Ingalls Shipbuilding, Inc. v. Asbestos Health Claimants, 93-7077

• Decision Date: 30 March 1994
• Docket Number: No. 93-7077,93-7077
• Citation: 17 F.3d 130
• Parties: INGALLS SHIPBUILDING, INC., Plaintiff/Appellee, v. ASBESTOS HEALTH CLAIMANTS, Intervenors-Appellants, and N. Sandra Kitchin, District Director for the Sixth Compensation District, Office of Workers' Compensation Programs, United States Department of Labor, Defendant/Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 130

17 F.3d 130

62 USLW 2634

INGALLS SHIPBUILDING, INC., Plaintiff/Appellee, v. ASBESTOS HEALTH CLAIMANTS, Intervenors-Appellants and N. Sandra Kitchin, District Director for the Sixth Compensation District, Office of Workers' Compensation Programs, United States Department of Labor Defendant/Appellant.

No. 93-7077.

United States Court of Appeals Fifth Circuit.

March 30, 1994.

Joshua T. Gillelan, II, U.S. Dept. of Labor, Office of Sol., Washington, DC, for Kitchin.

Hayden S. Dent, Pascagoula, for Asbestos Health Claimants.

Richard P. Salloum, Paul M. Franke, Jr., Franke, Rainey & Salloum, Gulfport, MS, William J. Powers, Jr., George M. Simmerman, Jr., Ingalls Shipbuilding-Law Dept., Pascagoula, MS, for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Mississippi.

Before JOHNSON, GARWOOD, and JOLLY, Circuit Judges.

JOHNSON, Circuit Judge:

Ingalls Shipbuilding, Inc. ("Ingalls") filed the instant action seeking to compel N. Sandra Kitchin, the District Director for the Sixth Compensation District (the "Director"), to transfer the asbestos claims of approximately 3,100 former Ingalls' shipyard workers to the Office of the Administrative Law Judge ("OALJ") for a hearing. The district court granted a writ of mandamus ordering the Director to refer the cases. The Director appeals. We AFFIRM.

FACTS AND PROCEDURAL HISTORY

On October 10, 1990, Ingalls filed with the OALJ a Motion to Consolidate and Motion for Summary Decision concerning certain asbestos claims by former Ingalls' shipyard workers on file with the Director. ¹ Along with that filing, Ingalls formally requested that the Director transfer the enumerated claims to the OALJ for an administrative hearing. On November 2, 1990, and February 15, 1991, Ingalls made identical filings with respect to newly identified claims bringing the total number of claims that it requested the Director to transfer to the OALJ for a hearing to approximately 3,100. ²

In December of 1990, at Ingalls' request, the Director did refer a group of fifty-five of these claims ³ to the OALJ for a hearing and disposition on Ingalls' substantive motions. However, the Director then refused to transfer the balance of the cases. Instead, over the next several years, the Director continued in devising new and inventive rationales for deferring the referral of these claims.

Hence, on October 10, 1991, Ingalls filed the instant mandamus action seeking to force the Director to transfer the claims.

The district court ruled in favor of Ingalls finding that the Director had a nondiscretionary duty under the LHWCA to order a hearing before the OALJ when requested by an interested party. Thus, on January 7, 1993, the district court issued an order compelling the Director to transfer the asbestos claims to the OALJ. The parties now appeal.

1. JURISDICTION

Initially, we must respond to the Director's contention that the district court lacked jurisdiction to issue the instant mandamus order. Subject matter jurisdiction is a question of law over which we exercise plenary review. Ceres Gulf v. Cooper, 957 F.2d 1199, 1204 (5th Cir.1992).

In this case, jurisdiction in the district court is predicated on the Mandamus and Venue statute. That statute broadly provides that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. Sec. 1361. The current action was brought in an attempt to compel the Director, an officer of the United States, to perform a duty allegedly owed to the plaintiff pursuant to the LHWCA, a federal statute. Thus, it is clear that this action falls squarely within the ambit of this statute.

Nevertheless, the Director contends that we should remove this action from the reach of section 1361 on the strength of Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C.Cir.1984) (hereinafter TRAC). In TRAC, the D.C. Circuit held that where an agency's governing statute vests jurisdiction for review of agency action in the court of appeals, that court also has the power to compel agency action in aid of that jurisdiction. ⁴ TRAC 750 F.2d at 77. Further, the TRAC court explained that the existence in the appellate court of the power to compel agency action defeated mandamus jurisdiction in the district court pursuant to 28 U.S.C. Sec. 1361 because mandamus is not available when review by other means is possible. Id. at 77-78.

Even if we chose to follow our sister circuit's holding in TRAC, we do not believe that this would compel a holding in this case that the district court lacked jurisdiction. This is because in TRAC, the appellate court's jurisdiction to compel action by the FCC was based on the statutorily conferred jurisdiction to review final FCC actions. While the LHWCA does provide for review by the court of appeals, that review is limited to final orders of the Benefits Review Board (the "Board"). 33 U.S.C. Sec. 921(c). However, the action or inaction at issue in the instant case is attributable to the Director and not the Board.

Prior to 1972, the Director had both the administrative duties and the full adjudicatory authority under the LHWCA. ⁵ In 1972, though, Congress amended the LHWCA and split the authority for these two functions. ⁶

                The Director retains authority for the overall administration of the statute.  Substantive legal or factual disputes arising under the LHWCA, however, are to be decided by the OALJ with review to the Board. 7  Director, Office of Workers' Compensation Programs v. O'Keefe, 545 F.2d 337, 343 (3d Cir.1976)
                

Review by this Court is limited to final orders made by the Board in the exercise of its adjudicatory authority. 33 U.S.C. Sec. 921(c). The LHWCA does not, however, extend to this Court original jurisdiction over the actions of the Director in the exercise of her administrative authority.

As we have no statutorily conferred jurisdiction over the actions of the Director, the All Writs Act would not provide this Court with jurisdiction to compel action by the Director. 28 U.S.C. Sec. 1651(a). Hence, review is not otherwise available in the court of appeals and thus, even under the reasoning of the TRAC court, there is no basis to defeat the mandamus jurisdiction of the district court under 28 U.S.C. Sec. 1361. See TRAC 750 F.2d at 77-78.

Therefore, we conclude that jurisdiction in the district court to issue the instant order was proper pursuant to the Mandamus and Venue statute, 28 U.S.C. Sec. 1361.

2. MANDAMUS

Mandamus is only appropriate when the claim is "clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt." Giddings v. Chandler, 979 F.2d 1104, 1108 (5th Cir.1992); See also Nova Stylings, Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir.1983). Mandamus is thus not generally available to review the discretionary acts of public officials. Giddings, 979 F.2d at 1108. Though this is a difficult burden for a plaintiff to meet, we believe that the plaintiff herein has shown that it is entitled to relief.

The duty in this case stems from the text of the LHWCA. That statute provides that "[t]he [Director] shall make or cause to be made such investigation as [she] considers necessary in respect of the claim, and upon application of any interested party shall order a hearing thereon." 33 U.S.C. Sec. 919(c) (emphasis added). That this section creates a clear, non-discretionary duty on the part of the Director was decided by this Court in Atlantic & Gulf Stevedores, Inc. v. Donovan, 274 F.2d 794, 802 (5th Cir.1960); See also Pyro Mining Co. v. Slaton, 879 F.2d 187, 190 (6th Cir.1989).

The facts in Atlantic & Gulf are very similar to the case at bar. In Atlantic & Gulf, the employer requested a hearing, and when the director refused, the employer sought a mandatory order in the district court to compel a hearing. After dismissal in the district court, the case came before this Court presenting the issue of whether the district court could properly order the Director to proceed to a hearing. ⁸ Atlantic & Gulf, 274 F.2d at 796.

After reviewing the LHWCA, this Court found that, under 33 U.S.C. Sec. 919(c), the Director had a clear and mandatory duty to proceed to a hearing. Id. at 802. Further, the Atlantic & Gulf Court found that the Director was in derogation of that duty and that the district court was empowered to issue a suitable mandatory order to compel compliance with that duty. ⁹

The Director herein does not seriously dispute the mandatory nature of this duty. Instead, she contends that she has discretion to delay the performance of that duty. The exercise of this discretion is justified, she argues, because delaying the referral of these cases would not prejudice Ingalls and because of the administrative concerns she has raised. ¹⁰

We cannot agree that the Director possesses discretion to delay ordering a hearing after a request for one has been made. Under the LHWCA, the Director is expressly granted broad discretion in the early stages of a claim. As the majority of claims involve problems that result from misunderstandings or mistakes of fact or law which "seldom require resolution through formal hearings.... the [Directors] are empowered to amicably and promptly resolve such problems by informal procedures." 20 C.F.R. Sec. 702.301. These efforts usually take the form of informal discussions, written communications or informal conferences at the Director's office. 20 C.F.R. Sec. 702.317.

However, if it becomes apparent that the claim cannot be settled amicably, or on application of an interested party, the Director's discretion ends and she must refer the case to the OALJ for a hearing. This is clear from the governing regulations which state that

if [the Director] is satisfied that any further conference would be unproductive, or if any pa...