Duck v. Fluid Crane & Construction Co.
| Decision Date | 22 October 2002 |
| Docket Number | BRB 02-0335 |
| Court | Longshore Complaints Court of Appeals |
| Parties | WILLIAM R. DUCK (Decedent) MARY KYLEE PULLIN, Claimant-Petitioner v. FLUID CRANE & CONSTRUCTION COMPANY and LOUISIANA WORKERS' COMPENSATION CORPORATION, Employer/Carrier-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent |
Appeal of the Decision and Order of C. Richard Avery, Administrative Law Judge, United States Department of Labor.
Gordon P. Sandoz II (Sandoz and Sandoz), Abbeville, Louisiana, for claimant.
David K. Johnson (Johnson, Stiltner & Rahman), Baton Rouge Louisiana, for employer/carrier.
Edward D. Sieger (Eugene Scalia, Solicitor of Labor; Allen H. Feldman, Associate Solicitor for Special Appellate and Supreme Court Litigation; Nathaniel I. Spiller, Deputy Associate Solicitor), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: SMITH, McGRANERY and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals the Decision and Order (2001-LHC-1038) of Administrative Law Judge C. Richard Avery rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C §901 et seq. (the Act). We must affirm the administrative law judge's findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
William Duck (decedent) sustained fatal injuries while working for employer on May 10, 1998. His minor, illegitimate daughter, Mary Kylee Pullin, survived him. Claimant, Kimberly Pullin, filed a claim seeking death benefits on behalf of her minor daughter, pursuant to Section 9(c) of the Act, 33 U.S.C. §909(c). In his decision, the administrative law judge determined that Mary Kylee Pullin was not dependent upon decedent at the time of his death, and thus, she is not entitled to death benefits under the Act.
On appeal, claimant challenges the administrative law judge's denial of death benefits. Employer and the Director, Office of Workers' Compensation Programs (the Director) respond, urging affirmance.[1]
Claimant argues that the Louisiana Civil Code provides a presumption that decedent was legally obligated to support his daughter up to the time of his death, and thus avers that Mary Kylee Pullin is entitled to death benefits. In addition, claimant asserts that as the Act requires a higher standard of proof for an illegitimate child, i.e., proof of dependency, it violates the Due Process Clause of the Fifth Amendment of the United States Constitution.
Section 9(c) of the Act provides for the payment of compensation for death of an employee to a child or children of the deceased employee where there is no surviving spouse. 33 U.S.C. §909(c). A "child" includes an "acknowledged illegitimate child dependent upon the deceased."[2] 33 U.S.C. §902(14). It is uncontested that decedent "acknowledged" Mary Kylee Pullin as his child. Thus, entitlement herein turns on whether Mary Kylee Pullin (Kylee) was required to establish that she was "dependent" upon decedent at the time of his death, and if so, whether she was dependent on decedent.[3]
Claimant contends that by requiring an illegitimate child to establish dependency, the Act violates the Equal Protection Clause of the Fifth Amendment of the United States Constitution. This issue was mentioned very briefly at the hearing. Tr. at 16-17. The administrative law judge stated in his decision that he did not think that requiring claimant herein to establish dependency was a fair result since a "legitimate child does not have to prove dependency, and legally and morally speaking Mr. Duck was under an obligation to provide support for the child he fathered whether he was actually doing so at the time of his death or not." Decision and Order at 4 n.4. As the issue raised on appeal concerns purely a question of law, it is appropriate for the Board to address the issue.[4] See Logara v. Jackson Engineering Co., 35 BRBS 83 (2001); Aurelio v Louisiana Stevedores, Inc., 22 BRBS 418 (1989), aff'd mem., No. 90-4135 (5th Cir. March 5, 1991); see also Martinez v. Mathews, 544 F.2d 1233 (5th Cir. 1976).
Claimant argues, based on decisions of the United States Supreme Court in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 176 (1972), Levy v. Louisiana, 391 U.S. 68 (1968), and Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73 (1968), wherein the Court invalidated three Louisiana statutes because of their denial of equal protection rights to illegitimate children, that the Act is unconstitutional to the extent that it requires illegitimate children to prove dependency in order to establish entitlement to death benefits.[5] In contrast, the Director argues that the Act provides a scheme whereby death benefits are limited to actual dependents of the worker and normally continue only for the period of dependency. The Director acknowledges that there are differing requirements of proof for illegitimate as opposed to legitimate children on the issue of dependency but asserts that this distinction is appropriate as it serves a legitimate Congressional purpose of "administrative convenience." The Director relies on the decision of the Supreme Court in Mathews v. Lucas, 427 U.S. 495 (1976), in support of his position.
The Due Process Clause of the Fifth Amendment prohibits a "discriminatory" act by the federal government. Bolling v. Sharpe, 347 U.S. 497 (1954); see also San Francisco Arts & Athletics v. U.S. Olympic Committee, 483 U.S. 522, 542 n. 21 (1987); Buckley v. Valeo, 424 U.S. 1 (1976). As a general proposition, discrimination on the basis of suspect classifications like illegitimate birth calls for an intermediate scrutiny test wherein the government action must directly advance substantial interests and clear governmental objectives and be no more extensive than necessary. Weber, 406 U.S. at 176.
In Lucas, the Supreme Court sustained provisions of the Social Security Act governing the eligibility for surviving children's insurance benefits, observing that one of the statutory conditions of eligibility was dependency upon the deceased wage earner. Lucas, 427 U.S. 495. Although the Act presumed dependency for a number of categories of children, including some categories of illegitimate children, it required that the remaining illegitimate children prove actual dependency. The Court held that the "statute does not broadly discriminate between legitimates and illegitimates without more, but is carefully tuned to alternative considerations." Lucas, 427 U.S. at 513; see also Trimble v. Gordon, 430 U.S. 762 (1977). The presumption of dependency, observed the Court, is withheld only in the absence of any significant indication of the likelihood of actual dependency and where the factors that give rise to a presumption of dependency lack any substantial relation to the likelihood of actual dependency. In identifying these factors, the Court relied predominantly on the Congressional purpose in adopting the statutory presumptions of dependency, i.e., to serve administrative convenience. With regard to administrative convenience, the Court recognized that:
While Congress was unwilling to assume that every child of a deceased insured was dependent at the time of death, by presuming dependency on the basis of relatively readily documented facts, such as legitimate birth, or a support order or paternity decree, which could be relied upon to indicate the likelihood of continued actual dependency, Congress was able to avoid the burden and expense of specific case-by-case determination in the large number of cases where dependency is objectively probable. Such presumptions in aid of administrative functions, though they may approximate, rather than precisely mirror, the results that case-by-case adjudication would show, are permissible under the Fifth Amendment, so long as that lack of precise equivalence does not exceed the bounds of substantiality tolerated by the applicable level of scrutiny.
Lucas, 427 U.S. at 509. As a result, the Court found that "the statutory classifications challenged here are justified as reasonable empirical judgments that are consistent with a design to qualify entitlement to benefits upon a child's dependency at the time of the parent's death." Lucas, 427 U.S. at 511. The Court thus held that conditioning entitlement upon dependency at the time of death is not impermissibly discriminatory in providing benefits only for those children for whom the loss of the parent is an immediate source of the need. Therefore, the Court upheld the statutory classifications as they were "reasonably related to the likelihood of dependency at death." Lucas, 427 U.S. at 509.
In Lucas, the Court specifically framed the constitutional question as not whether a presumption of dependency is required, but whether it is permitted. The Court added that in ratifying these statutory classifications, it is not:
our role to hypothesize independently on the desirability or feasibility of any possible alternative basis for presumption. These matters of practical judgment and empirical calculation are for Congress. Drawing upon its own practical experience, Congress has tailored statutory classifications in accord with its calculations of the likelihood of actual support suggested by a narrow set of objective and apparently reasonable indicators. Our role is simply to determine whether Congress' assumptions are so inconsistent or insubstantial as not to be reasonably supportive of its conclusions that individualized factual inquiry in order...
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