 Dr. Taylor reported that claimant complained of exposure
to bad language, threats of being fired, false accusation, mistrust
of his union representative and co-workers, and an allegation by
claimant that Mr. Sanders tried to kill him by assigning him to a
worksite with 100° heat. See EX 4.1-4.2. Dr. Homes cited, as
instances of claimant's stressful work environment, threats from
the “top man,” rumors that claimant had damaged freight, threats
of physical harm, a supervisor’s reference to black employees as
“slaves,” a boss’s comment that claimant and his son were the
“sorriest [SOBs] on the dock,” and Mr. Sanders’ accusation that
claimant had urinated on the pier. See EX 5; EX 8 at 7, 10-13.

33a

determination as to whether these events contributed
to cumulative stress in claimant's general working
environment which could have caused or aggravated
claimant's psychological injury. See Sewell, 32 BRBS at
130; Marino, 20 BRBS at 168. Lastly, the administrative
law judge discounted claimant’s complaints of stressful
working conditions which preceded the February 6,
1998 accusation that he was sleeping on duty on the
basis that claimant did not seek psychological
treatment or report symptoms of work-related stress to
any physician until February 9, 1998. See Decision and
Order at 10. The relevant case law, however, does no
support the proposition that, in order to establish a
prima facie case, claimant seek psychological treatment
or manifest stress-related medical symptoms at the
time that the stressful employment events occurred.
Indeed, the compensability of a psychological injury
caused or aggravated by work-related cumulative
stress is premised on the occurrence over time of
stressful work-related events, culminating in the
manifestation of the symptomatology which represents
the psychological injury. See generally Sewell, 32 BRBS
at 129; Konno, 28 BRBS at 61; Marino, 20 BRBS at 168.
See also American Nat'l Red Cross, 327 F.2d 559.

In light of the foregoing, we are unable to
uphold the administrative law judge’s determination
that claimant failed to demonstrate the existence of
working conditions which could have caused or
aggravated claimant’s psychological impairment. On
remand, the administrative law judge must reconsider,
based on the totality of the evidence and in accordance
with the applicable legal principles, whether the
cumulative stress of claimant's general working

34a

conditions could have caused or aggravated his
psychological injury. ® See Sewell, 32 BRBS 134, affg on
recon. en banc 32 BRBS 127; Konno, 28 BRBS 57; Marino,
20 BRBS 166.

We therefore vacate the administrative law
judge finding that claimant did not satisfy the
“working conditions” element of his prima facie case,
and remand the case for reconsideration of whether the
claimant is entitled to invocation of the Section 20(a)
presumption in light of all the evidence of record. If,
on remand, the administrative law judge finds the
Section 20(a) presumption invoked, he must determine
whether employer rebutted the presumption, and if so,
whether a causal relationship is established based on
the record as a whole. See Universal Maritime, 126 F.3d
256, 31 BRBS 119(CRT).

Accordingly, the administrative law judge’s
denial of benefits is vacated, and the case is remanded
for further consideration consistent with this opinion.

SO ORDERED.

6 As previously discussed, the relevant inquiry involves not
merely the work-related events, but claimant's perceptions of
those events and experience of stress resulting from them. See
Sewell, 32 BRBS at 131; Konno, 28 BRBS at 61. Furthermore, focus
on whether employer's actions were justified is not germane to
this inquiry. See Sewell, 32 BRBS at 136, 138 n.5.

35a

/s/ Betty Jean Hall
BETTY JEAN HALL, Chief
Administrative Appeals Judge

/s/ Roy P. Smith
ROY P. SMITH
Administrative Appeals Judge

/s/ Malcolm D. Nelson
MALCOLM D. NELSON, Acting
Administrative Appeals Judge

CERTIFICATE OF SERVICE

00-0592 Robert Holmes v. Virginia International
Terminals, Inc. (Case No. 99-LHCA-1344)
(OWCP No. 05-0103486)

I certify that the parties below were served this day.

Mar 16 2001 ls/ Thomas O. Shepherd, Jr.
(DATE) Thomas O. Shepherd, Jr.
Clerk of the Board

Gary R. West, Esq.
Patten, Wornom, Hatten
& Diamonstein, L.C.
12350 Jefferson Avenue
Suite 360
NEWPORT NEWS, VA 23602
- - Certified

Robert Holmes

2507 Orcutt Avenue

NEWPORT NEWS, VA 23607
- -Certified

36a

R. John Barrett, Esq.
Vandeventer, Black, Meredith
& Martin, L.L.P.
101 West Main Street
Suite 500
NORFOLK, VA 23510
- -Certified

Ms. Carol A. DeDeo, Esq.
Associate Solicitor
U.S. Department of Labor
200 Constitution Avenue, N.W.
Suite S-4325
WASHINGTON, DC 20210

- - Certified

Mr. B.E. Voultsides

District Director
OWCP-Longshore Division
200 Granby Mall

Room 212, Federal Building
NORFOLK, VA 23510

Judge Richard K. Malamphy

U.S. Department of Labor Office of

Administrative Law Judges
603 Pilot House Drive

Suite 300, Commerce Plaza
NEWPORT NEWS, VA 23606

U.S. Department of Labor

Office of Administrative Law Judges

111 Veterans Memorial Blvd.
Suite 530

METAIRIE, LA 70005

37a

U.S. DEPARTMENT OF LABOR
Fax: (757) 873-3634

Office of Administrative Law Judges
603 Pilot House Drive, Suite 300
Newport News, Virginia 23606-1904
(757) 873-3099

Date: February 3, 2000

Case No.: 1999-LHC-1344

OWCP No.: 5-103486

In the Matter of:

ROBERT HOLMES,
Claimant,

V.

VIRGINIA INTERNATIONAL TERMINALS,
Employer.

[ENTERED: FEBRUARY 3, 2000]

DECISION .ND ORDER DENYING
BENEFITS TO THE CLAIMANT

This proceeding arises from a claim filed under
the Longshore and Harbor Workers’ Compensation
Act (“Act”), as amended, 33 U.S.C. 901 et seq. On
August, 23, 1999, a hearing was held in Newport News,
Virginia. For the reasons stated below, the Court
denies the Claimant’s request that the Employer pay

3a

for temporary total disability, permanent partial
disability and medical expenses for alleged work
induced stress.

STIPULATIONS

The Claimant and the Employer have stipulated
to the following:

3 The parties are subject to the jurisdiction
of the Longshore and Harbor Workers’ Compensation
Act.

yO An employer/employee _ relationship
existed at all relevant times.

3. ine Claimant's average weekly wage was
$1,067.61.

4. Light duty work was _§ available
commencing September 28, 1998 at 35 hours a week at
$18.00 per hour.

5. The claim and the notice of the injury
were both timely filed.

FINDINGS OF FACT

Work Events

The claimant, Robert Holmes (“Holmes”), has
worked for the employer, Virginia International
Terminals (“VIT”), since 1978. (Tr. 11). In Spring 1996,
VIT promoted Holmes to the position of header. (Tr.

39a

123). As header, Holmes was the leader of a gang,
which consisted of himself and two other workers. (Tr.
12). A gang loads and unloads different types of
materials. (Tr. 12). Holmes’ gang worked with
materials that included machinery, GE freight, cocoa
beans, and bulldozers. (Tr. 12).

Holmes claimed that he began to experience
difficulty at work in the 1990’s. (Tr. 12). Holmes
explained that he had problems with a supervisor, pier
foreman Bruce Sanders. Holmes claimed that Mr.
Sanders opposed Holmes promotion to header. (Tr.
17). Holmes further alleged that when he voiced these
concerns regarding Mr. Sanders to Mr. Greg Kubu, Mr.
Sanders’ supervisor, that no action was taken. (Tr. 13).

Holmes also complained that his gang did not
receive desirable overtime assignments. (See Tr. 14).
Holmes testified that he was falsely accused of
damaging some newsprint equipment. (Tr. 15, 44). Ifa
gang damaged freight this would affect the amount of
overtime that they would be given. (Tr. 16). Homes’
gang was involved with some damage to cargo on
September 6, 1996. (Tr. 130). Following standard
procedure, VIT conducted an investigation of the
incident and sent Holmes to a drug screen and
analysis. (Tr. 131). Ultimately Holmes was not
punished for this incident. (Tr. 131).

Holmes testified that in the Summer of 1996, Mr.
Sanders accused him or not doing his job and of
damaging freight. (Tr. 17-18, 44-45). Holmes further
testified that Mr. Kubu also complained about his work
performance. (Tr. 18.) According to Holmes, Mr.

ee

40a

Kubu told him that all the pier foremen and checkers
were complaining about his work. (Tr. 18.) Holmes
testified, however, that he never had any problems
with any of the checkers. (Tr. 20). Holmes claimed
that Mr. Kubu said that he would be watching Holmes
with a magnifying glass and reviewing Holmes’ work
with a fine-toothed comb. (Tr. 18).

Mr. Kubu denied that management was
conspiring to get Holmes fired. (See Tr. 84-85). Mr.
Kubu also testified that management did not scheme to
deny Holmes overtime. (Tr. 85). Although he could
not cite any specific instances, Mr. Kubu did, however,
feel that Holmes had a productivity problem and that
such a problem would affect Holmes’ overtime
assignments. (See Tr. 91-92).

Mr. Sanders also stated that he holds no grudge
against Holmes and has never threatened to fire
Holmes. (Tr. 101, 113). Mr. Sanders denied having
either the authority or desire to fire Holmes. (Tr. 101,
113). Mr. Sanders did state that he does have authority
over which gangs get assigned overtime. (Tr. 102, 106).
He denied, however, that he intentionally prevented
Holmes’ gang from receiving overtime. (Tr. 103, 107).
Mr. Sanders cited the type of job and the skill of the
gang as factors that he considered when deciding
whether a particular gang should receive an overtime
assignment. (Tr. 104).

James Wade is the manager for VIT’s entire
Newport News Marine Terminal and Mr. Kubu’s
immediate supervisor. (Tr. 122). Mr. Wade denied
knowing anything about a managerial conspiracy to

4la

fire Holmes. (Tr. 125). Mr. Wade does not have the
authority to fire an employee, but he can remove a
worker as a header. (Tr. 126) To fire an ILA union
member, management would first have a meeting with
that individual and his union representative. (Tr. 126).
Mr. Wade would then report what occurred at the
meeting to his boss Mr. Tarkenton. (Tr. 126). The two
of them would then decide what action to take next.
(Tr. 126). The type of action taken depends upon what
wrongdoing the employee has committed. (Tr. 126).

In the seven years that Mr. Wade has been at the
terminal, he has only terminated two workers. (Tr.
126). One of those individuals was fired because Mr.
Wade caught him sleeping on the job. (Tr. 126). Even
in that circumstance, Mr. Wade still met with the
employee and his union representative before taking
any action. (Tr. 126).

Holmes claimed that he felt his job has been
threatened since 1995. (Tr. 50). Mr. Howard, president
and representative of the union to which Holmes
belongs, has worked in close proximity to Holmes. (Tr.
53). He testified that he has never seen anyone,
including Mr. Kubu or Mr. Sanders, harass Holmes or
treat him unfairly. (Tr. 53, 63). Mr. Howard testified
that management was going to monitor Holmes’ work
performance, but he denied knowledge of any plan by
management to fire Holmes. (Tr. 66-67). Holmes did
tell Mr. Howard that Mr. Sanders was harassing him,
but this allegation came out after Holmes was accused
of sleeping on the job. (Tr. 67-68). Mr Howard

42a

ultimately did speak to Mr. Sanders and Mr. Kubu
about Holmes’ allegation of harassment, but no
resolution was reached. (Tr. 67).

Events of February 6-9, 1998

Mr. Sanders accused Holmes of sleeping on the
job on Friday, February 6, 1998. (See Tr. 20-21, 31, 61).
Mr. Howard, Holmes’ union _ representative,
investigated this allegation. (Tr. 59). He spoke to
Holmes that Friday, at which time Holmes denied the
accusation. (Tr. 61). On the day of the incident,
Holmes said he was waiting in an office for the checker
to complete the paperwork so that his gang could
begin loading freight. (Tr. 25). Holmes also testified
that he was not sleeping when Mr. Sanders came in
and questioned him about the status of his current
loading assignment. (Tr. 25).

Holmes stated that at that time, Mr. Sanders was
upset about the lack of progress on the loading of the
cars and instructed Holmes not to wait on the checker,
but to go ahead and load the freight. (Tr. 26). Holmes
testified that his gang had only been working on that
particular assignment for a couple of hours before Mr.
Sanders arrived. (Tr. 26). |

On the date of the incident, Holmes’ gang, gang
54, was assigned to pier B to unload pulp cars. (Tr. 96).
Because the pulp cars had not yet arrived, gang 54 was
reassigned to stack sacks of beans. (Tr. 96-98). While
supervising the progress of the various gangs, Mr.
Sanders noticed that gang 54 was not working. (Tr.
97). He assumed that gang 54 was taking a break, but

43a

when he returned approximately ten minutes later
gang 54 was still not working. (Tr. 97-98). Mr. Sanders
confronted Holmes about gang 54’s inactivity and
instructed the gang on what work needed to be done.
(Tr. 98).

Later that day gang 54 was reassigned to pier C
for the purpose of loading aluminum ingots into rail
cars. (Tr. 99). Mr. Sanders discovered Holmes asleep
in an office when he went to investigate why only two
people in gang 54 were loading the car. (See Tr. 99,
111). As required, Mr. Sanders reported the sleeping
incident to his supervisor, Mr. Kubu. (Tr. 100).

Mr. Sanders also sent Mr. Wade, the terminal
manager, a discrepancy report dated February 6, 1998.
(Tr. 127). In the report, Mr. Sanders stated that he
found Holmes sleeping on the job and that Holmes was
having productivity problems earlier in the day. (Tr.
127). Mr. Wade scheduled to meet with Holmes, Mr.
Howard, Mr. Kubu, and Mr. Sanders the Monday
following the alleged incident. (Tr. 29, 127). The
meeting was intended to allow Holmes _ the
opportunity to explain the alleged incident. (Tr. 128).

The Saturday, Sunday and Monday following
the Friday incident, Holmes worked as a linehandler.
(Tr. 46). On the day of the incident Anthony Holmes,
Holmes’ uncle, was working as a member of his gang.
(Tr. 47). Holmes’ son was also a regular member of
Holmes’ gang. (Tr. 49).

44a

The Monday meeting ultimately did not take
place because Mr. Howard could not attend the
meeting due to a prior work commitment. (Tr. 29, 56).
The parties finally scheduled a meeting for Wednesday
August 4, 1999. (Tr. 129). Holmes, Mrs. Holmes, Mr.
Howard, Mr. Wade and Mr. Sanders were to attend the
meeting. (Tr. 129). Mr. and Mrs. Holmes, however, left
the meeting when Mr. Sanders arrived. (Tr. 129).
Therefore Mr. Wade decided to have the meeting
without Mr. Sanders, so that Holmes and his wife
would attend the meeting. (Tr. 130).

The remaining parties had the meeting but
never resolved the issue surrounding the February 6
incident. (Tr. 130). Holmes maintains that he was not
sleeping in the office, but rather he was there waiting
for the checker to complete his paperwork. (Tr. 139).
After a year of having temporary headers for gang 54,
Mr. Wade informed Holmes that he would be removed
as header. (Tr. 132-133). Holmes, however, was not
fired from VIT. (Tr. 133).

Medical Treatment History

Holmes has a history of diabetes mellitus and
hypertension. (Tr. 43-44, Ex. 3.1). Holmes’ treating
physician, Dr. Thaddeus Sutton referred Holmes to Dr.
Ola Ayodeji after he discovered Holmes had
proteinuria. (Ex. 3.1). During the November 4, 1997
exam, Dr. Ayodeji observed that Holmes was “in no
apparent distress at rest.” (Ex. 3.2). Two weeks later at
the November 18, 1998 follow-up visit, Dr. Ayodeji
again noted that Holmes appeared to be “in no
apparent distress at rest.” (Ex. 3.3). And again at

45a

Holmes’ January 15, 1998 follow-up office visit, Dr.
Ayodeji wrote that “the patient is in no apparent
distress at rest.” (Ex. 3.6).

On February 6, 1998, after Mr. Howard told
Holmes that he had to attend a meeting Monday
morning to discuss the work incident, Holmes suffered
an anxiety attack. (Tr. 27-28). Holmes informed his
wife of his attack, so she made an appointment with
Dr. Sutton for Holmes for the following Monday
evening. (TR 29). At this appointment, Dr. Sutton
instructed Holmes not to return to work. (Tr. 31-32).
Dr. Lewis Taylor, a clinical psychologist, also advised
Holmes that he should not return to the waterfront or
come into contact with certain individuals. (Tr. 35).
Dr. Taylor also did not want Holmes to be around
heavy machinery or the water. (Tr. 35).

On February 9, 1998, Dr. Sutton diagnosed
Holmes with job-related stress and anxiety disorder.
(Ex. 1.29). Dr. Sutton excused Holmes from work from
February 9, 1998 through May 11, 1998. (Exs. 1.18, 1.21,
1.22, 1.32). In the Spring of 1998, Holmes was also
seeing Dr. Leonard Holmes, a clinical psychologist, for
psychotherapy. (Ex. 4.4) In letters dated February 26,
1998 and March 2, 1998, Dr. Holmes wrote that Holmes
should continue his leave of absence from work until
his physical problems are resolved. (Exs. 5.6, 5.7).

In an independent psychological evaluation
conducted in May and June, 1998, Dr. Taylor
concluded:

46a -

Whether or not the workplace abuse
which Mr. Holmes alleges is real, his
psychological reaction to his perception
of it is real and would probably prevent
his effectively working in that setting.
Without psychological and psychiatric
treatment, it would be difficult for him, in
his current state, to work in any setting.
However, with advice from the mental
health professionals who are treating, a
return to an alternative work situation
may be helpful in leading to a restoration
of self-confidence and sufficient trust in
others to be productive again in gainful
employment.

(Ex. 4.6).

On June 15, 1998, Dr. Holmes released Holmes
to do light duty work. (Ex. 5.25). On February 4, 1999,
Dr. Holmes stated that Holmes could return to work as
long as he did not have “the same supervisor who he
had in the past.” (Ex. 5.52). Dr. Holmes also advised
that Holmes should “return to meaningful
employment in a position similar to that which he had
previously,” but he should not yet return to working
with individuals with whom he still had issues. (Ex.
5.52).

At present, Holmes is still receiving treatment
from a psychologist, a psychiatrist, and his family
doctor. (Tr. 41). He is currently taking the medication
Effexor for his depression and anxiety. (Tr. 41-42). He

ema i a

47a

is also taking the medications Accupril and Norvasc for
his high blood pressure and Glucophage and Accupril
for his elevated blood sugar level. (Tr. 42).

Employment activities

VIT contracts with Outsource Resource, Inc. to
clean Offsite warehouses. (Ex. 9.1). On September 17,
1998, Outsource Resource offered Holmes a job within
his medical restrictions that would begin on September
28, 1998. (Tr. 36, Ex. 9.1). Holmes would work from
6:00 PM to 1:30 AM and be paid at a rate of $18.00 per
hour. (Ex. 9.1) Holmes worked for Outsource
Resource from the beginning of October 1998 through
July 30, 1999. (Ex. 10.3, 10.4). Dr. Holmes, however,
eventually advised Holmes that he could not commute
so far to work because the medication Holmes had to
take made driving sucha long distance unsafe. (Tr. 33,
36-37). Thus, Holmes had to stop going to work
everyday. (Tr. 37).

DISCUSSION

Holmes is seeking temporary total disability
from February 9, 1998 through September 28, 1998.
Holmes is also asking for permanent partial disability
from September 29, 1998, to the present and
continuing.

A work-related psychological impairment is
compensable under the Act. See Director, OWCP v.
Potomac Electric Power Co, 10 BRBS 1048 (D.C. Cir.
1979); Turner v. the Chesapeake & Potomac Telephone

Co., 16 BRBS 255, 257 (1984). To receive the section 20

48a

(a) presumption that a claim comes within the
provision of the Act, however, the claimant must
establish a prima facie case by proving that 1) he
suffered some harm or pain, in this case a
psychological impairment and 2) a _ work-related
accident occurred or working conditions existed which
could have caused the impairment. Adams v. General
Dynamics Corp., 17 BRBS 258, 260 (1985); Kelaita v.
Triple A Machine Shop, 13 BRBS 326, 332 (1981). Once
these two elements are established, a claimant is
entitled, under section 20 (a), to a presumption that the
injury arose out of employment. See U.S. Indus./Fed.
Sheet Metal, Inc. v. Director, OWCP, U.S. Dep’t of
Labor, 455 U.S. 608, 102 S. Ct. 1312 (1982). This
statutory presumption may be rebutted, however, if
the employer presents substantial evidence disproving
the work-relatedness of the injury. See Hughes v.
Bethlehem Steel Corp., 17 BRBS 153, 155 (1985).

In the instant case, there is no doubt that
Holmes did, in fact, suffer a psychological injury.
Three different physicians, Dr. Sutton, Dr. Holmes and
Dr. Taylor, diagnosed him with some form of stress-
related anxiety and depression. Rather, the issue here
is whether Holmes has fulfilled the second pare of the
prima facie case by proving that work conditions
existed which could have caused the psychological
impairment.

The Benefits Review Board (“BRB”) has held
that a “psychological injury resulting from a legitimate
personnel action... is not compensable under the Act.
Such an event is not a working condition which can
form the basis for a compensable injury.” Marino v.

49a

Navy Exchange, 20 BRBS 166, 168 (1988). In Marino,
the legitimate personnel action was a termination of
employment due to a reduction-in-force. See id. The
Board concluded that if claimant’s psychological
condition arose wholly from his termination, the
condition is not compensable. See id.

Thus, the question is two-fold. First, is the
action taken by VIT a legitimate personnel action. And
second, if VIT did take legitimate personnel action
against Holmes, was that action wholly responsible for
Holmes’ psychological impairment or did other work
conditions exist that could have caused his disability.

Mr. Sanders allegedly caught Holmes sleeping
while on duty. Mr. Sanders reported this violation to
his supervisor Mr. Kubu, who in turn reported it to the
terminal manager, Mr. Wade. Following company
policy, Mr. Wade arranged a meeting with Holmes,
Mr. Sanders and Mr. Howard to discuss the alleged
incident. This meeting scheduled for Monday
February 9, 1998, was cancelled. This date also marked
the first day that Holmes was unable to work due to
illness.

In the past, VIT has fired at least one employee
for sleeping at work. Thus, regardless of whether
Holmes was sleeping on duty, the accusation alone is
sufficiently serious enough that it would merit both an
investigation and a meeting. In light of these facts, and
Holmes’ absence of countervailing evidence, the Court
FINDS that VIT’s response to the accusation was a
legitimate personnel action.

50a

Because VIT’s action was a legitimate personnel
action, in order to be entitled to disability Holmes must
prove that work conditions existed which could have
caused his psychological impairment. In order to
prove his prima facie case, the claimant is not required
to show unusually stressful conditions. The claimant
can recover where the stress is relatively mild as long
as an injury results. See Sewell v. Noncommissioned
Officers’ Open Mess, McChord Air Force Base, 32 BRBS
127, 129 (1997). In either situation, however, the
claimant must prove that the alleged events did, in fact,
exist. Holmes has testified that he believed VIT
management was conspiring to get him fired. (Tr. 13,
17-18.) Only two events demonstrate Holmes’
difficulty with management: the time Holmes was
written up for damaging cargo and the time on
February 6 where Sanders first accused Holmes’ gang
of not doing their assigned work and later accused
Holmes of sleeping on duty.

Other than Holmes own testimony, he has
presented very little evidence to support his belief that
management conspired to get him fired. He presented
no witnesses to support his allegation that Sanders
called him names and harassed him. Only Mr.
Howard, Holmes’ union representative, recalled
Holmes complaining about Mr. Sanders harassing him.
However, from Mr. Howard’s testimony, Holmes
appeared to complain to him only after the alleged
sleeping incident. Further, as Holmes often works with
his uncle and his son, one would think they would
testify on behalf of their relative if, in fact, such abuse
was taking place. As it is, Holmes has presented no

5la

corroborating testimony that the events that he claimed
were the source of his work-related stress even
occurred.

Likewise, Holmes’ complaints to his doctors do
not establish that the work events that he complained
of did actually occur. Further, although Holmes’
doctors concluded that his illness was due to work-
related stress, the temporal relationship between
Holmes’ illness and the events of February 6 and 9,
1998 indicate that it was the legitimate personnel action
that resulted in Holmes’ disability.

As previously noted, even though Holmes
claims he had experienced problems with VIT
management throughout the 1990's, only after the
events of February 9, 1998, which have already been
established as a legitimate personnel action, did
Holmes seek any kind of psychological treatment.
Further, on three separate occasions, the last time just
one month before the action at issue, Dr. Ayodeji
observed that Holmes was “in no apparent distress at
rest.” (Exs. 3.2, 3.3, 3.6). Had stressful work conditions
during the 1990’s and not just the legitimate action on
February 9, 1998 been responsible for Holmes’
psychological impairment, one would expect that at
these check-ups that occurred just prior to Holmes’
injury that his physician would have observed that
Holmes was experiencing some form of stress.
However, Holmes reported no symptoms of work-
related stress or depression until after February 9, 1998.

52a

The temporal relationship between Holmes’
psychological injury that occurred in February, 1998
and the legitimate personnel action that took place on
February 9, 1998 can not be ignored. This fact and a
lack of evidence to support any other conclusion,
support a finding that Holmes’ injury was wholly a
result of a legitimate personnel action, and not due to
other work conditions. Thus, because Holmes’
psychological impairment is wholly due to a legitimate
personnel action, he is preciuded from receiving
disability benefits.

ORDER

Holmes’ request for temporary total disability,
permanent partial disability and medical expenses for
alleged work induced stress is DENIED.

/s/ Richard K. Malamphy
RICHARD K. MALAMPHY
Administrative Law Judge

RKM/kal
Newport News, Virginia

53a

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NO. 01-1761
00-592

ROBERT HOLMES,
Petitioner,

V.

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR;

VIRGINIA INTERNATIONAL TERMINALS,
Respondents.

[FILED: DECEMBER 9, 2003]
[ENTERED: DECEMBER 9, 2003]

ON PETITION FOR REHEA.&*NG AND
REHEARING EN BANC

The Petitioner’s petition for rehearing and
rehearing en banc was submitted to this Court. As no
member of this Court or the panel requested a poll on
the petition for rehearing en banc, and

As the panel considered the petition for
rehearing and is of the opinion that it should be
denied,

IT IS ORDERED that the petition for rehearing
and rehearing en banc is denied.

54a

Entered for a panel comprised of Judge
Niemeyer, Judge Motz, and Judge Gregory.

For the Court

/s/ Patricia S. Connor

Clerk

55a

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 01-1761

ROBERT HOLMES,
Petitioner,

Vv.

DIRECTOR, OFFICE OF

WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR;

and VIRGINIA INTERNATIONAL TERMINALS,
Respondents.

[FILED: JUNE 26, 2003]

PETITION FOR PANEL REHEARING
AND PETITION FOR REHEARING EN BANC

Petitioner-Employee, Robert Holmes, by
counsel, pursuant to Rules 35 and 40 of the Federal
Rules of Appellate Procedure and the Local Rules of
this Court, respectfully submits this Petition for Panel
Rehearing and Petition for Rehearing En Ban The
Employee is appealing the unpublished per curiam
panel opinion decided on June 12, 2003.

56a

RULES 35(B)(1) AND 40(B)
STATEMENT OF PURPOSE

Pursuant to Federal Rule of Appellate Procedure

35(b)(1) and Fourth Circuit Local Rule 40(b),
Petitioners’ counsel represents that the following
situations exist:

Be

A material fact has been overlooked in the panel
decision. Despite the panel acknowledging
expressly at hearing that nothing was waived in
Petitioners’ brief, and all three of Petitioners’
briefs avering that the Motion for
Reconsideration was filed on April 6, 2001, the
panel considered only that the Motion was filed
on April 9, 2001, as argued alternatively at
hearing by Petitioner.

Material laws were overlooked in the panel
decision:

A. The panel did not consider law related to
the filing on April 6, 2001: 20 CFR.
802.206 (equating filing with service);
Matulic v. Director, OWCP, 154 F.3d 1052,
1057 (9% Cir. 1998) and New Valley Corp. v.
Gilliam, 192 F.3d 150, 154 (D.C. Cir. 1999)
(liberal mandates and _ presumptions
flowing from the “beneficent purpose and
humanitarian nature” of the Longshore
and Harbor Workers’ Compensation Act
(“Act’)); and New York State Energy
Research and Dev. Auth. v. Fed. Regulatory
Comm., 746 F.2d 64, 67 (D.C. Cir. 1984) (the

57a

equitable “substantial good-faith
compliance” doctrine).

B. The panel did not consider law related to
the filing on April 9, 2001, cited on brief
by Respondents: ICC v. Brotherhood of
Locomotive Eng’rs, 482 U.S. 270, 278 (1986),
Bowman v. Loperena, 311 U.S. 262, 266
(1940), Betty B. Coal v. Director, OWPC,
194 F.3d 491, 496 (4% Cir. 1999); and
Director, OWPC v. Hileman, 897 F.2d 1277,
1279 (4% Cir. 1990), all of which support
the subsequent written decision and
order of vacation by the BRB altering the
deadline for filing the Motion for
Reconsideration and this appeal.

2. The panel opinion is in conflict with decisions of
the United States Supreme Court, this Court and
another Court of Appeals, and the conflict is not
addressed in the panel opinion. See, 1(A&B),
supra.

4. The proceeding involves one or more questions
of exceptional importance.

A. The case presents a question of first
impression whether service by UPS Next
Day Air complies sufficiently with the
liberal service by mail provision of 20
C.F.R. 802.206 in light of “beneficent
purposes and humanitarian nature” of
the Act, the equitable “substantial good-
faith” compliance doctrine, public policy
and no prejudice.

58a

od!

The case presents a question of first
impression whether a written decision on
the merits and order of vacation by the
Benefits Review Board (“BRB”), after its
affirmance by operation of law by
oversight, alters a party’s deadlines for
filing a motion for consideration and
appeal.

ARGUMENT

Whether filed on April 6, 2001, or on April 9,
2001, the Motion for Reconsideration was timely.

1. April 6, 2001:

This Court decided the case as if Holmes’
Motion for Reconsideration was filed on April 9, 2001,
instead of on April 6, 2001. That decision was
predicated solely on oral argument. Opinion at 4n.2.

However, at oral argument, this Court
specifically rejected the assertion of Respondents that
Holmes supposedly had waived all argument on brief,
and expressly stated that it was taking nothing in
Holmes’ brief as waived. On brief, Holmes thrice
asserted consistently that his Motion for
Reconsideration was filed on April 6, 2001. Brief of
Petitioner at 4n.2; Supplemental Brief of Petitioner at 6;
and Reply Brief of Petitioner at 3-4.

sawiesss

FP ORGS SO EOI Oe Pe her ahi ee eee

59a

By its Order on October 29, 2002, this Court
engendered some confusion over the date of filing of
Holmes’ Motion for Reconsideration. In raising a
question of jurisdiction (based on timeliness of filing)
sua sponte, this Court framed the issue: “whether
Holmes’ motion for reconsideration filed April 9, 2001,
was effective to toll the time for filing a Petition for
Review of the denial of benefits?”. On brief, Holmes
continued to maintain that his Motion for
Reconsideration was filed on April 6, 2001; while at
hearing Holmes argued alternatively based on filing on
April 9, 2001, as framed by the Court.

Consistent with all of his briefing, Holmes
reaveres that filing was as of April 6, 2001. Under the
Regulations applicable to a Motion for
Reconsideration, the time of filing is deemed to be the
time of service if “the fixing of the date of delivery as
the date of filing would result in a loss or impairment
of reconsideration rights.” 20 C.F.R. 802.206. Such
liberal time computation is consonant with the
“beneficent purposes and humanitarian nature” of the
Longshore and Harbor Workers’ Compensation Act
(“Act”), whereby this Court has a “mandate to
construe broadly its provisions so as to favor claimants
in the resolution of benefits cases,” Matulic v. Director,
OWCP, 154 F.3d 1052, 1057 (9% Cir. 1998); and
presumptively is to “resolve doubtful questions...in
favor of the claimants.” New Valley Corp. v. Gilliam, 192
F.3d 150, 154 (D.C. Cir. 1999).

Holmes’ Motion for Reconsideration was sent
under cover letter to the BRB on Friday, April 6, 2001,
by UPS Next Day Air. The Motion and letter were

60a

mailed on Friday, April 6, 2001, to all parties in interest
(as shown on the letter as copied), including opposing
counsel. 4/6/01 Letter and Motion for Reconsideration,
Certified Case Record at 6-7; 6/26/03 Affidavit of Gary
R. West (attached); and UPS delivery jacket, “loose” in
Certified Court Record? Per their date-stamps,
Holmes’ Motion for Reconsideration and transmittal
letter were received by the BRB on the next business
day, Monday, April 9, 2001.

This case presents a question of first impression
whether service by UPS Next Day Air qualifies under
the liberal filing by service rule of 20 C.F.R. 802.206.
While UPS Next Day Air is not identical to mail as a
strict technicality, the aforesaid “beneficent purposes
and humanitarian nature” of the Act mandate that this
Court “construe broadly” the service provisions of
§802.221 so as to “favor” Claimant, presumptively
resolving the question of similar service methods in his
favor (even if “doubtful”). Significantly, the BRB held
accordingly, finding that Holmes’ “motion for
‘reconsideration also is timely as to the March 7, 2001
affirmance of the administrative law judge’s decision”.
5/7/01 BRB Order at 1n.1, Certified Court Record at 1-
4. Obviously the BRB deemed the Motion for
Reconsideration filed as of the time of service by UPS
Next Day Air on April 6, 2001.

’ The Affidavit and jacket are before this Court on
Petitioner's Rule 10(E) Motion to Supplement the Record filed
contemporaneously herewith.

61a

Moreover, on the particular facts of this case,
there is absolutely no prejudice in equating service by
UPS Next Day Air with mailing. Mailing the Motion
for Reconsideration on Friday, April 6, 2001, could not
possibly have resulted in actual delivery to the BRB
any sooner than its next business day, Monday, April 9,
2001 (and possibly could have resulted later delivery).
It is undisputed that the Motion for Reconsideration
actually was delivered by UPS Next Day Air on
Monday, April 9, 2001, i.e., the earliest day possible by
mail.

Certainly in the context of the “beneficent” and
“humanitarian” Act, public policy is served by
recognizing “substantial good-faith compliance” where
there is absolutely no attendant prejudice. In other
cases, “technical noncompliance with ...deadlines was
excused in part because there had been substantial
good-faith compliance.” New York State Energy Research
and Dev. Auth. v. Fed. Energy Regulatory Comm'n, 746
F.2d 64, 67 (D.C. Cir. 1984). To hold otherwise is to
elevate form over substance.

Because a timely Motion for Reconsideration-
was filed by Holmes within 30 days of April 4, 2001,
the 60-day time within which to file an appeal with this
Court instead ran from May 7, 2001, when the BRB
denied the Motion. Ramey v. Stevedoring Servs. of Am.,
134 F.3d 954, 959 (9th Cir. 1998). Accordingly, this
appeal was timely filed on June 9, 2001.

62a

II. April 9, 2001:

The case also presents a question of first
impression whether the order of vacation by the BRB,
after its affirmance by operation of law by oversight,
alters a party’s deadlines for filing a Motion for
Reconsideration and appeal. Hoimes reurges that the
BRB’s written decision on the merits on March 16, 2001,
was a de facto reconsideration of its affirmance of the
ALJ's decision by operation of law on March 7, 2001.
Based on initial hearing, this Court was unpersuaded
simply because: “At the time the BRB issued its March.
16, 2001 decision, it was unaware that it had affirmed
the ALJ’s decision by operation of law on March 7,
2001.” Opinion at 6n.3 (emphasis added).

The BRB being “unaware” of the prior
affirmance by operation of law is exactly what renders
it’s the BRB’s subsequent reversal on the merits a de
facto “reconsideration” (despite not being denoted so
expressly). That is to say, given that there already had
been an initial BRB decision by operation of law, the
BRB’s subsequent decision to the contrary on the
merits necessarily amounted to a “reconsideration” in
fact of the earlier decision. The fact that the BRB’s
written decision on March 16, 2001, overlooked that the
requisite one year for automatic affirmance had passed,
simply does not change that after its decision by
operation of law on March 7, 2001, the BRB
reconsidered in fact what it already had decided and
upon such de facto reconsideration decided it
differently. It is irrelevant that the actual
reconsideration was the product of some oversight; the

—— ,

63a

only material (and dispositive) point is that there was,
in fact, a further (new) reconsideration on the merits
and a decision thereon. 1°

Four decisions of the United States Supreme
Court and the Fourth Circuit Court of Appeals cited by
the VIT in its Supplemental Brief support that the BRB
reconsidering and deciding the matter on the merits -
even if by oversight - reset the clock for purposes of
moving for reconsideration and appellate review. ICC
v. Brotherhood of Locomotive Egn’rs, 482 U.S. 270, 278
(1986); Bowman v. Loperena, 311 US. 262, 266 (1940);
Betty B. Coal v. Director, OWCP, 194 F.3d 491, 496 (4th
Cir. 1999); and Director, OWCP v. Hileman, 897 F.2d
1277, 1279 (4 Cir. 1990). The Supreme Court in
Locomotive Egn’rs pronounced, “When the Commission
reopens a proceeding for any reason and _ after
reconsideration, issues a new and final order setting
forth the rights and obligations of the parties, that
order...is reviewable on its merits.” 482 US. at 278
(emphasis added). Similarly, the Supreme Court in
Bowman previously mandated that despite
“considering the merits [‘late’],...time for appeal runs

10 Holmes respectfully submits that this Court places undue
emphasis on the BRB’s decision by operation of law being a “final
order.” Opinion at 5-6 (emphasis on original). The word “final” in
this context does not mean “unalterable.” It merely means that
affirmances by operation of law, like affirmances and reversals by
written decision on the merits, are “final” orders for purposes of
appeal. Just as there is no real dispute that “final” orders by
written decision nonetheless are subject to “reconsideration,”
there can be no genuine dispute that “final” orders by operation of
law likewise are subject to “reconsideration,” within 30 days.
Thus, it is irrelevant in the context of “reconsideration” that an
affirmance by operation of law is a “final “order for purposes of
appeal

64a

from the date thereof.” 311 U.S. at 266. Likewise, the
Fourth Circuit in Hileman found that the period for
filing a petition for review dates from the last board
decision. 897 F.2d at 1279. Recently, Betty B. Coal, this
Court explained that the “bright line” is “the agency's
‘formal disposition’ controls.” 194 F.3d at 496.

In the case at bar, even though arguably “late”
as in Bowman, the BRB did in fact reopen this case after
its affirmance by operation of law, reconsidered it and
issued a new decision on the merits within Locomotive
Egn’rs, the “reason” for the same being irrelevant. That
“formal disposition’ controls” under Betty B. Coal.
Under Hileman, the period for filing a petition for
review dates from the last board decision, which was
its subsequent Order of vacation on April 4, 2001.
However, because a timely Motion for Reconsideration
was filed by Holmes within 30 days of April 4, 2001,
the 60-day time within which to file an appeal with this
Court instead ran from May 7, 2001, when the BRB
denied that Motion. Ramey v. Stevedoring Servs. of Am.,
134 F.3d 954, 959 (9 Cir. 1998). Accordingly, this
appeal was timely filed on June 9, 2001.

CONCLUSION

This Court should rehear this case, by panel and
en banc, and the 5/7/01 Order of vacation of the
Benefits Review Board should be reversed.

Respectfully submitted,
ROBERT HOLMES
By: /s/ Avery T. Waterman, Ir.

Avery T. Waterman, Jr.
Of Counsel

65a

Avery T. Waterman, Jr., Esq.

Jennifer West Vincent, Esq.

Patten, Wornom, Hatten & Diamonstein, L.C.
12350 Jefferson Avenue

Suite 360

Newport News, VA 23602

(757)223-4555

(757)249-3242 Fax

Dated:June 26, 2003
CERTIFICATE OF SERVICE

I hereby certify that two (2) copies of the
foregoing Petition for Panel Rehearing and Petition for

Rehearing En Banc was mailed first class, postage
prepaid, on this 26 day of June, 2003, to:

Richard J. Barrett, Esq.

Vandeventer Black, LLP

500 World Trade Center

Norfolk, VA 23510

Counsel for Virginia International Terminals

Samuel J. Oshinsky, Esq.

U.S. Department of Labor

Office of the Solicitor

200 Constitution Avenue NW
Washington, D.C. 20210

Counsel for U.S. Department of Labor

/s/ Avery T. Waterman, Jr.
Avery T. Waterman, Jr.

id

66a

United States Department of Labor
Benefits Review Board
00-0592

Robert Holmes,
Petitioner,

Vv.

Virginia International Terminals,
Respondent.

[FILED: APRIL 9, 2001]
Motion for Reconsideration

Now Into Court, through undersigned Counsel
comes the Claimant/Petitioner, Robert Holmes who
respectfully requests that this Board’s Decision of April
4, 2001 and the “affirmed” ALJ decision arising from
the application of Public Law 106-544, 114 Stat 2763 be
reconsidered.

The Board issued a decision on March 16, 2001
which remanded this case back to the Office of
Administrative Law ludges. On April 4, 2001, the
Board sua sponte issued another decision citing public
law 106-554, 114 Stat. 2763 indicating that its prior
ruling had been delayed due to a “clerical error”, and
was therefore not timely filed.

The Claimant respectfully suggests that
equitable relief should be invoked to relieve the
Claimant of the drastic consequences of a filing error
by the Clerk of the Board. The intention of the Board

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67a

was Clearly stated in the Decision filed on March 16,
2001. It was also clearly the Board’s intention for that
decision to be “filed” in a manner consistent with
public law 106-554. For this reason, the Board’s
decision of April 4, 2001 shouid be reconsidered.

Procedural Due Process requires that the Board
follow its established rules regarding a Petition for
Reconsideration. The Board’s regulations and rules
allow for a thirty (30) day period for the filing of a
Motion for Reconsideration. The Claimant therefore
request Reconsideration of the of the “affirmed” AL]
decision that arose as the result of the application of
Public Law 106-544, 114 Stat 2763 on March 7, 2001.
Claimant respectfully requests that this Motion for
Reconsideration be considered as Claimant's request
for a reconsideration of the AL]’s “affirmed” decision
brought about by the “clerical error” of the Board. The
Claimant respectfully requests that the Board
reconsider the “affirmed” ALJ decision, apply the
correct legal principles to that decision, and remand
this case to the ALJ by its ruling on this Motion to
Reconsider in a manner consistent with its prior
substantive, but untimely decision.

Respectfully submitted,
/s/Gary R. West
Gary R. West

68a

TRANSCRIPT OF
ROBERT V. HOLMES V. DIRECTOR, OWCP
VIRGINIA INTERNATIONAL TERMINALS,
NO. 01-1761
BEFORE THE FOURTH CIRCUIT OF APPEALS

[DATED: April 1, 2003]

Before: Judge Paul V. Niemeyer
Judge Diana G. Motz
Judge Roger L. Gregory

Appearances:

Avery T. Waterman, Esquire

Patten, Wornom, Hatten & Diamonstein
For the Petitioner

R. John Barrett, Esquire
Vandeventer Black, L.L.P.
For the Respondent

69a

JUDGE NIEMEYER: Holmes versus the Director.

Mr. Waterman.

MR. WATERMAN: Thank you. I am Avery
Waterman; I represent the Petitioner, Mr. Holmes. This
morning we are appealing the April 4, 2001 vacation of
the March 16th, 2001 merits decision of the BRB in our
favor.

This case asks you to interpret and construe
Public Law 104-134 in relation to CFR 802.406 and 407,
and specifically to address the other Circuit opinions in
Sun Ship and Burton, which we believe this Circuit
should reject. It is our position that the March 16, 2001
merits decision should stand and is standing.

On June 8th, 2001 we filed the petition for
review before this Court, which was timely, because it
was within 60 days of our April 9, 2001 motion for
reconsideration, which was timely.

JUDGE NIEMEYER: Let me ask you, what was your
motion for consideration about?

MR. WATERMAN: Motion for reconsideration?

JUDGE NIEMEYER: Yes. In other words, motion for
reconsideration usually asks the decision maker to
reconsider for some reason, either a reason overlooked
or a case or a fact or some improper reasoning or
whatever; but you filed a motion for reconsideration
against something that operated by question of law,
and there was no decision. So what are you asking for?

70a

MR. WATERMAN: Your Honor, we are asking that
the Court --

JUDGE NIEMEYER: I guess my question -- and just to
telegraph where I am going -- my question is why is a
motion for reconsideration operative in this context?

MR. WATERMAN: What the BRB should have
reconsidered was its vacation of its merit decision on
March 16, 2001.

JUDGE NIEMEYER: I think that didn't have any effect.
If we conclude that the case was decided by, as a
matter of law, then the time runs from that date,
doesn't it?

MR. WATERMAN: No, Your Honor. Our position --
JUDGE NIEMEYER: Our board entered an opinion in
error, didn't it? It didn't have jurisdiction at that point,

so -

MR. WATERMAN: Well, Your Honor, we take the
position that the Court did have jurisdiction.

JUDGE NIEMEYER: Oh.
JUDGE MOTZ: What do we do with this statute?

MR. WATERMAN: That statute --

JUDGE MOTZ.: Is it unconstitutional?

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MR. WATERMAN: No, Your Honor, but it should not
be construed --

JUDGE MOTZ: We just don't follow it?

MR. WATERMAN: No, you follow it, but you don't
expand it beyond its letter and intent. That Public Law
104-134 was enacted simply toward clearing a backlog.
As the Ramie decision has said, it was merely to give an
opportunity to claimants who are in the netherworld to
move ahead with review. ~~ _

That decision also explained very cogently that
Public Law 104-134 was not intended to divest
anybody of anything, that is, it did not divest the
parties of rights and, I think the other side of that coin
is, it did not divest the Court from jurisdiction. And
the way we know that is --

JUDGE NIEMEYER: If the ALJ denied benefits, then if
the judgment was entered automatically by the statute
and if you don't appeal it, you lose rights, don't you?
Divest you of your rights? .

MR. WATERMAN: Well, I would agree, had the BRB
not taken upon itself to enter a merits determination
thereafter; that's the key here, I mean, the bottom --

JUDGE NIEMEYER: Was it authorized to do that?

MR. WATERMAN: Yes, I believe so. Again, as Ramie
indicates, just because Public Law 104-134 sets this one-
year trigger, it doesn't mean that everything stops.

72a

Specifically, the parties and the Court can reconsider
after that time.

JUDGE MOTZ: When did you file your motion for
reconsideration?

MR. WATERMAN: The Motion for Reconsideration
was filed on April 9, 2001.

JUDGE MOTZ: Okay. In Ramie, even if Ramie is good
law -- that's the case you're relying on, right?

MR. WATERMAN: That is one of the cases.

JUDGE MOTZ: Motion for Reconsideration was filed,
as I read it, within the period of time after the
automatic order was filed, right, and yours wasn't?

MR. WATERMAN: Correct, but the difference
between our case law --

JUDGE MOTZ: So (unintelligible) on fact.

MR. WATERMAN: Yes, yes. Our case -- Ramie did not
feature this special merits decision that we have, nor
did it feature this vacation of the same. So we -- within
five days of the BRB vacating its March 16th merits
decision, we moved for reconsideration. So we are
timely. We are timely. And I think the Court, under
802.407 --

JUDGE NIEMEYER: Well, maybe all we are reviewing,
then, is the Board's decision to vacate its order.

73a

MR. WATERMAN: I can agree with that.

JUDGE NIEMEYER: If we do that, then all -- we don't
have the merits before us because the merits are
precluded by time bound -- in other words, the Board
entered an order after the drop dead date, right?

MR. WATERMAN: Correct.

JUDGE NIEMEYER: And you asked for
_reconsideration of the Board, the Board then vacated
that?

MR. WATERMAN: Yes.

JUDGE NIEMEYER: And _ then you asked for
reconsideration of that?

MR. WATERMAN: Yes.
JUDGE NIEMEYER: So all we have to decide on this

appeal is whether the Board acted properly on those,
on vacating.

MR. WATERMAN: Well, you could go that narrowly,
because if you agree --

JUDGE NIEMEYER: That's all we could, can't we?

MR. WATERMAN: Yes, I agree.

JUDGE NIEMEYER: Because you didn't appeal the
drop dead date, which is, which was an affirmance of
what the ALJ did. That happened on March 7th.

74a

MR. WATERMAN: Well, that's not good. In as much
as we are appealing the vacation, what we are saying is
that there should have been no vacation --

JUDGE NIEMEYER: Right.

Mr. Waterman-- that the March16, 2001 merits
determination should be in place.

JUDGE NIEMEYER: It should be and it's not, right.

MR. WATERMAN: And that is meritorious and wins
the day for us.

JUDGE NIEMEYER: Well, forget the last part, because
I am not sure yet. We're are not quite there yet. So the
question you have to argue now is that the Board had
authority to enter a merits decision on March 16th.

MR. WATERMAN: Absolutely. 802.407 -

JUDGE NIEMEYER: And the question is what gives
_ you that authority? Where is that?

MR. WATERMAN: I would say that is CFR 802.407.

JUDGE NIEMEYER: Yeah. And what's the provision?
What does it say? .

MR. WATERMAN: And the provision is that not only
can a party seek reconsideration, but that the Board
itself sui sponte can reconsider without a party even
asking. And I think what we had here, inasmuch --

75a

JUDGE NIEMEYER: You're not quite at my point. |
understand the reconsideration business. The question
is whether the Board can decide the merits of the case
after the year has passed. Do we have any law on that?

MR. WATERMAN: | don't mean to be contentious
unduly, but I suggest --

JUDGE NIEMEYER: But you are suggesting that is a
reconsideration. But it can't be. The question is
whether it has the power to reconsider.

MR. WATERMAN: I think Ramie tells us that it does,
because the Ramie decision Says that 802.406 and
802.407 survive Public Law 104-134. That public law
one-year window’ doesn't wash away _ the
reconsideration and _ tolling provisions of the CFR,
That is exactly what Ramie says. It says this is an
Opportunity --

JUDGE NIEMEYER: Well, I'm not talking about the
tolling provisions. I am talking about where does the
Board get the power to adjudicate the merits after a
year has passed?

MR. WATERMAN: It never was divested.

JUDGE NIEMEYER: You don't think the public law
divested it?

MR. WATERMAN: No. And I think -- again, going on
the reasoning of Ramie -- that the public law merely
provided an opportunity, and in the Ramie's words,
did not divest. It Says it didn't divest. It did not

76a

specifically say that we are abrogating, overruling,
washing away the CFR regs. It did not do so.

That we, you know, can reasonably construe
things narrowly, and these rights of the parties to seek
reconsideration exist, as does the Courts' rights sui
sponte. And it says in 802.407, Section D, the Court, --
on its own motion that three members, three members,
can vote in favor of a modification.

Well, that's what we have. That March 16, 2001
opinion was a unanimous three-member opinion. So,
we have three members, within 30 days of the
affirmants, if you will, by law, modifying, totally
reversing the position, with, I will submit to the Court,
very detailed, cogent reasons; you know, legal case
support as well as factual observations.

JUDGE GREGORY: Counselor, you would say, then,
that the March16th decision was really a
reconsideration?

MR. WATERMAN: I think that it is tantamount to
that. It amounts to a de facto sui sponte reconsideration
which was within the power of the Court to look at and
modify.

JUDGE NIEMEYER: The Board could anytime, then,
reverse the effect of the public law?

MR. WATERMAN: Well, I must say there is to me an
open issue under Section D. If you look at the other
sections, it clearly says that the parties must petition,
must seek, move for reconsideration within 30 days.

77a

Section D, which is about the Court, the BRB,
acting on its own, is silent as to whether that 30 days
would apply to things done sui sponte or not. So that is
an open question, but it is irrelevant here because we
did it within four days. Excuse me; the BRB made its
determination within nine days of the --

JUDGE NIEMEYER: I guess my question still stands,
though, is that you are taking the position that we
would have to conclude that the Board could bypass
the one-year provision simply by sui sponte granting
reconsideration and then deciding the case after the
one year. |

MR. WATERMAN: Yes. What the temporal limits on
that would be is an open question which the Court
would not have to decide.

JUDGE NIEMEYER: It would be open. It seems to me
if they can bypass it, then we are right back to the old
regime.

MR. WATERMAN: Well, I think --

JUDGE NIEMEYER: Because what they can simply do
is, they say we have issued an order, we are
reconsidering, and they could come out with the merits
or they could grant themselves a postponement, or
whatever.

MR. WATERMAN: The temporal thing is significant
because if the 30-day window that is clearly applicable
to the parties were applicable to the Board itself, then
that puts a sunset clause on it.

78a

Your point, I understand, is if there is not that
window, that sunset clause, then there is more open-
ended authority by the Board. The problem here,
though, was, as I understand the background law, not
the Board waffling back and forth, but rather claimants
getting left in the netherworld for years and years and
years, where they just get no guidance and for lack of
guidance are not enfranchised, had no legal right --

JUDGE NIEMEYER: Oh, I understand the motive for
the statute. But now that the statute's passed, don't we
have to look at the statute? And the statute is sort of --
there is a cut-off there. It says "no funds shall be
expended."

MR. WATERMAN: The statute, as I think the language
of Ramie appropriately says, provides the opportunity
for litigants to get out of the netherworld and seek
review, but it doesn't divest the --

JUDGE NIEMEYER: But it doesn't take it out
(unintelligible) litigants, does it? You say it provides
the litigants. I don't see where it says it. It says any
such decision pending a review by the Benefits Review
Board for more than a year shall be considered
affirmed by the Board on the one-year anniversary.

MR. WATERMAN: I understand and --

JUDGE NIEMEYER: And be considered the final word
of the Board. And so, it's not a discretion or an option
for the parties to invoke, is it?

MR. WATERMAN: With -- I did not follow you.

79a

JUDGE NIEMEYER: Well, in other words, you are sort
of suggesting that since it was done for the benefit of a
particular party, that the party could sort of -- that it
shouldn't be -- it shouldn't work a negative effect on
the party.

And I am suggesting to you that all you need to
do is to have a case where the ALJ denied you benefits,
and this one year passed and it's affirmed. It seems to
me it is denying you benefits and Congress clearly has
both a negative and a positive. It gives you an
opportunity to go forward, and it also cuts you off if
you don't go forward.

MR. WATERMAN: I understand that; and all I am
saying is is, just like a party after an adverse decision
by the ALJ has an opportunity to go forward, so does
the BRB itself. That it is not some dichotomy that, in
the event of the one year passing, parties can go
forward within 30 days, but the BRB itself cannot
under any circumstance or time constraint, go forward
Sui sponte.

JUDGE MOTZ: Well, why should that be -- if the BRB
hasn't acted within a year, why couldn't we say that
there has been a-- why couldn't the most reasonable
interpretation of the statute be that there's been a
congressional judgment that if the BRB does not act
within a year, it has no more jurisdiction to act?

MPR.. WATERMAN: Well --

JUDGE MOTZ: You can appeal wh

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1204%3A1. Public record. Not legal advice.