Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor v. Bath Iron Works Corp.

• Decision Date: 07 June 1988
• Docket Number: No. 87-1920,87-1920
• Citation: 853 F.2d 11
• Parties: DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, (Ethel H. Cain, Claimant), Petitioner, v. BATH IRON WORKS CORPORATION and Commercial Union Insurance Company, Respondents. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 11

853 F.2d 11

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR, (Ethel H. Cain, Claimant), Petitioner, v. BATH IRON WORKS CORPORATION and Commercial Union Insurance

Company, Respondents.

No. 87-1920.

United States Court of Appeals, First Circuit.

Heard June 7, 1988.

Decided July 28, 1988.

Joshua T. Gillelan II, Office of the Solicitor, with whom George R. Salem, Sol. of Labor, Donald S. Shire, Associate Sol., and J. Michael O'Neill, Washington, D.C., Counsel for Longshore, were on brief for petitioner.

Stephen Hessert with whom Robert W. Bower, Jr., and Norman, Hanson & DeTroy, Portland, Me., were on brief for respondents.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

This proceeding arises under the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. Secs. 901-950 (1982 & Supp. II 1984) ("LHWCA" or "the Act"), and more specifically, under that section of the Act which authorizes the courts of appeal to review "final order[s]" of the Benefits Review Board ("Board"). See id. at Sec. 921(c). ¹ But the instant petition, like a fish that has not yet grown to the legal minimum, has been prematurely netted in appellate waters. We explain briefly why we throw this undersized specimen overboard.

I.

We note at the outset that there are two respondents, Bath Iron Works, a Maine corporation, and Commercial Union Insurance Companies, Bath's insurer. Inasmuch as the interests of the two are virtually identical, we will refer to them interchangeably. In March 1971, during the currency of the policy, one Robert Cain became permanently and totally disabled. (Cain, a pipe coverer at the Iron Works, had contracted an incapacitating lung disease in the course of his employment.) Commercial Union voluntarily initiated disability payments under the Act.

Cain's average weekly wage (AWW) when injured was substantial, but his compensation payments were limited by the statutory ceiling to $70 per week. See Pub.L. No. 87-87, 75 Stat. 203 (1961). On November 26, 1972, however, the LHWCA Amendments of 1972, Pub.L. No. 92-576, 86 Stat. 1251 (Oct. 27, 1972), took effect. Thereunder, Cain's disability payments were augmented (half of the supplement being payable from federal appropriations and half from an industry-financed "special fund" created by the Amendments, see 33 U.S.C. Sec. 944 (1982)), ² so as to bring weekly benefits up to two-thirds of the national AWW. See 33 U.S.C. Sec. 910(h)(1) (1982). The federal Office of Workers' Compensation Programs ("OWCP") directed Commercial Union to make the initial adjustment contemplated by the statute, id., and to hike Cain's benefits annually to keep pace with inflationary increases in the national AWW. See 33 U.S.C. Sec. 910(f) (1982). Pursuant to instructions received from OWCP, the insurer paid both the one-time initial adjustment and the yearly cost-of-living adjustments, and was periodically reimbursed from federal sources for all such sums. See 33 U.S.C. Sec. 910(h)(2); 20 C.F.R. Sec. 702.145(a).

Matters proceeded swimmingly during Cain's lifetime and, for a time, after his demise in February 1975. Although no written payment order was issued at that time, the petitioner evidently told the insurer, in substance, that, because the 1972 LHWCA Amendments increased the maximum death benefit which had been in effect when Cain became disabled, federal sources would be responsible for the difference between it and the death benefit in effect in 1975. The insurer then began paying Cain's widow at the higher (date-of-death) rate and sought reimbursement for the supplementary portion of the payments (including both the initial adjustment, 33 U.S.C. Sec. 910(h), and the annual adjustments, 33 U.S.C. Sec. 910(f)). OWCP routinely obliged for over six years.

In September 1981, the skein was suddenly snapped. Petitioner asserted--apparently for the first time--that Commercial Union should bear the brunt of paying benefits at the 1975 rate, and was not entitled to limit its net liability to the pre-1972 rate. In fine, petitioner had reversed its field and had come belatedly to contend that the law in effect at the time of death governed an employer's responsibility for funding death benefits where, as in this case, the injury preceded the 1972 LHWCA Amendments, but the death came afterward. If this were so, then federal sources could be tapped only to reimburse annual cost-of-living adjustments in a case like Cain's, not to reimburse the employer for any part of the date-of-death benefit rate.

The dispute ripened into litigation. It was referred to an administrative law judge (ALJ), see 33 U.S.C. Sec. 919(c), (d), who sustained the employer's position that federal sources, under 33 U.S.C. Sec. 910(h)(2), were responsible not only for subsidizing annual adjustments under Sec. 910(h)(3), but also for subsidizing the initial adjustment, that is, providing the extra funds necessary to bring the date-of-injury rate up to the date-of-death rate. OWCP appealed to the Board, see 33 U.S.C. Sec. 921(b)(3), which affirmed in pertinent part, but vacated the actual adjustments, seeing a need for refiguring. Cain v. Bath Iron Works Corp. BRB No. 84-761A (Aug. 31, 1987). The Board concluded its discussion by remanding the case to the ALJ for "further proceedings consistent with [its] opinion." OWCP then petitioned for judicial review.

II.

The legal conundrum which underlies this proceeding is an intriguing one, ³ yet we must pause before coming to grips with it. Respondents urge that we lack jurisdiction to review the Board's order in the present posture of the case. If that contention is well founded, we can venture no further. No matter how tantalizing a problem may be, a federal appellate court cannot scratch intellectual itches unless it has jurisdiction to reach them. And in this instance, we are persuaded that jurisdictional constraints foreclose us from inquiring, here and now, into the merits.

This petition arises under, and depends for its jurisdictional nexus upon, 33 U.S.C. Sec. 921(c), quoted supra note 1. The availability of judicial review thereunder is limited to "final order[s]" of the Board. See id. This requirement mirrors exactly the concerns which underbrace 28 U.S.C. Sec. 1291, the statute which, in general, restricts appellate review of interlocutory orders. See National Steel and Shipbuilding Co. v. Director, OWCP, 626 F.2d 106, 107-08 (9th Cir.1980); Newport News Shipbuilding and Dry Dock Co. v. Director, OWCP, 590 F.2d 1267, 1268 (4th Cir.1978) (per curiam). Avoidance of the mischief of multiple appeals in a single litigation ranks high on the list; so does, in a case such as this, the desirability of minimizing disruption of the administrative process. In a slightly different setting, we have recently warned of the dangers of leaving "the way clear for the four horsemen of too easily available piecemeal appellate review: congestion, duplication, delay, and added expense." Spiegel v. Trustees of Tufts College, 843 F.2d 38, 46 (1st Cir.1988). In our judgment, to construe section 921(c) as conferring jurisdiction to hear an appeal from a nonfinal remand order would, on the face of things, give the four horsemen unbridled license to roam and countervail the prudential policies on which the finality principle rests. We explain briefly.

In general, "it has been a marked characteristic of the federal judicial system not to permit an appeal until a litigation has been concluded in the court of first instance." Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 123, 65 S.Ct. 1475, 1478, 89 L.Ed. 2092 (1945). Thus, an order or judgment is usually considered "final" (hence, appealable) only when it "resolv[es] the contested matter, leaving nothing to be done except execution of the judgment." United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 14 (1st Cir.1988). See also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981); Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed.2d 911 (1945). ⁴ "A corollary rule is that an order remanding a matter to an administrative agency for further findings and proceedings is not final." Cabot Corp. v. United States, 788 F.2d 1539, 1542 (Fed.Cir.1986); accord Memorial Hosp. System v. Heckler, 769 F.2d 1043, 1044 (5th Cir.1985); Pauls v. Secretary of the Air Force, 457 F.2d 294, 297-98 (1st Cir.1972); United Transportation Union v. Illinois Central R. Co., 433 F.2d 566, 568 (7th Cir.1970), cert. denied, 402 U.S. 915, 91 S.Ct. 1374, 28 L.Ed.2d 661 (1971). By logical extension, this "corollary rule" would seem apposite here. Accord Cooper Stevedoring Co. v. Director, OWCP, 826 F.2d 1011, 1014 (11th Cir.1987) (per curiam) ("remand of a LHWCA claim to an ALJ for further findings of fact is not an appealable order"); United Fruit Co. v. Director, OWCP, 546 F.2d 1224, 1225 (5th Cir.1977) (similar). See also Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970) (under Administrative Procedure Act, a relevant consideration in determining finality is whether "the process of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication"). Because the Board did not purport definitively to resolve the controversy between the parties, but instead remanded to the ALJ for further proceedings, the present order did not close out the case. No legal consequences flowed directly and inexorably from it. To the contrary, the order contemplated that something further needed to be done.

That "something," OWCP tells us, is insubstantial. The usual rule should not apply in this case because remand, though ordered, involves only "a purely ministerial arithmetic function." Petitioner's...