Tideland Welding Service v. Sawyer
| Decision Date | 24 August 1989 |
| Docket Number | No. 88-4280,88-4280 |
| Citation | 881 F.2d 157 |
| Parties | TIDELAND WELDING SERVICE and Liberty Mutual Insurance Co., Petitioners, v. Walter SAWYER, Glynn Rhodes and Director, Office of Workers Compensation Programs, U.S. Dept. of Labor, Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kevin R. Tully, Robert E. Peyton, Christovich & Kearney, New Orleans, for petitioners.
Lawrence A. Arcell, Barker, Boudreaux, Lamy & Foley, New Orleans, Joshua T. Gillelan, II, Washington D.C., for respondents.
Linda M. Meekins, Clerk, BRB, Dept. of Labor, Washington, D.C., for other interested parties.
Petition For Review of Orders of the Benefits Review Board.
Before THORNBERRY, WILLIAMS, and DAVIS, Circuit Judges.
The petitioners Tideland Welding Service ("Tideland") and Liberty Mutual Insurance Company ("Liberty Mutual") appeal a Benefits Review Board ("the Board") finding that the respondents Walter Sawyer ("Sawyer") and Glynn Rhodes ("Rhodes") were entitled to compensation under the Longshore and Harbor Workers' Compensation Act (LHWCA).
In 1980, Tideland employed Sawyer and Rhodes as welders assigned to the McDermott Shipyard in Morgan City, Louisiana. On June 21, 1980, Tideland excused the respondents from work early due to heavy rain. While travelling in the same car on U.S. 90, the respondents were injured in a collision, which occurred just under two miles from where they worked.
Sawyer and Rhodes sought compensation pursuant to the LHWCA. The Deputy Commissioner of the Department of Labor denied their claims. An Administrative Law Judge ("the ALJ") later held a full hearing and, in December 1982, found that the place where the accident occurred did not constitute a maritime situs and that the respondents were not in the course of their employment at the time of the accident. Sawyer and Rhodes appealed the ALJ's decision to the Board. In May 1984, the Board reversed the ALJ, finding that the accident occurred on a covered situs and that the respondents were in the course of their employment. The Board remanded the case to the ALJ to determine the measure of compensation to which the respondents were entitled.
Tideland and Liberty Mutual 1 then appealed the Board's decision to this court. We held that the Board's decision was not a final order subject to appellate review.
On November 25, 1986, on remand, the ALJ ruled that Sawyer was entitled to weekly benefits of $376.00 per week and that Rhodes was entitled to benefits of $270.00 per week. Because Liberty Mutual had not paid anything to the respondents since 1983, the ALJ ordered Liberty Mutual to pay Sawyer $100,000 and Rhodes $30,000 by December 6, 1986. These awards represented accrued unpaid periodic compensation.
In early December 1986, Liberty Mutual petitioned the Board to stay the payment of the award. The Board construed the motion as a notice of appeal from the ALJ's November 25, 1986 order and on December 8, 1986 denied the request for a stay.
Between the time Liberty Mutual sent its motion for a stay to the Board and the time the Board acted on the motion, Liberty Mutual filed a motion for an Emergency Stay and a Petition for Review with the Fifth Circuit on the grounds that the ALJ's decision violated the company's due process rights by depriving it of property without a hearing before an Article III court. We granted the Motion for an Emergency Stay, but, later vacated the stay because the Board had not yet issued a final order.
In the meantime, the respondents contested the ALJ's award as inadequate. They initially filed a motion for reconsideration of the award on December 5, 1986, but later withdrew the motion and appealed to the Board on January 6, 1987. The ALJ granted the motion to withdraw on January 13, 1987. In April 1987, the Board dismissed the respondents' appeal as untimely.
The Director of the Office of Workers' Compensation Programs of the Department of Labor ("the Director of the OWCP") then filed a motion for reconsideration with the Board, urging that both the respondents' and Liberty Mutual's notices of appeal were premature. The Board denied the Director of the OWCP's motion and after reviewing Liberty Mutual's appeal affirmed the ALJ's award.
The Director of the OWCP renews his earlier contention that Liberty Mutual's notice of appeal was premature and, accordingly, that the Board should have dismissed the appeal. If the Board erred in hearing Liberty Mutual's appeal, we do not have jurisdiction to review the case. To aid in the review of this issue, we have recited the operative dates:
11/25/86 the ALJ entered a judgment ordering Liberty Mutual to pay the respondents $130,000
12/3/86 Liberty Mutual filed a motion for a stay with the Board
12/5/86 the respondents filed a motion for reconsideration with the ALJ
12/8/86 the Board denied Liberty Mutual's motion for a stay and stated it would consider the motion a notice of appeal
12/15/86 the respondents filed a motion to withdraw their motion for reconsideration
1/6/87 the respondents filed a notice of appeal
1/13/87 the ALJ granted the respondents' motion to withdraw their motion for reconsideration
4/22/87 the Board dismissed the respondents' appeal
Our review is limited to the timeliness of Liberty Mutual's notice of appeal. The Board twice ruled on the timeliness issue. First, in response to the Director of the OWCP's motion for reconsideration, alleging that Liberty Mutual's notice of appeal was untimely, the Board denied the motion without stating its reasoning. Second, the Board ruled that the respondents' notice of appeal was untimely. Although the Board's dismissal of the respondents' appeal is not before us, the reasons the Board gave for dismissing their appeal are relevant to our review of the Board's decision to hear Liberty Mutual's appeal.
Because we do not know the grounds on which the Board found Liberty Mutual's notice of appeal to be timely, we must turn to the applicable statute, the regulations passed pursuant to the statute, and the statements the Board made when reviewing the timeliness of the respondents' notice of appeal to discern the effect of a withdrawal of a motion for reconsideration on the time for filing a notice of appeal.
The statute governing appeals to the Board provides that:
[a] compensation order shall become effective when filed in the office of the deputy commissioner ..., and, unless proceedings for the suspension or setting aside of such order are instituted ..., shall become final at the expiration of the thirtieth day thereafter.
33 U.S.C.A. Sec. 921(a). This statute is jurisdictional and there is no equitable relief available if a party fails to object within the prescribed time period. Townsend v. Director, Office of Workers' Compensation Programs, 743 F.2d 880 (11th Cir.1984).
Pursuant to the above statute, the Board promulgated regulations governing the effect of a motion for reconsideration on the time for filing a notice of appeal. The applicable regulations provide that "[a] timely motion for reconsideration of a decision or order of an administrative law judge or deputy commissioner shall suspend the running of the time for filing a notice of appeal." 20 C.F.R. Sec. 802.205A(a) (1987). 2 The regulation further provides that:
[i]f a timely motion for reconsideration of a decision or order of an administrative law judge or deputy commissioner is filed, any appeal to the Board, whether filed prior to or subsequent to the filing of the timely motion for reconsideration, shall be dismissed as premature. Following final action by the administrative law judge or deputy commissioner ..., a new notice of appeal shall be filed with the Clerk of the Board by any party who wishes to appeal.
20 C.F.R. Sec. 802.205A(e) (1987).
As a preliminary matter, if the respondents had not withdrawn their motion for reconsideration and the ALJ had ruled on the merits of the motion, any notice of appeal filed prior to the judgment on the motion would have been premature. Jones v. Illinois Central Gulf Railroad, 846 F.2d 1099 (7th Cir.1988). In the instant case, the respondents filed a perfected motion for reconsideration and later withdrew it. The issue...
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...tolls the period for filing a notice of appeal until the Board grants the request to withdraw that motion. See Tideland Welding Serv. v. Sawyer, 881 F.2d 157, 160 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1922, 109 L.Ed.2d 286 (1990). We reject Bridger's argument that a Board d......
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