Beach v. Noble Drilling Corporation

Decision Date07 February 1995
Docket NumberBRB 94-3924
PartiesRALPH G. BEACH, Claimant-Respondent v. NOBLE DRILLING CORPORATION and HOUSTON GENERAL INSURANCE COMPANY, Employer/Carrier-Petitioners
CourtLongshore Complaints Court of Appeals

Case No. 93-LHC-1243, OWCP No. 07-0116230.

ORDER ON RECONSIDERATION EN BANC

HALL Chief Administrative Appeals Judge:

Employer/carrier (employer) timely moves for reconsideration of the Board's Order dated September 22, 1994, dismissing employer's appeal as untimely. 33 U.S.C. §921(b)(5); 20 C.F.R. §802.407. Claimant has filed a response to the motion, urging that it be denied. For the reasons stated below, we deny the motion for reconsideration.

In this case, the administrative law judge's Decision and Order was filed in the office of the district director[1] on August 2, 1994. The Board received employer's notice of appeal on September 6, 1994, but noted that the date of mailing was September 2, 1994. Considering the notice of appeal to have been filed on September 2, the Board dismissed the appeal for lack of jurisdiction as it should have been filed by September 1 1994, in order to be timely. 33 U.S.C. §921(a); 20 C.F.R. §§802.205, 802.221.

The certificate of filing and service attached to the administrative law judge's Decision and Order shows service by certified mail on August 2, 1994, on claimant, his attorney, carrier and its attorney, at the correct addresses. In the motion for reconsideration, employer's counsel maintains that he received, by certified mail, a copy of the administrative law judge's Decision and Order no earlier than August 5, 1994, and that the 30-day period for filing an appeal should run from the date of his receipt. Thus employer maintains that its appeal filed on September 2 1994, is timely.

Employer advances several arguments in support of its contention that actual receipt of the decision and order is required before "service" is effected. Employer first contends that the decision of the United States Court of Appeals for the Ninth Circuit in Nealon v. California Stevedore & Ballast Co., 996 F.2d 966, 27 BRBS 31 (CRT) (9th Cir. 1993), stands for the proposition that "service" requires "actual receipt." Employer also contends that the Nealon court "requires" the Department of Labor to administer the procedural rules of the Longshore Act consistent with those of the Black Lung Act. In this regard, employer contends that the decisions in Old Ben Coal Co. v. Jones, 897 F.2d 900, 13 BLR 2-360 (7th Cir. 1990), and Jewell Smokeless Coal Corp. v. Looney, 892 F.2d 366, 13 BLR 2-177 (4th Cir. 1989), also require actual receipt of the administrative law judge's decision before the 30-day appeal period begins to run. Employer further contends that Rule 6(e) of the Federal Rules of Civil Procedure allows three additional days to be added to the end of the prescribed period so that its notice of appeal is timely.

Section 21(a) of the Act, 33 U.S.C. §921(a), states that a compensation order shall become effective when filed in the office of the district director, and unless an appeal is filed with the Board, shall become final 30 days after it is filed. In Nealon, the certificate of service indicated service on the parties by certified mail, but claimant contended that neither he nor his attorney received the order by certified mail. The district director was unable to locate a certified mail receipt. The court considered the question of whether the Longshore Act requires service on the parties before the order is deemed to be "filed." The court first addressed the language of Section 19(e) of the Act, 33 U.S.C. §919(e), [2] and stated that although this section requires that the order be submitted to the district director and served on the parties, it is ambiguous as to whether service is required before the order may be considered filed. Nealon, 996 F.2d at 970, 27 BRBS at 35 (CRT). The court next considered the regulation at 20 C.F.R. §702.349, [3] and found it, too, to be ambiguous in that "filing" does not specifically include the "service" requirement. Id., 996 F.2d at 971, 27 BRBS at 37 (CRT). Finding no reason to treat Longshore and Black Lung cases differently, however, the court stated that, consistent with cases interpreting the Black Lung regulation, 20 C.F.R. §725.478, [4] the parties must be served by certified mail before the decision and order is considered to be "filed." Id., 996 F.2d at 972, 27 BRBS at 38-39 (CRT). The court thus held that the 30-day appeal period in Longshore cases does not begin to run until the decision and order is "filed" and that "filing" as used in Section 19(e) of the Act and Section 702.349 of the regulations encompasses service on the "parties, " i.e., claimant and employer, by certified mail.[5]

Contrary to employer's contention, the court in Nealon did not equate "service" with actual receipt. Rather, it stated that "filing" is not accomplished unless the parties are served by certified mail. See Stevedoring Services of America v. Director, OWCP, 29 F.3d 513, 28 BRBS 65 (CRT)(9th Cir. 1994)(Nealon held that "filing" under Sections 19(e) and 21(a) means both filed in the office of the district director and served on the parties). It remanded the case for an evidentiary hearing to determine if the claimant was served with the decision and order, and if so, the date on which service was made. Moreover, the facts in this case are not the same as the facts in Nealon in that there is no allegation of improper service on any party. See Barry v. Sea-Land Services, Inc., 27 BRBS 260 (1993), aff'd, ___ F.3d ____, No. 94-3026 (3d Cir. Dec. 7, 1994)(Board notes there is no allegation of improper service of the decision and order; employer therefore is liable for a Section 14(f) penalty for late payment of benefits). Rather, employer's counsel is alleging he did not receive the decision and order by certified mail, until three days after it was filed and served. Given that the decision and order was properly served on the parties in this case, the time for filing a notice of appeal runs from the date the decision and order was "filed" in the office of the district director on August 2, 1994.

Employer next contends that the cases cited above interpreting the Black Lung regulation at 20 C.F.R. §725.478 require that the decision actually be received before "filing" can be accomplished, and that the court in Nealon, by reading the Longshore and Black Lung regulations in a consistent manner, in effect, incorporated this requirement into the Longshore Act.[6] The cases cited by employer, however, do not stand for the proposition suggested.

In Jones, 897 F.2d at 900, 13 BLR at 2-360, the employer was sent a copy of the administrative law judge's decision by regular mail, and never received it. Over two years later, after an inquiry about payment of benefits, employer requested a copy of the decision, and then filed an appeal within 30 days of its receipt of the decision. The Board dismissed the appeal, finding that improper mailing did not toll the 30-day time limit. The United States Court of Appeals for the Seventh Circuit stated that 20 C.F.R. §725.478, which implements Section 19(e) of the Longshore Act, "clearly conditions 'filing' upon service of the decision on all parties by certified mail." Jones, 897 F.2d at 902, 13 BLR at 2-363. Because of the improper service, the 30-day period was tolled until employer had actual knowledge of the adverse decision. Id., 897 F.2d at 903, 13 BLR at 2-364.

In Looney, 892 F.2d at 366, 13 BLR at 2-177, the administrative law judge's decision was "issued" on November 23, 1988, and the service sheet did not indicate whether it was sent out by certified or regular mail. The district director received a copy on December 2, 1988, and counsel for employer received it on November 28, 1988; it filed its appeal on December 27, 1988. The Board dismissed the appeal as untimely. The United States Court of Appeals for the Fourth Circuit reversed, stating that the record does not establish that the decision was sent to employer by certified mail, which is a statutory and regulatory requirement, and that employer filed its appeal within 30 days of its actual receipt of the decision.[7] Looney, 892 F.2d at 369, 13 BLR 2-183. Accord Youghiogheny & Ohio Coal Co. v. Benefits Review Board, 745 F.2d 380, 7 BLR 2-34 (6th Cir. 1984); see also Patton v. Director, OWCP, 763 F.2d 553, 7 BLR 2-216 (3d Cir. 1985) (proper service on counsel is required under 20 C.F.R. §§725.364 and 725.478 and 30-day appeal period is tolled until this time). Although the court stated that, if necessary in a particular case, it might condition the running of the 30-day period upon the appealing party's actual receipt of the decision by regular mail, it did not find it necessary to do so in the case before it. Looney, 892 F.2d at 369, 13 BLR 2-183.

Recently, the Fourth Circuit was faced with the issue it reserved in Looney. In Dominion Coal Corp. v. Honaker, 33 F.3d 401 (4th Cir. 1994), the administrative law judge's Decision and Order denying benefits was sent by regular mail to claimant's counsel and employer's counsel on January 15, 1988. A copy also was sent to claimant by regular mail, but was mailed to claimant's former address. The decision was filed in the office of the district director on February 2, 1988.

Claimant's counsel received the adverse decision on January 20, 1988 and wrote a letter to claimant informing him of the decision and withdrawing as his representative. Claimant contended he did not receive a copy of the administrative law judge's decision, but he did receive the letter from his attorney. He picked up his file, which did not contain a copy of the administrative law judge's decision, from his attorney's office in early February, and on March 4, claimant picked up a copy of...

To continue reading

Request your trial

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