McCord v. Cephas
Decision Date | 24 March 1976 |
Docket Number | Nos. 74-1948 and 74-1964,s. 74-1948 and 74-1964 |
Parties | Edgar McCORD, T/A Mac's Cities Service, Petitioner, v. John F. CEPHAS, Deceased, Respondent. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. Malinda CEPHAS, Respondent. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Robert B. Adams, for petitioner in No. 74-1948. Mark L. Schaffer, Washington, D.C., also entered an appearance for petitioner in No. 74-1948.
Ronald E. Meisburg, Atty., U.S. Dept. of Labor, Washington, D.C., with whom George M. Lilly, Atty., U. S. Dept. of Labor, Washington, D.C., was on the brief for petitioner in No. 74-1964. Cornelius E. Donoghue, Jr., Atty., U.S. Dept. of Labor, Washington, D.C., also entered an appearance for petitioner in No. 74-1964.
Aaron M. Levine, Washington, D.C., for respondents.
Before LEVENTHAL and MacKINNON, Circuit Judges, and McMILLAN, * United States District Judge for the Western District of North Carolina.
Opinion for the Court filed by District Judge McMILLAN.
Edgar McCord, employer, filed this petition seeking reversal of an August 16, 1974, decision of the Benefits Review Board of the United States Department of Labor in favor of the dependents of the deceased employee, John Cephas. Pursuant to Section 22 of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 922, which permits reopening of awards "because of a mistake in a determination of fact," the Administrative Law Judge had reversed a prior award in favor of Cephas' dependents. The Benefits Review Board ruling, under review here, vacated the Administrative Law Judge's decision and reinstated the original award.
We reverse the Benefits Review Board because its decision is based on an approach inconsistent with the Supreme Court's reading of the scope of § 22 in O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 92 S.Ct. 405, 30 L.Ed.2d 424 (1971) and Banks v. Chicago Grain Trimmers Assn., Inc., 390 U.S. 459, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1967), and remand for a determination of whether reopening in this case is desirable in order "to render justice under the act." H.Rep.No. 1244, 73d Cong., 2d Sess. 4 (1934); Banks v. Chicago Grain Trimmers Assn., Inc., 390 U.S. at 464, 88 S.Ct. at 1144, 20 L.Ed.2d at 36.
John Cephas had a regular $60 a week working job for Dunkey's trash removal service of Washington, D.C. Dunkey's trucks were regularly parked at McCord's Citgo gas station, at 2319 Benning Road, N.E. On December 28, 1968, John Cephas was seen working at McCord's gas station, selling gas, waiting on customers, and wearing a Citgo hat and shirt. While there, he was shot in the leg by a robber, resulting in a leg fracture, was hospitalized, and died on January 1, 1969, as a result of the wound.
Mrs. Cephas promptly filed claim against McCord for benefits under the applicable Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq. Whether Cephas' death arose out of and in the course of "employment" by McCord was of course one of the principal questions presented by the claim. On January 16, 1969, the Bureau of Employees' Compensation notified McCord of the claim. McCord, two days later, returned the notice with the written notation, "John Cephas has never been in our employment."
Four years passed.
During that four years, Mrs. Cephas pursued her claim, through administrative channels, and McCord remained aloof, refusing to appear or defend or supply information. On February 12 and February 13, 1969, he refused to cooperate with a Labor Department investigator, and refused to sign or complete forms controverting the claim. On March 2, 1971, he refused to appear for a conference, telling the claims examiner to "go ahead and do what you want." He apparently refused to attend or participate in any conference or hearing. On September 20, 1972, he disregarded a subpoena and failed to appear at a formal hearing. Details of other instances of disdain for the claim and the administrative process are alleged in the briefs.
On October 13, 1972, a Deputy Commissioner issued an award of death benefits to Cephas' widow, and sent a copy to McCord. He did not respond nor appeal within the thirty days allowed by Section 21 of the Act, 33 U.S.C. § 921.
Over three months later, McCord consulted a lawyer who on January 31, 1973, filed a petition for modification of the award on the grounds that the original decision that Cephas was in the employment of McCord was a mistake in a determination of fact. The Deputy Commissioner allowed a re-opening and referred the case to an Administrative Law Judge (successor after November 26, 1972, to the hearing functions of the deputy commissioner) for a second hearing.
McCord showed up, with counsel, for the second hearing, offered evidence, convinced the Administrative Law Judge that Cephas had not been in his employment, and obtained an order from the Administrative Law Judge reversing the prior award in favor of the dependents of Cephas. (The Administrative Law Judge found McCord's inattention to the proceedings to have been a "reprehensible flouting of governmental authority," and required him therefor to pay $750 to the claimant. He also certified his findings and conclusions to that effect to the District Court of the District of Columbia Circuit for summary proceedings for contempt. (App. 25.)
Mrs. Cephas appealed to the Benefits Review Board. On August 16, 1974, that Board vacated the Administrative Law Judge's decision on the merits and reinstated the original award in favor of the dependents of Cephas, upon the grounds that the Administrative Law Judge had no jurisdiction, after the thirty days prescribed in 33 U.S.C. § 921, to grant the employer's request for modification upon grounds of a mistake in a determination of fact, particularly a jurisdictional fact such as the existence of the employment relationship.
McCord, the employer, sought review in this court.
The appellant's right to review depends upon Section 22 of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 922, which provides:
§ 922. Modification of awards.
The Benefits Review Board took the view that though § 22 authorizes modification, it does not authorize nullification of existing awards. They also, citing Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932), felt that a finding that the employment relationship exists is a "jurisdictional fact" which, if not appealed in thirty days under § 21, may not be reviewed under § 22. Therefore, they held that the Deputy Commissioner had no jurisdiction to re-open the case.
We think the Deputy Commissioner did in fact have jurisdiction to re-open.
In O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 92 S.Ct. 405, 30 L.Ed.2d 424 (1971), the Supreme Court placed a broad and remedial interpretation upon § 22. The Court said:
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