TIDELAND WELDING SERVICE, ET AL., PETITIONERS V. WALTER SAWYER, ET AL. No. 89-960 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The Federal Respondent In Opposition TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. B1-B21) is reported at 881 F.2d 157. The opinions and orders of the Benefits Review Board (Pet. App. A1-A6; App., infra, 1a-2a, 3a-8a) are unreported. JURISDICTION The judgment of the court of appeals was entered on August 24, 1989. A petition for rehearing was denied on September 18, 1989. Pet. App. C1-C2. The petition for a writ of certiorari was filed on December 14, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, on a petition for review of the Benefits Review Board's decision awarding compensation to two employees under the Longshore and Harbor Workers' Compensation Act, the court of appeals properly dismissed the petition on the ground that the Board lacked jurisdiction over petitioners' appeal from the decision of the administrative law judge. STATEMENT 1. In 1980, petitioner Tideland Welding Service employed Walter Sawyer and Glynn Rhodes as welders at a shipyard in Morgan City, Louisiana. After leaving work on June 21, 1980, Sawyer and Rhodes were injured in a car accident. Sawyer and Rhodes later filed claims for compensation with the Director, Office of Workers' Compensation Programs, United States Department of Labor (Director), under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. 901 et seq. Sawyer and Rhodes sought compensation from petitioner Tideland Welding Service and its insurer, petitioner Liberty Mutual Insurance Company. After a hearing, an administrative law judge denied those claims in December 1982, concluding that "the place where the accident occurred did not constitute a maritime situs and that (Sawyer and Rhodes) were not in the course o(f) their employment at the time of the accident." Pet. App. B4. In May 1984, the Benefits Review Board reversed that decision, concluding that Sawyer and Rhodes should be compensated. The Board therefore remanded the case to the ALJ "to determine the measure of compensation." Pet. App. B4. Petitioners filed an appeal from the Board's decision to the Fifth Circuit. The court of appeals dismissed that appeal on the ground that the Board's decision was not a final order subject to appellate review. Id. at B5-B6. 2. On November 25, 1986, the ALJ issued his decision on remand, awarding weekly benefits of $376 to Sawyer and $270 to Rhodes. Because petitioner Liberty Mutual had not paid either claimant any benefits since the date of the accident, the ALJ also ordered Liberty Mutual to pay Sawyer $100,000 and Rhodes $30,000 by December 6, 1986. Pet. App. B5. On December 3, petitioners asked the Benefits Review Board to stay the ALJ's award. On December 5, Sawyer and Rhodes filed a motion for reconsideration before the ALJ. Id. at B5-B6, B8. On December 8, 1986, the Board, construing petitioners' request for a stay as both a notice of appeal and a motion to stay, docketed the case for review and denied the stay. /1/ One week later, Sawyer and Rhodes asked the ALJ for permission to withdraw their previously filed reconsideration motion. On January 6, 1987, while that withdrawal request was pending before the ALJ, Sawyer and Rhodes also filed an appeal from the ALJ's decision to the Benefits Review Board. And on January 13, 1987, the ALJ granted the request to withdraw the reconsideration motion. Pet. App. B6-B7. 3.a. In April 1987, the Benefits Review Board dismissed the appeals filed by Sawyer and Rhodes. Pet. App. A1-A6. The Board concluded that those appeals were filed outside the 30-day deadline set forth in 33 U.S.C. 921(a). /2/ "Since claimants withdrew their motion (for reconsideration)," the Board concluded that the motion was "without effect," and could not trigger the tolling provision of 20 C.F.R. 802.205A (a) (1987). Pet. App. A4-A5. /3/ Alternatively, the Board concluded that even if the motion for reconsideration was effective, the appeals were "untimely because (they were) filed prior to the administrative law judge's Order on the Motions." Id. at A5. /4/ b. In March 1988, the Board considered petitioners' appeal and affirmed the ALJ's decision on the merits. App., infra, 3a-8a. The Board reaffirmed its earlier decision, concluding that "the claimants were injured within the scope and course of their employment pursuant to the 'trip payment exception' to the 'coming and going rule,'" and that "claimants were injured on a covered situs." App., infra, 5a. The Board also rejected petitioners' contention that they were "entitled, under the Constitution, to have an Article III court review the Board's Order prior to paying claimants the compensation awarded by the administrative law judge." App., infra, 6a. As the Board stated: (A)lthough it is clear that adjudication of workers' compensation claims under the Act involves "private rights," it is equally clear that Article III of the Constitution does not require Article III judges to perform every stage of adjudication where "private rights" are at stake. App., infra, 8a. c. Petitioners then sought review of the Board's decision in the court of appeals. 4. In August 1989, the court of appeals dismissed the petition for review and vacated the Board's decision, holding that because the Board lacked jurisdiction to consider petitioners' appeal from the ALJ's decision, the court lacked jurisdiction to review. Pet. App. B1-B21. The court first concluded that any appeal of the ALJ's decision filed while a motion for reconsideration was pending was subject to dismissal under the regulations even if the motion was later withdrawn. Id. at B12-B16. /5/ The court then noted that, under the governing regulation, 20 C.F.R. 802.205A(e) (1987), "(f)ollowing final action by the administrative law judge or deputy commissioner (dismissing or granting the motion for reconsideration), a new notice of appeal shall be filed with the Clerk of the Board by any party who wishes to appeal." Pet. App. B16-B17 (brackets in original). Here, the court continued, petitioners "failed to file a new notice of appeal after the ALJ ruled on the motion to withdraw the motion for reconsideration." Id. at B18. Since the court found no distinction in this context between a motion that has been withdrawn and a motion that has been disposed of on the merits, id. at B17, it held that the "Board deviated from (that) regulation() when it found (petitioners') notice of appeal timely," id. at B20-B21. Accordingly, the court vacated the Board's decision and dismissed the case. Id. at B21. ARGUMENT 1. Petitioners contend (Pet. 14-23) that the court of appeals misconstrued the Board's regulations in holding that their failure to file a notice of appeal, after the ALJ had granted the claimants' request to withdraw their reconsideration motion, precluded review of the ALJ's compensation decision. Under those regulations, which implement the statutory 30-day deadline for review of compensation orders (see 33 U.S.C. 921(a)), "(a) timely motion for reconsideration of a decision or order of an administrative law judge * * * shall suspend the running of the time for filing a notice of appeal." 20 C.F.R. 802.205A(a) (1987). Those regulations further provide that "(i)f a timely motion for reconsideration * * * 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." 20 C.F.R. 802.205A(e) (1987). And the regulations expressly state that "(f)ollowing final action by the administrative law judge * * * (on a timely motion for reconsideration), a new notice of appeal shall be filed * * * by any party who wishes to appeal." Ibid. As the Board explained over a decade ago, that procedural scheme "provides that a timely motion to reconsider renders an appeal premature and subject to dismissal. * * * (The) appeal time will begin anew upon action by the administrative law judge on a request for reconsideration and the filing of a new notice of appeal." 43 Fed. Reg. 42,144 (1978). In other words, like a premature motion to alter or amend a judgment under Fed. R. Civ. P. 59, a previously filed notice of appeal to the Board, in these circumstances, "simply self destructs." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam) (internal quotation marks omitted). Here, petitioners filed their Board-construed "notice of appeal" two days before the claimants filed their motion for reconsideration before the ALJ. Under the express terms of 20 C.F.R. 805.205A(e) (1987), this attempt to invoke the Board's jurisdiction must fail since the regulation provides that "(i)f a timely motion for reconsideration * * * 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." 20 C.F.R. 802.205A(e) (1987) (emphasis added). In these circumstances, the regulation obligated the Board to dismiss the appeal -- an oversight properly corrected by the court of appeals -- where, as here, petitioners did not file a new notice of appeal "(f)ollowing final action by the administrative law judge." Ibid. See Jones v. Illinois Cent. Gulf R.R., 846 F.2d 1099, 1102 (7th Cir. 1988); cf. ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 284-285 (1987). /6/ 2. Petitioners also contend (Pet. 14, 24-26) that the court of appeals erred in failing to defer to the Board's construction of its regulations. But that contention rests on a false premise since the court of appeals found that the Board did not even identify "the grounds on which the Board found (petitioners') notice of appeal to be timely." Pet. App. B9-B10. In any event, the court "recognize(d) that the rules and regulations of the Board deserve special deference," id. at B18 (citing Jones v. Illinois Cent. Gulf R.R., supra), but also correctly concluded that such deference would not be appropriate where the Board "deviate(d) from its own regulations," Pet. App. B18; cf. Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 278 n.18 (1980). As explained above, the Board's implicit conclusion that petitioners had filed a timely notice of appeal cannot be squared with the plain terms of 20 C.F.R. 802.205A(e) (1987). /7/ Accordingly, the court of appeals properly refused to defer to the Board's unexplained exercise of jurisdiction over petitioners' challenge to the compensation award. See Udall v. Tallman, 380 U.S. 1, 4, 16-17 (1965). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT P. DAVIS Solicitor of Labor ALLEN H. FELDMAN Associate Solicitor NATHANIEL I. SPILLER Senior Appellate Attorney ANNE PAYNE FUGETT Attorney Department of Labor APRIL 1990 /1/ Petitioners had also filed a motion for an emergency stay in the court of appeals, together with a petition for review of the ALJ's decision. The court of appeals initially granted a stay. On June 1, 1987, the court of appeals dissolved that stay and dismissed petitioners' appeal for lack of jurisdiction under 33 U.S.C. 921(c). Pet. App. B6-B7; Tideland Welding Service v. Director, OWCP, 817 F.2d 1211 (5th Cir.). /2/ Section 921(a) provides: A compensation order shall become effective when filed in the office of the deputy commissioner as provided in section 919 of this title, and, unless proceedings for the suspension or setting aside of such order are instituted as provided in subsection (b) of this section, shall become final at the expiration of the thirtieth day thereafter. Section 921(b) provides for review of compensation orders before the Benefits Review Board. 33 U.S.C. 921(b). /3/ 20 C.F.R. 802.205A(a) (1987) provided: 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. As the court of appeals pointed out, see Pet. App. B11 n.2, the pertinent regulations have since been amended in a manner not material to this case. (They have also been redesignated as 20 C.F.R. 802.206.) /4/ In December 1987, the Board denied a motion for reconsideration filed by the Director. App., infra, 1a-2a. /5/ The court of appeals thus expressly disagreed with the Board's alternative ground for dismissing the claimants' appeal -- that a perfected motion for reconsideration that is later withdrawn fails to toll the period for filing a notice of appeal. Pet. App. B14. /6/ Petitioners contend that they were not required to file a new notice of appeal because the ALJ's final decision -- granting the claimants' request to withdraw the reconsideration motion -- does not fall within the terms of 20 C.F.R. 802.205A(c) and (d) (1987). To be sure, those provisions speak of an ALJ's decision either to grant or deny a motion for reconsideration. But as the court of appeals correctly observed (Pet. App. B17-B18), a decision to grant a party's request to withdraw a reconsideration motion is the functional equivalent of the sort of final administrative action contemplated by Section 802.205A(c) and (d). /7/ Petitioners also attempt (Pet. 22) to analogize the Board's treatment of the claimants' withdrawal motion to a motion for voluntary dismissal under Fed. R. Civ. P. 41(a). But that analogy misses the mark. The question whether the running of a statute of limitations is suspended by the pendency of a civil complaint that has been voluntarily dismissed is in no way analogous to the question whether a notice of appeal can be filed during the pendency of a motion for reconsideration that is later withdrawn. Underscoring the difference, Rule 41(a) provides that, in certain circumstances, "an action may be dismissed by the plaintiff without order of court." Fed. R. Civ. P. 41(a). By contrast, a claimant's request to withdraw a reconsideration motion pending before an ALJ is not self-executing. To the contrary, since under the Board's regulations, the filing of a reconsideration motion effectively suspends the finality of the ALJ's decision, see 20 C.F.R. 802.205A(a) (1987), the ALJ is obliged to dispose of that motion in order for the review process to proceed. APPENDIX