Ingalls Shipbuilding Div., Litton Systems, Inc. v. White

• Citation: 681 F.2d 275
• Decision Date: 26 July 1982
• Docket Number: No. 80-4002,80-4002
• Parties: INGALLS SHIPBUILDING DIVISION, LITTON SYSTEMS, INC., Petitioner, v. John H. WHITE and Director, Office of Workers' Compensation Programs, U. S. Department of Labor, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 275

681 F.2d 275

INGALLS SHIPBUILDING DIVISION, LITTON SYSTEMS, INC., Petitioner, v. John H. WHITE and Director, Office of Workers' Compensation Programs, U. S. Department of Labor, Respondents.

No. 80-4002.

United States Court of Appeals Fifth Circuit.

July 26, 1982.

Paul M. Franke, Jr., Gulfport, Miss., John H. Carlson, Pascagoula, Miss., for petitioner.

Roy Axelrod, San Francisco, Cal., for amicus curiae Bethlehem Steel Corp. et al.

Mark C. Walters, Joshua T. Gillelan, II, U. S. Dept. of Labor, Washington, D. C., for Director, Office of Workers Compensation Programs.

Roland Skinner, Biloxi, Miss., for White.

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

Before CLARK, Chief Judge, THORNBERRY and GARZA, Circuit Judges.

THORNBERRY, Circuit Judge:

The Director of the Office of Workers' Compensation Programs, Department of Labor, asks this court to decide whether administrative law judges have the power to approve compromise settlements under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. The Director argues that the power to approve settlements under the LHWCA lies solely in the offices of the deputy commissioner and the Secretary. Appellant Ingalls Shipbuilding Division, Litton Systems, Inc., and Bethlehem Steel Corp. and Triple A Shipyards as amicus insist that administrative law judges share this authority. Ingalls urges in addition that the Director lacks standing either to appeal the approved compromise settlement to the Benefits Review Board or to appear before this court as an appellee defending the Board's order.

This dispute began with an event that appears far removed from the issues in this appeal. The LHWCA claimant, John W. White, was injured on February 17, 1977, in the course of his employment as a shipfitter for Ingalls Shipbuilding, when a 350-pound pressing ram crushed his right hand. After receiving compensation for temporary total disability, White sought relief under the LHWCA for any permanent injury he had sustained. His claim could not be resolved in the deputy commissioner's office because the parties could not agree on the extent of injury. The deputy commissioner, therefore, referred the claim to an administrative law judge (ALJ) for a formal hearing as permitted under 33 U.S.C. § 919.

Before a hearing could be held, however, on January 11, 1979, the parties informed the ALJ that they had agreed to a compromise settlement under 33 U.S.C. § 908(i)(A). The settlement was based on a medical report by Dr. L. Conrad Rowe, who found that White was suffering from a 25% permanent partial disability of the right hand, but that he could continue to work if he refrained from lifting heavy objects. Under the terms of the settlement, Ingalls agreed to pay White $25,000, on the condition that it did not have to rehire him, and to pay all medical bills related to his injury. It also promised to pay White's attorney $2,300. The ALJ did not remand the case to the deputy commissioner to obtain his approval of the settlement terms. Instead, he issued an Order Approving Settlement on January 30, 1979. The order stated that the settlement was "in the best interests of Claimant" and "in accord with Clefstad v. Perini North River Associates, 9 BRBS 217, BRB No. 77-584 (1978)." The judge's reference to Clefstad is a crucial part of any order approving settlement. In this instance, however, it proved to be insufficient to sustain the order.

Upholding the authority of administrative law judges to approve settlements, the Benefits Review Board held in Clefstad that before he approves a proposed settlement, an ALJ must consider the claimant's age, education, work history, medical condition, and the availability of the type of work that the claimant is able to perform. 9 BRBS at 222. While the ALJ below cited Clefstad, he did not discuss the evidence underlying each Clefstad factor. This failure to follow Clefstad to the letter as well as fear that the $25,000 lump sum settlement would be inadequate to compensate the claimant for his injuries prompted the Director to appeal the order to the Benefits Review Board under 33 U.S.C. § 921(b)(3).

With the advantage of full briefing and oral argument, the Board rejected appellant's contention that the Director lacked standing to appeal the ALJ's order. It found that Congress intended the standing requirement to appear before the Board to be satisfied more easily than the standing criteria for appearance in federal court. In fact, the Board held that the Director had "automatic" standing "in any case before the Board." Thus able to reach the merits of the ALJ's order approving settlement, the Board found the ALJ's treatment of Clefstad to be inadequate and remanded the order for "a complete rationale according to the guidelines set forth in Clefstad." Ingalls then appealed to this court under 33 U.S.C. § 921(c).

I. JURISDICTION

Section 921(c) of the LHWCA provides that "(a)ny party adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred...." 33 U.S.C. § 921(c) (emphasis supplied). Although none of the parties has raised the issue of whether the Board's action in this case constitutes a "final order," it is our threshold duty to determine whether we have subject-matter jurisdiction of this petition for review. Accordingly, we must inquire whether Ingalls' petition for review from a remand order of the Benefits Review Board is final under § 921(c).

The "final order" requirement of § 921(c) furthers the same policies as the finality rule embodied in 28 U.S.C. § 1291 (1976). Thus, finality under both statutes holds the same meaning. Director, Office of Workers' Compensation Programs v. Brodka, 643 F.2d 159, 161 (3d Cir. 1981). It is a well-established rule of appellate jurisdiction that a remand order to an administrative agency is ordinarily not treated as a final order. National Steel & Shipbuilding Co. v. Director, Office of Workers' Compensation Programs, 626 F.2d 106, 108 (9th Cir. 1980). ¹ This circuit has followed the rule of other circuits in holding that this general rule mandates dismissal of a petition for review from a remand order of the Benefits Review Board if the court finds that the Board's decision is not a final order. United Fruit Co. v. Director, Office of Workers' Compensation Programs, 546 F.2d 1224, 1225 (5th Cir. 1977). ²

Like every rule, however, this principle of appellate jurisdiction has exceptions. National Steel & Shipbuilding Co., supra, 626 F.2d at 108. We hold that the appeal in this case falls within the exception to the final judgment rule as stated in Gillespie v. United States Steel Corp., 379 U.S. 148, 152-54, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964). In Gillespie, the administratrix of the estate of her son, Daniel, brought actions against the vessel owner-employer to recover damages for Daniel's death for herself and on behalf of Daniel's brother and sisters under the Jones Act and the Ohio wrongful death statute. The vessel owner moved to dismiss all reference to the laws of Ohio and the claims of Daniel's brother and sisters. The trial court granted the motion. Gillespie appealed for herself, joined by the brother and sisters. The vessel owner moved to dismiss the appeal on the ground that the rulings appealed from were not "final" decisions under 28 U.S.C. § 1291. The Sixth Circuit reached the merits of the controversy without deciding the question of appealability. The Supreme Court reversed on the merits, but held that the decision of the trial court was "final" for purposes of § 1291.

The Court recognized that the question of finality was frequently so close that "it is impossible to devise a formula to resolve all marginal cases coming within what might well be called the 'twilight zone' of finality." 379 U.S. at 152, 85 S.Ct. at 311. The requirement of finality, therefore, "is to be given a 'practical rather than a technical construction.' " Id., quoting from Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949). This practical assessment involves two competing considerations: " 'the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.' " Id. at 152-53, 85 S.Ct. at 311. Finding that the eventual costs would be less if it reached the merits and that to do otherwise would unnecessarily delay recovery, the Supreme Court held that a practical interpretation of § 1291 justified its maintaining jurisdiction of the appeal. ³

We conclude that a decision on the merits of this appeal does not raise the spector of piecemeal review before the court. The only issue presented that is directly related to the remand order is whether the ALJ made the appropriate findings in his original order approving settlement. The remaining issues, which involve the standing of the Director and the authority of the ALJ to approve lump-sum settlements, are purely matters of law and are "final" in that they have been litigated and decided by the Benefits Review Board. The question of whether the ALJ's order approving settlement conformed with Clefstad does not undermine finality in this instance for the following reasons.

If we were to dismiss for lack of jurisdiction to allow the ALJ to reconsider the settlement and if we were to find on a later appeal that the ALJ lacked authority to approve lump-sum settlements, a dismissal at this stage in the proceedings would be entirely purposeless, for the ALJ's power to reconsider the settlement depends completely on our interpretation of the relevant enabling statute. This result would create much greater "cost and inconvenience" than would an immediate decision on the merits. Moreover, a dismissal with the threat of reversal on future appeal ultimately could work a harsh injustice on the...