Opposition Brief — Holmes v. Director, Office of Workers' Compensation Programs

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— Supreme Court, U.S.

2 FILED

No. 03-1288 MAY 11 2004

Jn the Supreme Court of the United States

ROBERT HOLMES, PETITIONER

Vv.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, DEPAPTMENT OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

Department of Justice j

Washington, D.C. 20530-0001

HOWARD M. RADZELY (202) 514-2217

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor of Labor

MICHAEL P. DOYLE

Attorney

Department of Labor

Washington, D.C. 20210

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the court of appeals correctly held that it

lacked jurisdiction under Section 21(c) of the Longshore

and Harbor Workers’ Compensation Act, 33 U.S.C.

921(c), to review a final decision of the Department of

Labor’s Benefits Review Board, where petitioner filed

his petition for review more than 60 days after the

Board’s decision became final.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Adkins v. Director, OWCP, 889 F.2d 1360

(4th Cir. 1989) ...... faces 6

Bowman v. Loperena, 311 U.S. 262 (1940) a

Burton v. Stevedoring Servs. of Am., 196 F.3d

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Dailey v. Director, OWCP, 936 F.2d 241 (6th Cir.

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Director, OWCP v. Hileman, 897 F.2d 1277

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Director, OWCP v. Sun Ship, Inc., 150 F.3d 288

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ICC v. Brotherhood of Locomotive Engineers, .

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Ramey v. Stevedoring Servs. of Am., 134 F.3d

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Statutes and regulations:

Act of Apr. 26, 1996, Pub. L. No. 104-134, 110

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Consolidated Appropriations Act, 2001, Pub. L.

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Department of Labor Appropriations Act, 2002,

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Statutes and regulations—Continued: Page

Endangered Species Act of 1973, 16 U.S.C. 1631

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Longshore and Harbor Workers’ Compensation Act,

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Jn the Supreme Court of the Gnited States

No. 03-1288

ROBERT HOLMES, PETITIONER

Vv.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, DEPARTMENT OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-10a)

is not published in the Federal Reporter but is re-

printed in 66 Fed. Appx. 491. The decisions of the

Benefits Review Board (Pet. App. 1la-15a, 16a-19a,

20a-36a) and the administrative law judge (Pet. App.

37a-52a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 12, 2003. A petition for rehearing was denied on

December 9, 2003. Pet. App. 53a-54a. The petition for a

writ of certiorari was filed on March 8, 2004. The

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

1254(1).

(1)

STATEMENT

1. The Longshore and Harbor Workers’ Compen-

sation Act (LHWCA), 33 U.S.C. 901 et seg., provides

compensation for work-related injuries that result in

the disability or death of covered employees engaged in

maritime work. 33 U.S.C. 902(8), 903. Contested

LHWCA claims are initially resolved by administrative

law judges (ALJs), 33 U.S.C. 919(d), whose decisions

are subject to review by the Benefits Review Board

(BRB), 33 U.S.C. 921(b)(3). The BRB, which is com-

prised of five permanent members and up to four

temporary members, 33 U.S.C. 921(b)(1) and (5),

typically assigns appeals to three-member panels for

disposition, 20 C.F.R. 801.301(b), 802.407(a).

Once a BRB panel renders a decision, an aggrieved

party may seek BRB panel and/or en banc recon-

sideration by filing a motion within 30 days of the

decision. 20 C.F.R. 802.407(a) and (b). In addition, any

permanent BRB member may sua sponte call for en

bane reconsideration of a panel’s decision, which is

granted upon the affirmative vote of three permanent

members. 20 C.F.R. 802.407(c) and (d). Finally, an

aggrieved party may seek review in the appropriate

court of appeals by filing a petition for review within 60

days of the BRB’s final decision. 33 U.S.C. 921(c). The

timely filing of a motion for reconsideration with the

BRB, however, tolls the time for filing a petition for

review. 20 C.F.R. 802.406.

Since 1996, Congress has provided in successive

appropriations laws that ALJ decisions appealed to the

BRB automatically become final for purposes of judicial

review if the BRB does not act upon them within one

year of the appeal date. See, e.g., Department of Labor

Appropriations Act, 2002, Pub. L. No. 107-116, 115

Stat. 2177, 2185; Ramey v. Stevedoring Servs. of

America, 134 F.3d 954, 957 (9th Cir. 1998). For

example, Public Law No. 106-554, which covered the

time period at issue here, providea:

That no funds made available by this Act may be

used by the Secretary of Labor to review a decision

under the [LHWCA] that has been appealed and

that has been pending before the Benefits Review

Board for more than 12 months: Provided further,

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.

Consolidated Appropriations Act, 2001, Pub. L. No.

106-554, 114 Stat. 2763, 2763A-10.

2. Petitioner, Robert Holmes, filed a claim for dis-

ability benefits under the LHWCA due to an alleged

work-related psychological impairment. Pet. App. 47a-

48a. Following an evidentiary hearing, an ALJ entered

an order denying petitioner’s claim on February 3,

2000. Jd. at 5a, 37a. Petitioner filed a timely appeal

with the BRB on March 7, 2000. Jd. at 5a.

On March 16, 2001, a three-member panel of the BRB

entered a decision vacating the ALJ’s decision and

remanding the matter for further proceedings. Pet.

App. 20a-34a. On April 4, 2001, however, the panel

vacated its March 16 decision. Jd. at 16a-17a. It ex-

plained that the decision should have been issued on or

before March 6, 2001, but was not issued until March 16,

2001, because of a clerical error. Ibid. Consequently,

the panel explained, the ALJ’s decision became the

BRB’s final decision as of March 7, 2001, by virtue of

Public Law No. 106-554’s one-year review deadline.

Ibid. The panel advised that “any party aggrieved by

the administrative law judge’s decision may appeal the |

decision within 60 days of [March 7]” pursuant to 33 \

U.S.C. 921(c). Pet. App. 17a n.2.

Petitioner filed a motion for reconsideration with the

BRB on April 9, 2001.’ Pet. App. 66a. He argued that

“equitable relief should be invoked to relieve [him] of

the drastic consequences of a filing error by the Clerk

of the [BRB].” Ibid. In addition, petitioner asked the

BRB to reconsider the March 7 automatic affirmance

according to the “established rules regarding a Petition

for Reconsideration.” Id. at 67a.

The BRB denied the motion on May 7, 2001. Pet.

App. 1lla-18a. It explained that the BRB does not have

“equitable powers” and that Public Law No. 106-554

contained no provision authorizing the BRB to review

an ALJ decision beyond the statutory one-year dead-

line. Id. at 12a-13a. The BRB thus concluded that it

— was “without authority to review the [ALJ]’s findings

of fact and conclusions of law by way of a motion for re-

consideration.” Id. at 13a.

3. Petitioner filed a petition for review on June 8,

2001, which the court of appeals dismissed for lack of

jurisdiction in an unpublished, per curiam opinion. Pet.

App. la-10a. The court reasoned that the 60-day time

limit for filing a petition for review commenced on

1 In a petition for rehearing filed with the court of appeals,

petitioner argued that he filed his motion for reconsideraticn with

the BRB on April 6, 2001. Pet. App. 58a-61a. The court of appeals, i

however, determined that the motion for reconsideration was filed

with the BRB on April 9, and petitioner concedes in his petition for

a writ of certiorari that he filed the motion on April 9. Pet. 4, 9;

Pet. App. 66a.

—SS—_

March 7, the date on which the ALJ’s decision became

the BRB’s final decision by operation of law. Id. at 8a.

The court also determined that petitioner’s April 9

motion for reconsideration did not toll the petition-filing

deadline, because that motion was not filed within 30

days of March 7, 2001, and was therefore untimely. Jd.

at 9a. Finally, the court rejected petitioner’s contention

that the BRB’s March 16 order was a sua sponte recon-

sideration of the March 7 automatic affirmance. Id. at

8a & n.3. Because petitioner did not seek judicial re-

view within 60 days of March 7, the court concluded, the

appeal was untimely and had to be dismissed. Id. at

8a-10a.

ARGUMENT

The court of appeals held in an unpublished decision

that it lacked jurisdiction because petitioner filed his

petition for review beyond the time limit prescribed in

Section 21(c) of the LHWCA, 33 U.S.C. 921(c). That

fact-bound decision is correct and does not conflict with

any decision of this Court or any other court of appeals.

Further review is therefore not warranted.

1. The court of appeals correctly held that it lacked

jurisdiction over this action because petitioner failed to

timely file his petition for review. As the court of

appeals explained, petitioner had “60 days from March

7, 2001, or until May 6, 2001, to petition [the court of ap-

peals] for review of the ALJ’s decision.” Pet. Avp. 8a.

Petitioner, however, “did not file his petition for review

* * * until June 8, 2001,” and the petition for review

was, therefore, not timely filed. Jbid. As the court of

appeals determined, moreover, petitioner’s April 9

motion for reconsideration did not toll the time for filing

a petition for review, because it was filed with the BRB

more than 30 days after March 7. See id. at 9a; 20

C.F.R. 802.406, 802.407(a) (motion for reconsideration

filed within 30 days of the BRB’s final decision tolls the

time for filing a petition for review in the court of

appeals). Under these circumstances, the court of

appeals properly dismissed the petition for review

because it lacked jurisdiction. See Adkins v. Director,

OWCP, 889 F.2d 1360, 1361 (4th Cir. 1989) (holding that

Section 21(c) of the LHWCA is a jurisdictional pro-

vision).

Petitioner contends that the BRB’s March 16 decision

“necessarily constituted a de facto reconsideration and

modification” of the March 7 automatic affirmance “as

permitted by 20 C.F.R. § 802.407.” Pet. 4. Under that

view, the March 16 decision tolled the time for filing a

petition for review, and a new 60-day filing period

began on April 4, the date on which the BRB vacated

the March 16 decision. That filing period, in turn, was

tolled on April 9, when petitioner filed his motion for

reconsideration with the BRB. A new filing period

then began on May 7, the date on which the BRB

denied the motion for reconsideration. Because the

petition for review was filed in the court of appeals

within 60 days of May 7, petitioner contends that the

court of appeals had jurisdiction.

2 In Dailey v. Director, OWCP, 936 F.2d 241, 242 (6th Cir.

1991), the court of appeals held that the regulatory 30-day time

limit for filing a motion for reconsideration is not jurisdictional;

thus, the BRB has the discretionary authority to extend the filing

time and consider an otherwise untimely motion on its merits.

Dailey, however, did not involve a circumstance under which an

ALJ decision became the BRB’s final decision by operation of law.

In any event, Dailey has no application here because petitioner

does not contend that the BRB abused its discretion by refusing to

consider the motion for reconsideration on its merits.

This convoluted argument fails because the BRB’s

March 16 decision cannot be characterized as a “de

facto” or sua sponte reconsideration of the March 7

automatic affirmance. As the court of appeals noted

(Pet. App. 8a n.3), the BRB panel did not view its

March 16 decision as a reconsideration order. Rather,

the panel clearly intended to issue its decision prior to

March 7 and within the one-year time frame for re-

viewing ALJ decisions. Id. at 16a-17a. Once the panel

realized that the ALJ decision had become final by

operation of law on March 7, it vacated the March 16

decision on the ground that it lacked authority to

review ALJ decisions that are pending for more than

one year. Id. at 1la-13a, 16a-17a. These facts show that

the panel had no intention of reconsidering the March 7

decision.

Moreover, it is far from clear that the BRB even

possessed authority to issue a sua sponte reconsidera-

tion order. Although the BRB’s rules allow panels to

act on reconsideration motions, 20 C.F.R. 802.407(a),

and allow any permanent BRB member to seek en banc

reconsideration sua sponte, 20 C.F.R. 802.407(c), noth-

ing in the rules allows a panel to reconsider a final

decision sua sponte.’ That omission from a detailed

procedural scheme suggests that a panel is not

authorized to reconsider a decision absent the filing of

an appropriate motion. In any event, that ambiguity

regarding the BRB’s reconsideration authority—which

neither the court of appeals nor the BRB had occasion

to address—counsels against further review of the

court of appeals’ fact-bound jurisdictional ruling.

% The government is unaware of any BRB decisions addressing

whether a panel has authority to reconsider its orders sua sponte.

2. There is no merit to petitioner’s contention (Pet.

6-9) that the decision below conflicts with Ramey v.

Stevedoring Services of America, 134 F.3d 954 (9th Cir.

1998). In Ramey, the Ninth Circuit held that a timely

filed motion for reconsideration tolls the time for filing

a petition for review in the court of appeals, even in

cases where an AL,J’s decision becomes the BRB’s final

decision by operation of law. Jd. at 959 (construing

Public Law No. 106-554’s predecessor, Public Law No.

104-134, 110 Stat. 1821). It was undisputed in Ramey

that petitioners filed timely motions for reconsideration

with the BRB. 134 F.3d at 957. Here, in contrast, the

court of appeals determined that petitioner’s motion for

reconsideration was not timely filed. Ramey is there-

fore inapposite, and the court of appeals correctly

distinguished it on that ground. Pet. App. 9a.

3. Finally, petitioner contends (Pet. 9-11) that the

decision below conflicts with various decisions from this

Court. Petitioner is incorrect.

a. Petitioner first alleges a conflict with Tennessee

Valley Authority v. Hill, 437 U.S. 153 (1978). Hill,

however, had nothing to do with jurisdiction under the

LHWCA, but instead concerned the effect of the En-

dangered Species Act of 1973, 16 U.S.C. 1531 et seq., on

the construction of a dam that threatened an en-

dangered species’ habitat. 437 U.S. at 171-172. In the

course of resolving that issue, this Court applied the

longstanding canon of statutory construction dis-

favoring implied repeals of statutes by appropriations

acts. Id. at 189-190. Petitioner argues that the court of

appeals violated that principle by construing Public

Law No. 106-554 as impliedly repealing the regulations

that govern reconsideration of BRB decisions.

Petitioner misconstrues the decision below. The

court of appeals did not suggest that Public Law No.

106-554 repealed the BRB’s regulations governing re-

consideration of its own decisions. Instead, the court

properly concluded, based upon Public Law No. 106-

554’s plain language, that the BRB’s March 16 order

had no legal effect because the ALJ’s decision had

become final on March 7. Pet. App. 8a. That conclusion

was consistent with appellate decisions construing

Public Law No. 106-554’s predecessor. See Burton v.

Stevedoring Servs. of Am., 196 F.3d 1070, 1072-1074

(9th Cir. 1999) (BRB decision remanding matter to ALJ

was a “nullity” where BRB issued the decision outside

Public Law No. 104-134’s prescribed time frame); Di-

rector, OWCP v. Sun Ship, Inc., 150 F.3d 288, 291-292

(3d Cir. 1998) (same). No conflict with Hill exists, and

consequently further review is not warranted.

b. Petitioner similarly errs in contending (Pet. 10)

that the decision below conflicts with ICC v. Brother-

hood of Locomotive Engineers, 482 U.S. 270 (1987), and

Bowman v. Loperena, 311 U.S. 262 (1940). Both cases

are inapposite.

Locomotive Engineers stands for the proposition

that, when an administrative tribunal reopens a case

and issues a new decision upon reconsideration of a

previously entered order, the new decision is subject to

review on its merits. 482 U.S. at 278. That proposition

does not apply here because the BRB did not reopen

the case and issue a new decision after the ALJ decision

was rendered final on March 7. Although the BRB

panel did issue a decision on March 16 purporting to

reverse the ALJ’s decision, it promptly vacated that

March 16 decision once it realized that the ALJ’s

decision had been rendered final by operation of law.

Pet. App. 16a-17a. Thus, the BRB’s March 16 decision

did not “reopen” the case in the sense contemplated by

the Court in Locomotive Engineers.

In Bowman, the Court applied the rule that, when a

lower court entertains an untimely petition for re-

hearing on its merits, the time for filing an appeal does

not begin to run until the court rules on the rehearing

petition. Bowman, 311 U.S. at 266 (“where the court

allows the filing and, after considering the merits,

denies the petition, the judgment of the court as origi-

nally entered does not become final until such denial,

and the time for appeal runs from the date thereof”);

see Director, OWCP v. Hileman, 897 F.2d 1277, 1279

(4th Cir. 1990) (holding that the rule in Bowman applies

to BRB proceedings). That rule has no application in

this case because the BRB did not entertain petitioner’s

motion for reconsideration on its merits; rather, it found

that it lacked authority to do so. Pet. App. 13a. Thus,

there is no conflict with Bowman, and further review is

not warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.