Jacksonville Shipyards, Inc. v. Estate of Verderane
| Decision Date | 09 April 1984 |
| Docket Number | 81-5757,Nos. 81-5696,s. 81-5696 |
| Parties | JACKSONVILLE SHIPYARDS, INC., and Aetna Casualty and Surety Company, Petitioners, v. ESTATE OF Edward J. VERDERANE, and the Director, Office of Workers' Compensation Programs, Respondents. JACKSONVILLE SHIPYARDS, INC., and Aetna Casualty and Surety Company, Respondents, v. ESTATE OF Edward J. VERDERANE, and the Director, Workers' Compensation Programs, Petitioners. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
John E. Houser, Jacksonville, Fla., for petitioners.
Janet R. Dunlop, Agnes Kurtz, B.R.B., U.S. Dept. of Labor, Washington, D.C., for Benefits Review Bd John N. Bryant, Jacksonville, Fla., for Verderane.
Joshua T. Gillelan, II, Washington, D.C., for Office of Workers' Compensation Programs.
Petitions for Review of an Order of the Benefits Review Board.
Before HILL, VANCE and ANDERSON, Circuit Judges.
Jacksonville Shipyards and the Estate of Edward Verderane each petitioned this court to review an order entered by the Benefits Review Board of the United States Department of Labor. The Board, by its order, affirmed an administrative law judge's finding that Verderane was entitled to disability benefits under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Secs. 901-950 (1976) (the Act). However, because it disagreed with the method used by the ALJ to calculate the statutory adjustments to Verderane's compensation rate, the Board vacated the ALJ's award of benefits and remanded for recomputation of the award.
After this court granted the petitions for review, the Director of the Office of Workers' Compensation Programs, United States Department of Labor, moved this court to dismiss the consolidated appeal on the ground that no appealable final order had been entered by the Benefits Review Board. We agree with the Director and therefore dismiss the petitions for review.
Under section 21(c) of the Act, 33 U.S.C. Sec. 921(c):
Any person 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, by filing in such court within sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside.
Without exception, this circuit has held that section 21(c) requires the Board's order to be final 1 and does not provide for review of a Board order that remands the case to an ALJ for further findings on a claimant's award of benefits. See, e.g., United Fruit Co. v. Director, Office of Workers' Compensation Programs, 546 F.2d 1224, 1225 (5th Cir.1977); Gulfport Shipbuilding Corp. v. Vallot, 334 F.2d 358, 360 (5th Cir.1964), cert. denied, 380 U.S. 974, 85 S.Ct. 1333, 14 L.Ed.2d 269 (1965). In fact, no circuit has reached a contrary conclusion on the issue. See Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399 (5th Cir.1984) (en banc) (collecting cases); Sun Shipbuilding & Dry Dock Co. v. Benefits Review Board, 535 F.2d 758 (3d Cir.1976).
1 Generally, a judgment or order is not final for purposes of appellate review unless the decision "ends the litigation on the merits and leaves nothing...
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