Director, Office of Workers' Compensation Programs v. Sun Ship, Inc.

Decision Date29 July 1998
Citation150 F.3d 288
PartiesDIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, Petitioner v. SUN SHIP, INC. (Gertrude Ehrentraut, Claimant) NO. 96-3648
CourtU.S. Court of Appeals — Third Circuit

J. Davitt Mcateer, Acting Solicitor of Labor, Allen H. Feldman, Associate Solicitor for Labor, Special Appellate and Supreme Court Litigation, Joshua T. Gillelan, II, Judith D. Heimlich (Argued), U.S. Department of Labor, Washington, DC, for Petitioner.

John P. Dogum (Argued), Swartz, Campbell & Detweiler, Philadelphia, PA, for Respondent.

Before: COWEN, McKEE & ROSENN, Circuit Judges

OPINION OF THE COURT

McKEE, Circuit Judge

We are asked to determine if the delay of the Board of Revision and Review in reviewing a decision of an administrative law judge deprived the Board of jurisdiction under the facts of this appeal. We hold that it did, and that the Board's delay caused the ALJ's decision to become a final order that we now have jurisdiction to review. We further hold that the ALJ erred in deciding that a maritime employer is entitled to relief from the Special Fund established under § 8(f) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq. ("LHWCA") ("the Act"), where the employee's disability was not manifest during the time of his employment. Accordingly, we will reverse the decision of the ALJ.

I. BACKGROUND

Raymound Ehrentraut worked for Sun Ship, Inc. from 1938 until his retirement in 1981. Nine years after he retired he was diagnosed with asbestosis resulting from his years of work-related asbestos exposure while at Sun Ship. The same month he was diagnosed, doctors discovered he also had a work-related pulmonary malignancy. Ehrentraut's asbestosis was a "pre-existing condition" that had made diagnosis of the malignancy more difficult. Ehrentraut eventually succumbed to the cancer and died on July 15, 1990. Thereafter, his wife applied to Sun Ship for death benefits under the Longshore and Harbor Workers' Compensation Act. 1

Sun Ship initially paid the requested benefits. However, in 1992, after paying benefits for 104 weeks, Sun Ship requested the Office of Workers' Compensation Programs to provide the payments from the Special Fund established under section 8(f) of the Act, 33 U.S.C. § 908(f). The Director of the Office of Workers' Compensation Programs denied Sun Ship's application. The Director concluded that Sun Ship was not eligible for relief from the Special Fund because Ehrentraut's pre-existing injury was not manifest while he worked for Sun Ship. However, the case was referred to an administrative law judge who overruled the Director's decision. On April 15, 1993, the ALJ issued an opinion declaring that Sun Ship was entitled to section 8(f) relief under the 1984 amendments to the Act because Ehrentraut's pre-existing condition was a long-latency disease diagnosed after Ehrentraut's retirement. See ALJ at 3.

The Director filed a timely appeal to the Benefits Review Board on May 13, 1993. However, the Board failed to adjudicate the appeal for more than three years. Finally, on September 12, 1996, the Board issued an order in which it reversed the ALJ's ruling and remanded the case back to the ALJ for further proceedings. The Director filed a Petition for Review seeking a judicial determination that the ALJ's order had become the final decision of the Board because the Board had not acted within the required time frame. The Director's petition asks us to reverse the ALJ's decision and hold that Sun Ship is not entitled to shift the responsibility for these benefits to the Special Fund.

II. STANDARD OF REVIEW

We exercise plenary review over both the jurisdictional issue and the substantive issue raised by this appeal because both present questions of law. Director, Office of Workers' Compensation v. Barnes and Tucker Co., 969 F.2d 1524, 1527 (3d Cir.1992); cf. Sea-Land Service, Inc. v. Rock, 953 F.2d 56, 59 (3d Cir.1992). Before addressing the substance of the Director's petition, we must first resolve the issue of our jurisdiction.

For the reasons that follow, we conclude that we have jurisdiction to review the ALJ's decision as the Board's final order. We hold that the ALJ erred in concluding that Sun Ship is entitled to shift liability to the Special Fund that Congress created under section 8(f) of the Act.

III. JURISDICTION

Ordinarily, the Board's remand to the ALJ would be an interlocutory order and we would therefore have no jurisdiction to review it. However, the Department of Labor Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321 (the "Appropriations Act") provides that any ALJ decision in a LHWCA case that has been

pending a review by the Benefits Review Board for more than one year shall, if not acted upon by the Board before September 12, 1996, be considered affirmed by the Benefits Review Board on that date, and shall be considered the final order of the Board for purposes of obtaining a review in the United States courts of appeals.

100 Stat. 1321-219 (emphasis added). Here, the Board issued its order on September 12, 1996. Sun Ship argues that is consistent with the requirements of the Appropriations Act. The Director responds that "before" does not mean "on" and that the Board's September 12, 1996 decision is therefore a nullity.

It is axiomatic that our interpretation of any statute begins with the language of the statute. Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). If the language is ambiguous, we look to legislative history to determine congressional intent. Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 642, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990). In addition, we will sometimes defer to a permissible interpretation of a statute by an appropriate agency. However, we will do so only when the statute does not directly speak to the issue and congressional intent cannot be gleaned from the text of the statute, or its legislative history. Only then, should the "question for the court [become] whether the agency's answer is based on a permissible construction of the statute." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). When legislation speaks directly to a particular issue, it is that congressional expression, not a contradictory agency interpretation, which controls. See, e.g., Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981).

Here, it is clear that the Board's decision is void if it did not comply with the Appropriations Act. We would then have jurisdiction under the Appropriations Act to review the ALJ's decision. However, Sun Ship argues that the Board obviously interpreted the Appropriations Act as allowing it to issue orders on September 12, 1996 because the Board issued several opinions on that day that had been pending for over a year. Sun Ship then relies upon Chevron to argue that we must defer to the Board's interpretation. 2 However Sun Ship's position ignores the well-settled rule that we do not defer to the Board's interpretation of statutes. See Commonwealth of Pennsylvania v. United States Dep't of Health & Human Serv., 80 F.3d 796, 809 (3d Cir.1996) (citing Sharondale Corp. v. Ross, 42 F.3d 993 (6th Cir.1994)); cf. Elliot Coal Mining v. Director, Office of Workers' Compensation, 17 F.3d 616, 627-28 (3d Cir.1994). Moreover, here, the Board's interpretation is contrary to the express language of the Appropriations Act. Accordingly, we will not defer as Sun Ship urges.

Sun Ship also contends that the Appropriations Act, taken as a whole, is ambiguous, and that this "ambiguity" requires us to look beyond the plain meaning of the language to determine Congress' true intent. Sun Ship attempts to create ambiguity by referring to other provisions in the Appropriations Act that allow for action "after September 12[th]," or "beginning September 13th," rather than "before September 12th." For example, the statute provides that:

... no funds made available by this Act may be used by the Secretary of Labor after September 12, 1996 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, except as otherwise specified herein ... beginning on September 13, 1996, the Benefits Review Board shall make a decision on appeal of a decision under the [LHWCA] no later than 1 year after the date the appeal to the Benefits Review Board was filed.

110 Stat. 1321. (emphasis added).

Such language does not render the Appropriations Act either ambiguous, or contradictory. The Act did not prevent the Board from acting on all matters on September 12th. Rather, the Board was merely prohibited from acting on September 12 to decide or dispose of matters that had then been pending for a year or more. This did not prevent the Board from deciding cases on September 12, 1996 that had been pending for less than one year as of that date. Similarly, beginning on September 13, 1996, the Appropriations Act established a one year cut-off date within which the Board had to resolve cases pending before it. Neither provision requires us to interpret "before" September 12, to mean "on or before" September 12, as Sun Ship urges. When "before" is used as a preposition, it refers to "an event or act preceding in time or earlier than, or previously to, the time mentioned." Blacks Law Dictionary, 154-55 (6th ed.1990). References to "after September 12th" only address the disbursal of funds.

It is difficult to imagine how Congress could have more clearly established the Board's deadline for acting. Congress decreed that the Board must act "before September 12th." In United States v. Locke, 471 U.S. 84, 93-96, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985), the Court held that a statutory requirement to act "prior...

To continue reading

Request your trial
19 cases
  • Financial Software System v. First Union Nat. Bank, CIV.A. 99-CV-623.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 23 Noviembre 1999
    ...on other grounds as stated in, Deck v. Peter Romein's Sons, 109 F.3d 383, 388 (7th Cir.1997); Director, Off. of Workers' Comp. Programs v. Sun Ship, Inc., 150 F.3d 288, 291 (3d Cir.1998). I will consider the history and purpose of § B. History and Supreme Court Construction of § 1348. For t......
  • In re Philadelphia Newspapers, LLC
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 10 Noviembre 2009
    ...other statutory provisions in order to create an ambiguity where none would otherwise exist. See Dir., Office of Workers' Comp. Programs v. Sun Ship, Inc., 150 F.3d 288, 292 (3d Cir.1998) (finding that related statutory sections could not be used to create an ambiguity where the language wa......
  • Lopez-Flores v. Resolution Trust Corp., 99-CV-73444.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • 20 Abril 2000
    ...480 U.S. 421, 446, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)); Director, Office of Workers' Comp. Programs, United States Dept. of Labor v. Sun Ship, Inc., 150 F.3d 288, 291 (3d Cir.1998) (Deference is warranted "only when the statute does not directly speak to the issue and congressional inten......
  • Hodges v. Shalala, 3:00-2048-17.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 24 Octubre 2000
    ...480 U.S. 421, 446, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)); Director, Office of Workers' Comp. Programs, United States Dept. of Labor v. Sun Ship, Inc., 150 F.3d 288, 291 (3d Cir.1998) (additional inquiry is warranted "only when the statute does not directly speak to the issue and congressio......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT