No. 98-1276
In the Supreme Court of the United States
OCTOBER TERM, 1998
ALUMINUM COMPANY OF AMERICA, PETITIONER
v.
ESTHER JONES, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENT
IN OPPOSITION
HENRY L. SOLANO
Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor
NATHANIEL I. SPILLER
Deputy Associate
Solicitor
GARY K. STEARMAN
Attorney
Department of Labor
Washington, D.C. 20210
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether an order of the Benefits Review Board that resolves one issue and
remands to an administrative law judge for resolution of the remaining issues
is a "final order" that may be reviewed by a court of appeals
under Section 21(c) of the Longshore and Harbor Workers' Compensation Act,
33 U.S.C. 921(c).
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-1276
ALUMINUM COMPANY OF AMERICA, PETITIONER
v.
ESTHER JONES, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENT
IN OPPOSITION
OPINIONS BELOW
The order of the court of appeals dismissing the appeal for lack of jurisdiction
(Pet. App. 3a) is not reported. The decision and order of the Benefits Review
Board (Pet. App. 4a-15a) is reported at 31 Ben. Rev. Bd. Serv. (MB) 130.
The decision and order of the administrative law judge (Pet. App. 16a-24a)
is reported at 30 Ben. Rev. Bd. Serv. (MB) 741.
JURISDICTION
The judgment of the court of appeals was entered on April 30, 1998. A petition
for rehearing was denied on November 12, 1998. Pet. App. 1a-2a. The petition
for a writ of certiorari was filed on February 9, 1999. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. The Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.
901 et seq., provides compensation for work-related injuries that result
in the disability or death of covered employees. 33 U.S.C. 908, 909. To
be covered under the LHWCA, an injured employee must meet two requirements.
The first, the status requirement, is that the employee was engaged in maritime
employment. 33 U.S.C. 902(3). The second, the situs requirement, is that
the injury occurred upon the navigable waters of the United States, defined
by the LHWCA to include certain areas adjoining navigable waters. 33 U.S.C.
903(a).
Claims are decided by deputy commissioners appointed by the Secretary of
Labor. 33 U.S.C. 919(a), 940 (now called district directors, see 20 C.F.R.
701.301(7)). Upon the request of an interested party, however, the deputy
commissioner must order a hearing before an administrative law judge (ALJ)
to decide a disputed claim. 33 U.S.C. 919(c) and (d). An ALJ's decision
may be appealed to the Benefits Review Board, a tribunal within the Department
of Labor. 33 U.S.C. 921(b). "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." 33 U.S.C. 921(c).
2. From 1972 through 1980, petitioner Aluminum Company of America employed
Charles Jones, Jr., deceased husband of respondent Esther Jones. Pet. App.
5a, 17a. Mr. Jones worked as a millwright welder and general mechanic at
petitioner's plant on the Mobile River, a navigable waterway. Id. at 17a.
Among other job duties, Mr. Jones repaired and maintained petitioner's conveyor
belts, which transported bauxite from a conveyor belt at the Alabama state
docks to storage buildings in petitioner's dockside manufacturing plant.
Id. at 7a-8a, 21a.
In 1994, Mrs. Jones filed a claim for death benefits under the LHWCA, 33
U.S.C. 909, which petitioner contested. Pet. 4. In the administrative proceeding
before the ALJ, the parties disputed whether Mr. Jones satisfied the situs
and status requirements; whether he had asbestosis; whether the asbestosis,
if present, was related to asbestos exposure with petitioner; whether the
asbestosis played a part in his fatal lung cancer; and whether petitioner
was entitled to second injury relief under the Act, 33 U.S.C. 908(f). Pet.
App. 17a-18a. Addressing the status issue only, the ALJ ruled that Mr. Jones
did not satisfy the status requirement and denied the claim. Id. at 24a.
Given his determination on that issue, the ALJ concluded that the "other
considerations" in the case were "moot." Ibid.
Relying in large part on Chesapeake & Ohio Railway v. Schwalb, 493 U.S.
40 (1989), the Benefits Review Board reversed the ALJ's status determination
and vacated his Decision and Order. Pet. App. 4a-15a. The Board remanded
the case for resolution of the remaining factual and legal issues. Id. at
14a.
Petitioner appealed to the United States Court of Appeals for the Eleventh
Circuit. In dismissing the petition for review, the court held that the
Board's order remanding the case for further proceedings before the ALJ
was not a final order, and, therefore, the court lacked jurisdiction to
review the case under 33 U.S.C. 921(c). Pet. App. 3a. The court subsequently
denied petitioner's request for rehearing. Id. at 1a.
ARGUMENT
The court of appeals correctly dismissed petitioner's appeal for lack of
jurisdiction under 33 U.S.C. 921(c). That section permits court of appeals
review of a "final order of the Board." The Board's remand order
here did not end the dispute on the merits and thus is not a final order.
The court's dismissal is consistent with a long line of court of appeals
decisions and does not conflict with any decision of this Court. Further
review is therefore not warranted.
1. The LHWCA provides that "[a]ny 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." 33 U.S.C. 921(c). The courts of appeals have
consistently held that the LHWCA's finality requirement mirrors the finality
requirement of 28 U.S.C. 1291, which provides that "[t]he courts of
appeals * * * shall have jurisdiction of appeals from all final decisions
of the district courts." See, e.g., Bish v. Brady-Hamilton Stevedore
Co., 880 F.2d 1135, 1137 (9th Cir. 1989); Director, OWCP v. Bath Iron Works
Corp., 853 F.2d 11, 13 (1st Cir. 1988); Youghiogheny & Ohio Coal Co.
v. Baker, 815 F.2d 422, 424 n.2 (6th Cir. 1987); Newpark Shipbuilding &
Repair, Inc. v. Roundtree, 723 F.2d 399, 400 (5th Cir.) (en banc), cert.
denied, 469 U.S. 818 (1984); Freeman United Coal Mining Co. v. Director,
OWCP, 721 F.2d 629, 630 (7th Cir. 1983); Newport News Shipbuilding &
Dry Dock Co. v. Director, OWCP, 590 F.2d 1267, 1268 (4th Cir. 1978); Sun
Shipbuilding & Dry Dock Co. v. Benefits Review Bd., 535 F.2d 758, 760
(3d Cir. 1976) (per curiam); see also Redden v. Director, OWCP, 825 F.2d
337, 338 (11th Cir. 1987) (per curiam); WMATA v. Director, OWCP, 824 F.2d
94, 95 (D.C. Cir. 1987) (per curiam).
"[A] decision is ordinarily considered final and appealable under §
1291 only if it 'ends the litigation on the merits and leaves nothing for
the court to do but execute the judgment.'" Quackenbush v. Allstate
Ins. Co., 517 U.S. 706, 712 (1996) (citations omitted); accord Newpark Shipbuilding,
723 F.2d at 400, 404, 406 (applying this "well-settled general rule"
to LHWCA appeal). Conversely, "an order remanding a LHWCA claim to
an ALJ for further findings is not, in general, immediately appealable."
Bath Iron Works, 853 F.2d at 16.
As under Section 1291, the purpose of the finality requirement under the
LHWCA is principally the "[a]voidance of the mischief of multiple appeals
in a single litigation." Bath Iron Works, 853 F.2d at 13. Applying
that finality principle, the courts of appeals have routinely dismissed
petitions for review of Board orders remanding to the administrative law
judge (ALJ) for further proceedings, because the orders "did not close
out the case[s] * * * [but] contemplated that something further needed to
be done." Bath Iron Works, 853 F.2d at 14.
2. a. Under Section 1291, a party may also immediately appeal from "a
narrow class of collateral orders which * * * 'conclusively determine [a]
disputed question' that is 'completely separate from the merits of the action,'
'effectively unreviewable on appeal from a final judgment,' and 'too important
to be denied review.'" Quackenbush, 517 U.S. at 712 (citations omitted);
see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). Several
courts of appeals have recognized that the collateral order exception could
apply to an appeal of a Board order under Section 921(c) in an appropriate
case. See Bish, 880 F.2d at 1137-1138; Bath Iron Works, 853 F.2d at 13 n.4,
15; Redden, 825 F.2d at 338; WMATA, 824 F.2d at 95-96; Newport News, 590
F.2d at 1268; Sun Shipbuilding, 535 F.2d at 760-761. None has found immediate
review appropriate, however, when issues of liability or damages remain
to be decided, because "[a]dditional legal issues may arise on the
remand to the administrative law judge, and no rights to review will be
lost by [the appellant] if it must first litigate the [remand] issue[s]
* * * before the administrative agency." Sun Shipbuilding, 535 F.2d
at 761. In those cases, "[j]udicial economy, the interest underlying
the finality rule, will be better served by postponing review" until
all issues in the case have been adjudicated. Ibid.
b. The Board order here is a typical remand order that does not qualify
for the collateral order exception. Although the Board decided the status
issue, other issues that may be determinative of the outcome in the case
(and thus render review of the status issue in the court of appeals unnecessary)
remain unresolved and require fact-finding by the ALJ. Pet. App. 14a, 17a-18a,
24a. Also, the status issue is a fundamental part of the underlying claim-i.e.,
whether LHWCA coverage is available-and is subject to review on appeal of
the ALJ's final decision. See, e.g., Herb's Welding, Inc. v. Gray, 470 U.S.
414 (1985) (reversing lower court status findings). The court below, therefore,
correctly applied the well established rule for judging the finality of
Board orders. Review of the court's application of that rule to the particular
circumstances of this case is not warranted.
c. Contrary to the well established rule applied by the court of appeals,
petitioner appears to advocate a standard that would permit court of appeals
review of any interlocutory Board order that either conclusively resolves
an important legal issue (Pet. 17) or is alleged to exceed the Board's scope
of review (id. at 15). Petitioner's standard would encompass most, if not
all, Board remands. For example, almost any appeal may be framed as a contention
that the Board exceeded the substantial evidence scope of review. See 33
U.S.C. 921(b)(3). As a result, the workload of the courts of appeals would
greatly increase as they considered "appeals that, had the trial simply
proceeded, would have turned out to be unnecessary." Johnson v. Jones,
515 U.S. 304, 309 (1995). More fundamentally, the recommended standard,
lacking any meaningful limitation, conflicts with the plain language of
the statute, which restricts review to "final" Board orders. See
Bath Iron Works, 853 F.2d at 13 ("No matter how tantalizing a problem
may be, a federal appellate court cannot scratch intellectual itches unless
it has jurisdiction to reach them. And in this instance, we are persuaded
that jurisdictional constraints foreclose us from inquiring, here and now,
into the merits."); cf. Bish, 880 F.2d at 1138 ("pragmatic finality
test" inapplicable to LHWCA because 33 U.S.C. 921(c) does not include
analog to interlocutory review under 28 U.S.C. 1292(b)); Newpark Shipbuilding,
723 F.2d at 407 (overruling circuit precedent that had adopted pragmatic
finality test in LHWCA case).
d. The cases that petitioner cites as conflicting with the decision of the
court of appeals in this case (Pet. 14-15) are fully consistent with that
decision. Both Sea-Land Service, Inc. v. Director, OWCP, 540 F.2d 629 (3d
Cir. 1976), and St. Louis Shipbuilding & Steel Co. v. Casteel, 583 F.2d
876 (8th Cir. 1978), involved Board remand orders that required only the
mechanical or ministerial computation of the amount of benefits due. See
United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 233 (1958)
(judgment that specifies the means for determining the amount of damages
is final); Goodwin v. United States, 67 F.3d 149, 151 (8th Cir. 1995) ("judgment
may be final 'if only ministerial tasks in determining damages remain'")
(citation omitted); Turner v. Orr, 759 F.2d 817, 820 (11th Cir. 1985) (same),
cert. denied, 478 U.S. 1020 (1986). By contrast, in LHWCA cases in which
liability has been found but the amount of damages remains in dispute pending
a remand, the courts of appeals have consistently denied review of the Board
decision. See WMATA, 824 F.2d at 95; Jacksonville Shipyards, Inc. v. Estate
of Verderane, 729 F.2d 726 (11th Cir. 1984) (per curiam); Sun Shipbuilding,
535 F.2d at 760. And, here, whether petitioner will ultimately be liable
at all depends on further fact-finding on remand.
Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 944 (5th Cir. 1991)
(cited by petitioner at Pet. 15-16), is not only consistent with the decision
of the court of appeals in this case but demonstrates why judicial review
of the status issue is unnecessary at this time. In Mijangos, the Board
reversed an ALJ decision and remanded to the ALJ, who made additional findings
of fact and issued a second order, which the Board then affirmed. On appeal,
the Fifth Circuit reviewed the Board's remand, found it erroneous, and reinstated
the ALJ's original decision. In so doing, the court of appeals reasoned
that Section 10(c) of the Administrative Procedure Act (recodified at 5
U.S.C. 704), logic, and due process necessitate review of interlocutory
Board orders when a party seeks judicial review after issuance of a final
order. Accord Van Dyke v. Missouri Mining, Inc., 78 F.3d 362, 365 (8th Cir.
1996); Burns v. Director, OWCP, 41 F.3d 1555, 1561-1562 (D.C. Cir. 1994);
Sun Shipbuilding, 535 F.2d at 761 n.10. That rule comports with the more
general one that "a party is entitled to a single appeal, to be deferred
until final judgment has been entered, in which claims of district court
error at any stage of the litigation may be ventilated." Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994) (citations omitted);
cf. 5 U.S.C. 704 ("A preliminary, procedural, or intermediate agency
action or ruling not directly reviewable is subject to review on the review
of the final agency action."). The proposition that an interlocutory
order may be reviewed following issuance of a final order and invocation
of court of appeals jurisdiction is, of course, far different from the one
petitioner urges here-that an interlocutory order may be reviewed before
a final order has issued. Indeed, the fact that review of the Board's interlocutory
decision on the status issue will be available once there is a final order
in this case explains precisely why there is no need for immediate review
of the interlocutory order.
3. This Court lacks jurisdiction over the other issues raised by petitioner
because the court of appeals correctly held that it lacked jurisdiction
over petitioner's appeal. See Steel Co. v. Citizens for a Better Env't,
118 S. Ct. 1003, 1012-1013 (1998). Even if this Court had jurisdiction,
the Court ordinarily would not pass in the first instance on issues that
were not decided by the court of appeals. See, e.g., Puerto Rico Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 141 n.1 (1993).
In any event, the other issues that petitioner presses concern the Board's
resolution of the status question (see Pet. i-ii, 17-22), which closely
resembles the question this Court decided in Chesapeake & Ohio Railway
v. Schwalb, 493 U.S. 40 (1989). The Court's review of that highly fact-bound
question as applied to the facts of this case is not warranted.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
HENRY L. SOLANO
Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor
NATHANIEL I. SPILLER
Deputy Associate
Solicitor
GARY K. STEARMAN
Attorney
Department of Labor
SETH P. WAXMAN
Solicitor General
APRIL 1999