Young & Company v. Shea

• Decision Date: 09 December 1968
• Docket Number: No. 24249,25007.,24249
• Citation: 404 F.2d 1059
• Parties: YOUNG & COMPANY and Texas Employers Insurance Association, Appellants, v. R. J. SHEA, Deputy Commissioner of Labor, et al., Appellees. Bertram A. WATSON and R. J. Shea, Deputy Commissioner, Appellants, v. GULF STEVEDORE CORPORATION et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

404 F.2d 1059 (1968)

YOUNG & COMPANY and Texas Employers Insurance Association, Appellants, v. R. J. SHEA, Deputy Commissioner of Labor, et al., Appellees.

Bertram A. WATSON and R. J. Shea, Deputy Commissioner, Appellants, v. GULF STEVEDORE CORPORATION et al., Appellees.

Nos. 24249, 25007.

United States Court of Appeals Fifth Circuit.

December 9, 1968.

E. D. Vickery, Gus Schill, Jr., Houston, Tex., for Young & Co. and others.

W. Jiles Roberts, Houston, Tex., James R. Cough, Asst. U. S. Atty., Houston, Tex., Alfred H. Myers, Atty., Dept. of Justice, Washington, D. C., for R. J. Shea and others.

James R. Gough, Asst. U. S. Atty., Houston, Tex., Morton Hollander, Leonard Schaitman, Attys., Dept. of Justice, Washington, D. C., for Bertram A. Watson and others.

Carl O. Bue, Jr., Houston, Tex., for Gulf Stevedore Corp.

Before JONES, WISDOM and THORNBERRY, Circuit Judges, as to Young & Company and Texas Employers Insurance Association v. R. J. Shea, Deputy Commissioner of Labor, et al.

Before COLEMAN and GODBOLD, Circuit Judges, and RUBIN, District Judge, as to Bertram W. Watson and R. J. Shea, Deputy Commissioner v. Gulf Stevedore Corporation, et al.

ON JOINT PETITION FOR REHEARING EN BANC

JOINT PER CURIAM:

The Petition for Rehearing en banc filed in both of these cases is DENIED, and no member of the panel nor judge in active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petitions for Rehearing En Banc are DENIED.

However, because of the assertion of counsel that "the opinions in these two cases are directly in conflict" and are both contrary to the decision of another panel of this circuit in Goins v. Noble Drilling Corporation, 5 Cir., 397 F.2d 392, (No. 24,928, July 10, 1968) we consider it appropriate to add a few words to prevent others from drawing the same erroneous conclusions.

Watson and Goins involved the same issue: the scope of judicial review of the Deputy Commissioner's findings of fact under the Longshoremen's and Harbor Workers' Compensation Act. In both cases an identical standard was applied. In Goins it was stated as follows: "`The findings are to be accepted unless they are unsupported by substantial evidence on the record considered as a whole.'" Goins v. Noble Drilling Corporation, 5 Cir., 397 F.2d at page 394, (No. 24,928). In Watson, the criterion was put in almost the same words: "The settled formula is that the decision of the administrative agency should be accepted unless there is no substantial evidence on the record as a whole to support it." Watson v. Gulf Stevedore Corp., 5 Cir., No. 25,007, 400 F.2d 649, at page 651. The sole difference between these cases is that in Goins the record lacked substantial evidence to support the findings of the Deputy Commissioner while in Watson the evidence was presented and it was substantial.

The scope of judicial review of the Deputy Commissioner's findings under the Longshoremen's and Harbor Workers' Act was repeatedly held, prior to the adoption of the Administrative Procedure Act, to be the same as the later one set forth as a general standard in the A.P.A.¹ See, for example, our 1943 opinion in Luckenbach Gulf S. S. Co. v. Henderson, 133 F.2d 305 and such decisions of other courts as Voehl v. Indemnity Ins. Co., 1933, 288 U.S. 162, 53 S. Ct. 380, 77 L.Ed. 676; Lowe v. Central R. Co. of New Jersey, 1940, 3 Cir. 113 F.2d 413. And this was the standard applied by the United States Supreme Court in a case to which the prior law was applicable even though it was decided after adoption of the Administrative Procedure Act. Cardillo v. Liberty Mut. Ins. Co., 1947, 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028.

Hence, as we have previously said, the Administrative Procedure Act did not change the scope of judicial review of the Deputy Commissioners findings. The substantial evidence rule, properly applied, as we think it was in Watson as well as in Goins, fully effects the intention of Congress and amply safeguards the rights of litigants.

In Young the issue was entirely different: the question was whether the injured worker was precluded from recovery before the Commissioner by a collateral estoppel resulting from an earlier jury determination adverse to him. Concluding that the doctrine of collateral estoppel was inapplicable, the opinion in Young set forth expressly several reasons for this result. One of these was, "The standard of persuasion is less before the Commissioner than before the court." Young & Co. v....