Aetna Cas. & Sur. Co. v. Director, Office of Worker's Compensation Programs, U.S. Dept. of Labor, 95-60578

• Decision Date: 22 October 1996
• Docket Number: No. 95-60578,95-60578
• Citation: 97 F.3d 815
• Parties: AETNA CASUALTY & SURETY CO., Petitioner, v. DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR; Eva Jourdan, (Widow of E. Elliot Jourdan); Equitable Equipment Company, A Subsidiary of Trinity Industries, Incorporated; Fidelity & Casualty Company of New York; Wausau Insurance Company, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 815

97 F.3d 815

1998 A.M.C. 599

AETNA CASUALTY & SURETY CO., Petitioner, v. DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS, U.S.

DEPARTMENT OF LABOR; Eva Jourdan, (Widow of E. Elliot

Jourdan); Equitable Equipment Company, A Subsidiary of

Trinity Industries, Incorporated; Fidelity & Casualty

Company of New York; Wausau Insurance Company, Respondents.

No. 95-60578.

United States Court of Appeals, Fifth Circuit.

Oct. 22, 1996.

Timothy M. Waller, Sr., Robert J. May, Lenfant & Associates, Metairie, LA, for petitioner.

Joshua T. Gillelan, II, Washington, DC, Thomas O. Shepherd, Jr., Clerk, Benefits Review Board, Washington, DC, Carol DeDeo, Assoc. Solicitor, United States Department of Labor, Dir., Office of Workers Comp. Programs, Washington, DC, for Director, Office of Worker's Compensation Programs, U.S. Department of Labor, respondent.

Thomas S. Derveloy, Jr., Covington, LA, for Eva Jourdan, (Widow of E. Elliot Jourdan), respondent.

Peter L. Hilbert, Jr., Darnell S. Bludworth, McGlinchey, Stafford & Lang, New Orleans, LA, for Equitable Equipment Co., respondent.

James R. Logan, IV, John M. Sartin, Jr., Cornelius, Sartin & Murphy, New Orleans, LA, for Fidelity & Casualty Company of New York, respondent.

Dean A. Sutherland, New Orleans, LA, for Wausau Insurance Company, respondent.

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

Before JONES and WIENER, Circuit Judges, and FURGESON, ^* District Judge.

WIENER, Circuit Judge:

This appeal presents narrow procedural questions concerning the timeliness of appeals to the Benefits Review Board (BRB) under regulations promulgated pursuant to the Longshore and Harbor Workers' Compensation Act (LHWCA). ¹ More particularly, we are asked to determine whether the BRB properly dismissed an insurer's appeal from a decision of an Administrative Law Judge (ALJ) as premature because another party had filed a timely Motion for Reconsideration of the ALJ's decision after the filing of the insurer's notice of appeal.

I FACTS AND PROCEEDINGS

This appeal arises from the death of E. Eliot Jourdan, a former employee of the Equitable Equipment Company, now a part of Trinity Marine Group, a division of Trinity Industries, Inc. (Equitable). Jourdan was employed at Equitable from 1940 until his retirement in 1973, and died on June 6, 1985. An autopsy revealed that Jourdan's death was caused, at least in part, by asbestos related conditions sustained during the course and scope of his employment with Equitable. In February of 1986, Jourdan's widow, Eva Q. Jourdan (Claimant), filed a formal claim for death benefits under the LHWCA.

Employers Insurance of Wausau (Wausau), Equitable's worker's compensation carrier at the time of Mr. Jourdan's retirement, was placed on notice of the claim and defended both itself and Equitable at a hearing held before an ALJ on June 26, 1987. In a Decision and Order dated March 22, 1988, the ALJ found that Claimant was entitled to death benefits, medical expenses, and funeral expenses, yet ruled that Wausau was not the responsible carrier because no evidence had been introduced to show that Jourdan had been exposed to asbestos subsequent to the date that Wausau's coverage began. As the ALJ determined neither the date of Jourdan's last exposure to asbestos nor the responsible insurance carrier, Equitable filed a Petition for Modification seeking findings of fact on these two issues. At this point, Petitioner-Appellant Aetna Casualty & Surety Company of New York (Aetna) and Fidelity & Casualty Company of New York were made parties to the proceeding. After a complex series of maneuvers unrelated to this appeal, during which Claimant's case wound its way from the Department of Labor, to the BRB, to this court, and finally back to a new ALJ, a hearing was conducted by the new ALJ on January 14, 1994, on Equitable's Petition for Modification. From this date forward, the chronology of events accelerates and becomes paramount to the issues we face on appeal, to-wit:

August 16, 1994: The new ALJ's Decision and Order--finding, inter alia, Aetna to be the responsible worker's compensation carrier--was filed and thereafter served on the parties.

August 22, 1994: The Director of the Department of Labor's Office of Worker's Compensation Programs (OWCP) filed a Motion for Reconsideration in Part, contending that the new ALJ erroneously ruled that Equitable was discharged from liability for current and future benefits.

September 13, 1994: Aetna mailed a Notice of Appeal to the BRB and sent copies to a number of officials on subsequent days.

September 14, 1994: Aetna's original Notice of Appeal was received and stamped by the BRB.

September 27, 1994: A copy of Equitable's Notice of Appeal, intended for Marilyn C. Felker, the District Director for the Seventh Compensation District, whose office is located in New Orleans, Louisiana, was erroneously addressed to her at the Washington, D.C. office of the BRB where it was received and stamped by the BRB. (Felker's copy was post-marked September 19, 1994.)

September 28, 1994: The District Director filed and mailed the new ALJ's Decision and Order on Motion for Reconsideration, originally dated September 20, 1994, granting the Director's motion and specifically amending his prior Decision and Order to provide that Equitable was not discharged from liability November 21, 1994: Equitable filed a motion to have the BRB dismiss Aetna's September 14th appeal as premature pursuant to 20 C.F.R. § 802.206(f).

for current and future benefits due the Claimant. Also on this date, Equitable filed a cross-appeal by mail, which was received by the BRB on October 2, 1994.

March 24, 1995: By a majority vote, the BRB dismissed Aetna's appeal as having been prematurely filed, relying on 20 C.F.R. § 802.206(f) and the reasoning of this court's decision in Tideland Welding Service v. Sawyer. ²

Subsequent to this dismissal, Aetna moved for reconsideration and reconsideration en banc, but in an order dated July 21, 1995 the BRB adhered to its decision. Aetna now seeks our review under authority of LHWCA § 21(c). ³

II ANALYSIS

Our review in appeals from LHWCA decisions of the BRB is typically limited to "considering errors of law and making certain that the Board has adhered to its statutory standard of review for factual determinations." ⁴ The questions presented by the instant appeal, however, exclusively comprise issues of construction of the regulations governing appellate proceedings before the BRB under the LHWCA, not construction of the Federal Rules of Appellate Procedure (FRAP). Thus, even though the BRB's interpretation of the LHWCA would normally merit no special deference, the BRB's interpretation of its own rules and regulations do deserve judicial deference so long as the BRB remains consistent and does not deviate from them. ⁵

The statute governing appeals to the BRB, LHWCA § 21(a), provides a thirty day period during which appeals may be filed before a decision of an ALJ or deputy commissioner will be considered final. ⁶ As this statute imposes a jurisdictional requirement, any untimely appeal must be summarily dismissed, and no equitable relief is permitted. ⁷ Pursuant to LHWCA section 21(a), the BRB has promulgated regulations detailing the effect of a motion for ALJ reconsideration on the time for filing an appeal to the BRB.

Initially, 20 C.F.R. § 802.206(a) directs that "[a] timely motion for reconsideration ... shall suspend the running of the time for filing a notice of appeal." More importantly, 20 C.F.R. § 802.206(f) states:

If a timely motion for reconsideration of a decision or order of an administrative law judge or deputy commissioner is filed, any appeal to the Board, whether filed prior to or subsequent to the filing of the timely motion for reconsideration, shall be dismissed without prejudice as premature. Following decision by the administrative law judge or deputy commissioner pursuant to either (d) or (e) of this section, a new notice of appeal shall be filed with the Clerk of the Board by any party who wishes to appeal. During the pendency of an appeal to the Board, any party having knowledge that a motion for reconsideration of a decision or order of an administrative law judge or deputy commissioner has been filed shall notify the Board of such filing.

20 C.F.R. § 802.206(d), in turn, provides:

If a motion for reconsideration is granted, the full time for filing an appeal commences Finally, 20 C.F.R. § 802.205(a) provides that:

on the date the subsequent decision or order on reconsideration is filed as provided in § 802.205.

A notice of appeal, other than a cross-appeal, must be filed within 30 days from the date upon which a decision or order has been filed in the office of the Deputy Commissioner....

To synthesize these interlocking regulations, then, when a motion for reconsideration is filed by any party, a previously filed notice of appeal is nullified ipso facto. ⁸ Any party who still desires review before the BRB, whether he be a party who has previously filed a notice of appeal or a newly aggrieved party, must wait until the motion for reconsideration has been resolved. ⁹ Once the ALJ or deputy commissioner has filed his order or decision on the reconsideration motion, the would-be appellant--old or new--then has thirty more days to file a notice of appeal (a new one if a previously filed notice of appeal had been nullified by the filing of the motion for reconsideration). ¹⁰

In Tideland Welding, we applied an almost identical former version of section 802.206(f) and reversed a decision of the BRB. We so ruled because the BRB had failed to dismiss as premature an insurer's appeal filed prior to the timely filing by two claimants of a motion for reconsideration; and we did so regardless of the fact that the subject motion was eventually withdrawn. ¹¹ Other courts have been no less firm in requiring strict adherence to section 802.206(f). ¹²

Based on its...