723 F.2d 399 (5th Cir. 1984), 81-4308, Newpark Shipbuilding & Repair, Inc. v. Roundtree

Docket Nº:81-4308.
Citation:723 F.2d 399
Party Name:NEWPARK SHIPBUILDING & REPAIR, INCORPORATED and American Home Assurance Company, Petitioners, v. James P. ROUNDTREE and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
Case Date:January 23, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 399

723 F.2d 399 (5th Cir. 1984)


Home Assurance Company, Petitioners,


James P. ROUNDTREE and Director, Office of Workers'

Compensation Programs, United States Department of

Labor, Respondents.

No. 81-4308.

United States Court of Appeals, Fifth Circuit

January 23, 1984

E.D. Vickery, Houston, Tex., for petitioners.

Stephen Vaughan, Houston, Tex., for Roundtree.

Laurie M. Streeter, Assoc. Sol., Mark C. Walters, Marianne Demetral Smith, Joshua T. Gillelan, II, U.S. Dept. of Labor, Washington, D.C., for respondents.

Petition for Review of an Order of the Benefits Review Board.

Page 400


TATE, Circuit Judge:

The employer ("Newpark") filed a petition in this court to review an order of the Benefits Review Board with regard to the claim of its disabled former employee Roundtree for benefits under the Longshoremen's and Harbor Workers' Compensation Act. 33 U.S.C. Secs. 901 et seq. The Board's order determined the method by which the claimant Roundtree's periodic compensation rate was to be calculated, but it also remanded the case to the administrative law judge for further findings and proceedings. A motion to dismiss the appeal as being from a non-final administrative determination was denied by a divided panel, 698 F.2d 743 (5th Cir.1983), which proceeded to determine a substantive issue on its merits and likewise remanded for further proceedings. We granted en banc rehearing, 706 F.2d 502 (1983), primarily to determine whether the Board's determination was a reviewable "final order", a statutory prerequisite under the Act for judicial review of the Board's rulings. Sec. 921(c). 1

Contrary to the panel, we dismiss the present petition for review. Applying the well-settled general rule that a judgment or order is not final unless it ends the litigation on the merits and leaves nothing for the trier to do but execute the judgment, we hold that the present Board order--which determined a central issue of liability, but which nevertheless also remanded the administrative proceedings to the administrative law judge for further findings--is not a "final order", Sec. 921(c), so as to be statutorily subject to judicial review at this time.


We will detail the facts somewhat more fully below. For present purposes, we note only that the Board's order, which determined the method of computing compensation and remanded the proceedings for further findings, was concededly not final in any "technical" sense. The panel majority, however, found it to be reviewable at this time on a concept of pragmatic finality, since upon the court panel deciding a central issue (and reversing the Board as to it), the factual record as to this issue was now complete, although some unresolved collateral issues also remained for decision by the administrative proceedings upon remand. 698 F.2d at 747 & n. 2, 748 & n. 3.

The issue thus drawn is whether the Board's order, under such circumstances, should be deemed a "final order" and thus subject to judicial review under Sec. 921(c). The required finality for reviewability of an order of the Board follows, for the same reasons of policy, the contours of the finality-requirement under 28 U.S.C. Sec. 1291 for appealability of decisions of the district courts. Simms v. Valley Line Company, 709 F.2d 409, 413 (5th Cir.1983); Director, Office of Workers' Compensation Programs v. Brodka, 643 F.2d 159, 161 (3d Cir.1981); National Steel and Shipbuilding Company v. Director, Office of Workers' Compensation Programs, 626 F.2d 106, 107-08 (9th Cir.1980); Newport News Shipbuilding and Dry Dock Company v. Director, Office of Workers' Compensation Programs, 590 F.2d 1267, 1268 (4th Cir.1978) (all four decisions dismissing petitions of review because of non-finality of the Board's order).

Page 401

In Firestone Tire & Rubber Company v. Risjord, 449 U.S. 368, 373-74, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981), the Supreme Court has recently restated the general test for finality as being a decision "that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945).

This finality rule is designed to avoid piecemeal trial and appellate litigation and the delays and costs of multiple appeals upon both parties and courts, as well as to provide a clear test so that needless precautionary appeals need not be taken lest substantive rights be lost. "Restricting appellate review to 'final decisions' prevents the debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical effect, a single controversy." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974). "This insistence on finality and prohibition of piecemeal review discourage undue litigiousness and leaden-footed administration of justice * * *." DiBella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 656, 7 L.Ed.2d 614 (1962). "Thereby is avoided the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment." Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940), quoted with approval in Firestone, supra, 449 U.S. at 174, 101 S.Ct. at 673. See also 15 Wright, Miller, and Cooper, Federal Practice and Procedure, Secs. 3907, 3909 (1976).

Nevertheless, the Court has recognized a small number of narrow exceptions to this general rule that appealable finality is accorded only to a judgment or order that completely terminates the litigation below. 2 Under these exceptions, the requirement of finality is "given a 'practical rather than a technical construction' ". Eisen, supra, 417 U.S. at 171, 94 S.Ct. at 2149. The exceptions arise from considering "the competing considerations underlying all questions of finality--'the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.' " Id. See 15 Wright, Miller, and Cooper, supra, Sec. 3907. Both the petitioner Newpark and the panel majority, in asserting the reviewable finality of the present Board order, essentially rely upon an exception of pragmatic finality that was recognized by Gillespie v. United States Steel Corporation, 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964).

We will not here detail the facts nor attempt to analyze the several strands of reasoning by which Gillespie, because of the competing considerations, held to be appealable a technically non-final order, save to observe that none of Gillespie's exceptional reasons are apparent here. As recently summarized by the Court,

In Gillespie, the Court upheld an exercise of appellate jurisdiction of what it considered a marginally final order that disposed of an unsettled issue of national significance because review of that issue unquestionably "implemented the same policy Congress sought to promote in Sec. 1292(b) [permitting discretionary reviewing of interlocutory rulings]," id., at 154, 85 S.Ct. at 312, and the arguable finality issue had not been presented to this Court [after certiorari was granted] until argument on the merits, thereby ensuring that none of the policies of judicial economy served by the finality requirement would be achieved were the case sent back with the important issue undecided.... If Gillespie were extended

Page 402

beyond the unique facts of that case, Sec. 1291 [the finality requirement] would be stripped of all significance.

Cooper & Lybrand, supra, 437 U.S. at 477 n. 30, 98 S.Ct. at 2462.


Newpark contends, however, that despite this limited construction of Gillespie recently accorded by the Court itself, that decision's continued viability for application to the present Board order is demonstrated by American Export Lines, Inc. v. Alvez, 444 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980). There, citing Gillespie, the Court did not reject review of an interlocutory amendment ruling in a state court action as non-final. (The amendment in the state court action, affirmed by the state's high court, had permitted a harborworker's wife to assert a claim under general maritime law for loss of her injured husband's society.) The issue before the Court in Alvez, however, is distinguishable from that before us now.

The issue before us concerns the concept of finality under 33 U.S.C. Sec. 921 and 28 U.S.C. Sec. 1291, which afford an aggrieved party review in the court of appeal as of right. In Alvez, the issue arose under 28 U.S.C. Sec. 1257(3), where a "final" judgment of a state's highest court is reviewable by discretionary grant of certiorari where a right is claimed under federal law.

In Alvez, after the court had granted certiorari, it sua sponte noted the jurisdictional issue, observing that "were the case in the posture it stood when petition for certiorari was granted, we might well determine that the judgment lacked sufficient characteristics of finality to warrant an assertion of our appellate jurisdiction." 446 U.S. at 277, 100 S.Ct. at 1675. However, after certiorari had been granted, the case was tried in the state trial court and the plaintiffs prevailed, with "no federal question, except that which we are now asked to resolve," remaining in the litigation. 446 U.S. at 277-78, 100 S.Ct. at 1675-76. The Court noted that " 'the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future...

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