Olsen v. Triple a Machine Shop, Incorporated
| Decision Date | 04 June 2003 |
| Docket Number | BRB 02-0612 |
| Parties | TOM OLSEN, Claimant-Petitioner v. TRIPLE A MACHINE SHOP, INCORPORATED, Self-Insured Employer-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Party-in-Interest |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeal of the Order Suspending Proceeding Until Such Time as the Claimant Obtains Representation from a Licensed Attorney of Paul A. Mapes, Administrative Law Judge, United States Department of Labor.
Tom Olsen, Albuquerque, New Mexico, pro se.
Robert E. Babcock, Sherwood, Oregon, for self-insured employer.
Peter B. Silvain, Jr. (Howard M Radzely, Acting Solicitor of Labor Donald S. Shire, Associate Solicitor; Mark Flynn, Acting Counsel for Longshore), Washington, D.C., for the Director Office of Workers' Compensation Programs, United States Department of Labor.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Claimant without the assistance of counsel, appeals the Order Suspending Proceeding Until Such Time as the Claimant Obtains Representation from a Licensed Attorney (2001-LHC-1500) of Administrative Law Judge Paul A. Mapes 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).
Claimant sustained a work-related injury in 1978. In 1982, Administrative Law Judge Halpern awarded claimant permanent total disability benefits as a result of the 1978 injury to his right ankle. Employer obtained relief from payment of compensation pursuant to Section 8(f), 33 U.S.C. §908(f). In 1986, claimant's entitlement to medical benefits was resolved via Section 8(i), 33 U.S.C. §908(i), settlement. See Olsen v. Triple A Machine Shop, Inc., 25 BRBS 40 (1991), aff'd mem. sub nom. Olsen v. Director, OWCP, 996 F.2d 1226 (9th Cir. 1993). In 1999, employer filed a motion for modification pursuant to Section 22, 33 U.S.C. §922, alleging that claimant's condition changed from total to partial and that he is employable. The Office of Administrative Law Judges (OALJ) assigned this claim number 2000-LHC-1504 (hereinafter #1504).[1] In late 2000, claimant filed a claim alleging injury due to exposure to toxic substances while at employer's facility, and he challenged the validity and scope of the 1986 settlement. These combined claims were assigned number 2001-LHC-1500 (hereinafter #1500). Claims #1504 and #1500 have not been consolidated, and no hearing has been held in either case. Although several delays were due to claimant's alleged medical condition,[2] other delays have been caused by claimant's filing numerous motions, seeking, among other things, summary judgment, an expedited hearing, the appointment of a medical doctor, recusal of the administrative law judge, sanctions against employer, a stay of proceedings, a protective order, removal from the calendar, and expansion of the scope of the hearing. The administrative law judge denied all of these requests. Only case #1500 is before us, and the following is a synopsis of the recent activity relevant to the current appeal.
On October 19, 2001, the administrative law judge issued an Order to Show Cause Why This Proceeding Should Not Be Suspended Until Such Time As The Claimant Obtains Representation From A Licensed Attorney. In that order, the administrative law judge presented the procedural history of the case, including a thorough description of the motions and orders filed, noted warnings he gave claimant to refrain from continued "misrepresentations and dilatory tactics," including the filing of frivolous complaints, the making of false representations, and the failure to follow orders and submit documents, and he observed that, despite all the warnings, claimant's behavior did not change. Order at 4-14. Thus, the administrative law judge directed claimant to show why all further proceedings in case #1500 should not be suspended until he obtains a licensed legal representative.
On October 29, 2001, the administrative law judge sought the opinion of the Director, Office of Workers' Compensation Programs (the Director), regarding the authority of administrative law judges to issue sanctions. The Director stated that claimant's infractions fall within the purview of Section 27(b) of the Act, 33 U.S.C. §927(b), and that the administrative law judge must certify the facts to the district court, which is authorized to issue appropriate sanctions. Order to Suspend at 3-4. On January 9, 2002, the administrative law judge issued an Order Concerning Proposed Imposition of Sanctions.[3] Therein, the administrative law judge ordered claimant to sign medical releases, highlighted new misrepresentations and unjustified assertions made by claimant, and stated that claimant's medical condition is the only possible valid reason for not imposing sanctions. Order at 7-8. The administrative law judge also questioned claimant's ability to continue representing himself, and he rejected claimant's assertion that he has a constitutional right to represent himself. Order at 9 n.5 (citing Iannaccone v. Law, 142 F.3d 553, 556 (2d Cir. 1998)). After addressing each party's contentions, the administrative law judge concluded that if sanctions are to be imposed they must be imposed by the district court, and he sought to commence the certification process, leaving it for employer and the Director to decide which of them would assume the responsibility. Order at 6-12.[4]
Thereafter, the administrative law judge determined that he has the authority to issue civil sanctions against a disruptive party. Consequently, on April 9, 2002, he issued an Order to Show Cause Why It Should Not Be Decided That Administrative Law Judges Have Authority to Impose Civil Sanctions in Longshore and Harbor Workers' Compensation Act Proceedings. In this order, the administrative law judge reviewed the history of this case and discussed his interpretation of Section 27(b). Specifically, the administrative law judge provided five reasons for concluding he has the authority to issue a civil sanction.[5] Order at 4-8.
Following the parties' timely responses to the show cause order, on May 20, 2002, the administrative law judge issued the Order Suspending Proceeding Until Such Time As The Claimant Obtains Representation From A Licensed Attorney (hereinafter the Order to Suspend) that is now before us. In the Order to Suspend, the administrative law judge summarized the case history, and he addressed the parties' arguments concerning his sanction-wielding authority, noting that the Director did not address the five reasons set forth in the April 9, 2002, Order. Restating these reasons, he concluded that the Director's interpretation of Section 27(b) is not reasonable and is not entitled to deference. He determined he has the power to issue civil, as opposed to criminal, sanctions for those actions that do not rise to the level of "contempt of court." Order to Suspend at 5-10. Determining that dismissal is not warranted, he denied employer's motion to dismiss. The administrative law judge then addressed and rejected claimant's assertions, and he explained that the sanction is based solely on claimant's behavior in case #1500 and not on his actions in the Tenth Circuit or in case #1504.[6] Consequently, the administrative law judge suspended the proceedings until such time as claimant obtains licensed legal representation. Order to Suspend at 10-12.
Claimant appeals the administrative law judge's Order to Suspend. Employer responds, urging the Board to hold that the administrative law judge retains the authority to sanction claimant's misconduct. The Director responds, contending that Section 27(b) of the Act provides the only remedy for claimant's refusal to comply with the administrative law judge's orders. In an Order dated October 18, 2002, the Board stated that claimant's appeal is interlocutory but, nevertheless, satisfies the requirements of the collateral order doctrine, and that circumstances make it necessary for the Board to direct the course of the adjudicatory process of this case. BRB No. 02-612 (Oct. 18, 2002). Accordingly, the Board granted claimant's appeal, rejected employer's motion to dismiss the appeal, and denied claimant's motions for en banc review, expedited review, and oral argument. Id. at 4-5. We now address the merits of the appeal.
Claimant contends the administrative law judge violated his constitutional right to self-representation by suspending the proceedings until he obtains licensed legal representation. While asserting that claimant should be sanctioned for his behavior, employer agrees with claimant that it was improper for the administrative law judge to require claimant to retain counsel. The Director did not address the propriety of the administrative law judge's specific action because he believes Section 27(b) precludes the administrative law judge from issuing any type of sanction.
The administrative law judge rejected claimant's constitutional argument in one of his earlier orders. As he correctly stated, claimants in civil cases do not have a constitutional right to self-representation. The constitutional right to self-representation applies only to criminal cases. Andrews v. Bechtel Power Corp., 780 F.2d 124 (1st Cir. 1985); O'Reilly v. New York Times Co., 692 F.2d 863 (2d Cir. 1982). Civil litigants do,...
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