No. 99-1342
In the Supreme Court of the United States
GEORGE HILL, PETITIONER
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, ET AL.
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
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
HENRY L. SOLANO
Solicitor
NATHANIEL I. SPILLER
Deputy Associate Solicitor
ELIZABETH HOPKINS
Attorney
Department of Labor
Washington, D.C. 20210
QUESTION PRESENTED
Whether a claim for state workers' compensation benefits that is dismissed
on the ground that it was untimely filed under state law tolls the statute
of limitations for filing a claim for benefits under the Longshore and Harbor
Workers' Compensation Act.
In the Supreme Court of the United States
No. 99-1342
GEORGE HILL, PETITIONER
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, ET AL.
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
OPINIONS BELOW
The judgment of the court of appeals (Pet. App. 1a-9a) is reported at 195
F.3d 790. The decision and order of the Benefits Review Board (Pet. App.
10a-30a), and the decision and order of the administrative law judge (Pet.
App. 31a-76a) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on November 10, 1999. The
petition for writ of certiorari was filed on February 8, 2000. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. This case involves a claim for benefits under the Longshore and Harbor
Workers' Compensation Act (LHWCA), 33 U.S.C. 901 et seq. Pet. App. 32a.
Petitioner injured his back on October 1, 1980, while working as a sandblaster
for Avondale Shipyards, Inc. (Avondale). Id. at 2a, 11a. After receiving
disability benefits from Avondale for one week, petitioner returned to his
sandblasting position. Ibid. In mid-November 1980, Avondale transferred
petitioner to a position in which he performed crane hooking. He remained
at that position until he was laid off in March 1983. Id. at 2a-3a, 11a.
In August 1983, petitioner was diagnosed as having two bulging discs. He
underwent corrective surgery to alleviate that condition in late 1983 and
again in 1995. Id. at 3a, 11a-12a.
On February 21, 1984, petitioner filed a claim for benefits under the Louisiana
workers' compensation statute in connection with his disc condition. The
Louisiana state court denied the claim as time-barred under a state-law
provision (La. Rev. Stat. Ann. § 23:1209.A (West 1998)) requiring that
a claim be filed within two years of the "accident." Pet. App.
3a, 8a, 69a. Petitioner appealed, but the state appellate court affirmed.
The Louisiana Supreme Court declined review on October 2, 1992, and denied
reconsideration on November 6, 1992. Id. at 3a.
2. On June 24, 1992, petitioner filed an administrative claim for compensation
under the LHWCA. Pet. App. 69a. A hearing was held before a Department of
Labor Administrative Law Judge (ALJ), who issued a decision and order on
July 2, 1997, denying compensation benefits but granting medical benefits.
Id. at 75a.1
The Benefits Review Board (the Board) affirmed.2 Pet. App. 10a-30a. The
Board held that, while the filing of a timely state claim for workers' compensation
tolls the one-year statute of limitations for filing a claim under the LHWCA,
the filing of an untimely state claim does not. Id. at 22a The Board acknowledged
that prior decisions applying the LHWCA had indicated that the pendency
of another claim tolls the statute of limitations under the LHWCA, id. at
20a-22a (citing Ingalls Shipbuilding Div., Litton Sys., Inc. v. Hollinhead,
571 F.2d 272 (5th Cir. 1978) (per curiam), and Calloway v. Zigler Shipyards,
Inc., 16 Ben. Rev. Bd. Serv. (MB) 175 (1984)), but it distinguished those
cases as not addressing state claims that are untimely under state law.
Id. at 22a. The Board further noted that in this case, twelve years had
elapsed between the date of the accident and the date on which petitioner
filed his LHWCA claim. Id. at 23a. Reasoning that Avondale would be substantially
disadvantaged by having to defend against a "stale claim," the
Board agreed with the ALJ that it would be "illogical to allow an untimely
filed state claim to toll the time for filing a claim under the Act."
Id. at 23a-24a. "To hold otherwise," the Board concluded, "would
not only defeat the purpose for establishing statutes of limitations but
would reward [petitioner] for filing two delinquent claims." Id. at
24a.
3. The court of appeals affirmed. Pet. App. 1a-9a. Like the Board, the court
of appeals distinguished this case from its prior decision in Hollinhead.
The court explained that the issue in Hollinhead was not whether an untimely
state claim triggers the tolling provision, but whether a state workers'
compensation claim is a suit "at law or in admiralty to recover damages"
within the meaning of Section 13(d) of the LHWCA, 33 U.S.C. 913(d). Pet.
App. 5a. Similarly, the court distinguished the Board's decision in Calloway,
which likewise involved a timely predicate suit under the Jones Act Id.
at 5a-6a. In contrast to those cases, the court reasoned that "[t]o
allow [petitioner's] untimely LHWCA claim to piggy-back on a prior stale
claim would be an abuse of § 913(d)'s tolling provision and would subvert
the purpose of statutes of limitation[s] * * * to provide fairness to defendants
and to afford plaintiffs a reasonable period of time within which to present
their claims." Id. at 6a (citation omitted). And the court agreed with
the Board that to allow petitioner's LHWCA claim to proceed when he initiated
it so many years after the date of his injury would put Avondale at a "substantial
disadvantage," given that "Avondale merely had to concern itself
with the prescription issue in state court, rather than the merits of Hill's
claim." Id. at 6a-7a. The court therefore held that "an untimely
state law claim cannot toll the statute of limitations for filing a LHWCA
claim." Id. at 7a.3
ARGUMENT
The decision of the court of appeals is correct and does not conflict with
any decision of this Court or any other court of appeals. Further review
is therefore not warranted.
1. Section 13(a) of the LHWCA, 33 U.S.C. 913(a), provides that a claim for
compensation benefits under the LHWCA must be filed within one year of the
injury or the date of the last payment that the employer makes without an
award. The one-year time limitation does not begin to run, however, until
the claimant becomes aware, or should have become aware, "of the relationship
between the injury or death and the employment." Ibid.; see Marathon
Oil Co. v. Lunsford, 733 F.2d 1139, 1141 (5th Cir. 1984) (date of awareness
is when claimant "know[s] (or should know) the true nature of his condition").
Section 13(d), 33 U.S.C. 913(d), sets forth a tolling provision:
Where recovery is denied to any person, in a suit brought at law or in admiralty
to recover damages in respect of injury or death, on the ground that such
person was an employee and that the defendant was an employer within the
meaning of this chapter and that such employer had secured compensation
to such employee under this chapter, the limitation of time prescribed in
subsection (a) of this section shall begin to run only from the date of
termination of such suit.
That provision does not apply here.
By its terms, Section 13(d)'s tolling provision applies where two requirements
are met: (1) a claimant brings suit at law or in admiralty to recover damages
for injury or death; and (2) recovery in that suit is denied because the
parties were covered under the Longshore Act and the employer was insured
under it. The first requirement is met where, as here, a claimant brings
a state workers' compensation claim. 20 C.F.R. 702.222(b); see also Hollinhead,
571 F.2d at 273-274. But the second requirement clearly is not met in this
case. The state court dismissed petitioner's state claim not because it
concluded that the LHWCA provides the only available remedy,4 but because
petitioner's claim was untimely under state law. See Pet. App. 3a. Thus,
Section 13(d) does not apply here, and the one-year limitations period set
out in Section 13(a) was not tolled by the filing of petitioner's untimely
state claim. Because petitioner's LHWCA claim was filed over eight years
after petitioner's back condition was first diagnosed, the court of appeals
correctly affirmed the denial of that claim as untimely.5
2. Petitioner contends (Pet. 6) that the court of appeals "violated
Mr. Hill's due process and constitutional rights by fundamentally changing
the law." He asserts first that the Fifth Circuit's decision in Hollinhead
and the Board's decision in Calloway held that the filing of a state workers'
compensation claim tolls the federal limitations period during the pendency
of that claim without regard to the reason it is ultimately dismissed. He
then argues that in departing from the holdings of those cases, the court
of appeals "profoundly altered the law * * * and thereby severely prejudiced
[petitioner]." Ibid. Petitioner further argues (Pet. 6-7) that because
he filed his state claim within the federal one-year filing period set forth
in Section 13(a), the court of appeals in effect held that "if the
applicable state workers' compensation scheme provides a shorter time limitation
for filing a claim than the LHWCA does, then the shorter period controls
the LHWCA statute of limitations." That interpretation, petitioner
asserts, will lead to inconsistent results depending upon the state in which
the shipyard is located, and will sometimes, as in this case, result in
the denial of benefits to a worker with an otherwise meritorious claim.
Pet. 7. Petitioner's argument is unavailing.
Petitioner's reliance on Hollinhead and Calloway is misplaced. As the court
of appeals in this case explained (Pet. App. 5a), the precise issue in Hollinhead
was whether the filing of a state workers' compensation claim constitutes
a claim for damages "at law or in admiralty," within the meaning
of Section 13(d). See Hollinhead, 571 F.2d at 274. The Fifth Circuit in
that case did not address Section 13(d)'s "grounds of dismissal"
limitation at all. Hollinhead did, however, state that under Section 13(d),
"the filing of a claim under the Mississippi Workmen's Compensation
Act tolls" the LHWCA's one-year limitations period. Id. at 272. Seizing
on that broad language, the Board in Calloway relied on Hollinhead for the
proposition that the mere filing of a claim for damages tolls the statute
of limitations, without regard to the grounds on which that claim is later
dismissed. 16 Ben. Rev. Bd. Serv. at 177. That part of Calloway, however,
was mere dicta: Calloway did not involve an untimely state claim, but rather
a claim under the Jones Act (46 U.S.C. 688) that was dismissed because the
claimant was not a statutory "seaman" and was therefore covered
only under the LHWCA. See 16 Ben. Rev. Bd. Serv. at 176.6 Moreover, the
Board in Calloway simply ignored the text of Section 13(d), which expressly
limits its tolling provision to situations in which the alternative claim
was denied because the parties are covered and insured under the LHWCA.
Petitioner cites no case supporting the proposition that he had a constitutional
right to rely on the Board's inadequately reasoned dicta in Calloway, which
had little basis in Hollinhead and simply ignored the plain language of
Section 13(d).
Finally, far from making the appropriate limitations period depend on where
the claim is filed, the decision below requires the consistent dismissal
of any LHWCA claim that is untimely under Section 13(a) if it was preceded
by a state workers' compensation claim that was dismissed as untimely. The
denial of petitioner's claim because of its untimeliness is not a harsh
or incongruous result, but rather the necessary result of Congress's specific
decision to toll the statute of limitations only under certain limited conditions
clearly specified by statute.
CONCLUSION
The petition for writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
HENRY L. SOLANO
Solicitor
NATHANIEL I. SPILLER
Deputy Associate Solicitor
ELIZABETH HOPKINS
Attorney
Department of Labor
MAY 2000
1 The ALJ based its decision regarding compensation benefits on three findings:
(1) that petitioner's time for filing a claim under the LHWCA began to run
when his disc condition was first diagnosed on August 23, 1983 (Pet. App.
68a); (2) that the statute of limitations for filing an LHWCA claim was
tolled by Section 13(d) of the Act (33 U.S.C. 913(d)) during the pendency
of petitioner's state claim (Pet. App. 68a-69a); and (3) that petitioner
waited eight and one-half months after the completion of his state case
before he filed his LHWCA claim, bringing the total elapsed time for statute
of limitations purposes to more than the permissible one year. Id. at 69a-70a.
2 In affirming, the Board rejected much of the ALJ's reasoning. The Board
held that if petitioner's state claim had been timely filed, then under
Section 913(d) of the LHWCA, 33 U.S.C. 913(d), the statute of limitations
would not have begun to run until the completion of petitioner's state case.
Thus, it reasoned, the ALJ was incorrect to hold that six months of the
LHWCA's limitations period had run before petitioner filed his state claim.
Pet. App. 20a. Moreover, the Board found that petitioner had not in fact
waited eight and one-half months after the completion of his state case
before filing his LHWCA claim. The Louisiana Supreme Court denied review
of petitioner's state-law claim on October 2, 1992 (three and one-half months
after petitioner filed his LHWCA claim), not, as the ALJ had thought, on
October 2, 1991. Id. at 19a. Thus, because the Board rejected the ALJ's
reasoning, it is the Board's decision-and the court of appeals' affirmance
of it-that is at issue here.
3 The court also denied petitioner's request for modification of the attorneys'
fees and costs, which the ALJ, in a supplemental decision and order, had
awarded based on petitioner's success in obtaining medical benefits. Pet.
App. 7a-8a, 24a. Petitioner sought review of the ALJ's substantial reduction
in the number of hours he had claimed as compensable under the Act's fee
provision. Id. at 7a. Noting that the ALJ reduced the amount of attorneys'
fees primarily because petitioner was not successful in his main claim for
compensation benefits, the court affirmed the award of fees as within the
discretionary authority of the ALJ. Id. at 7a- 8a. Petitioner has not raised
that issue before this Court.
4 Louisiana law contains a provision directing dismissal of cases fitting
that description (see La. Rev. Stat. Ann. § 23:1035.2 (West 1998)),
but the state court did not apply that provision to this case.
5 The court's discussion of the staleness of petitioner's claim and the
unfairness to Avondale of permitting the LHWCA claim to proceed was unnecessary
to its decision. We agree with petitioner (Pet. 8) that the record does
not support a finding that Avondale would have been prejudiced by the delay
had petitioner's LHWCA claim been allowed to proceed. But because that claim
was untimely, the court's discussion of that point has no bearing on the
correctness of the decision below.
6 Cf. Southwest Marine v. Gizoni, 502 U.S. 81, 90 (1991) (in providing the
tolling provision in Section 13(d), Congress anticipated that claimants
would file LHWCA claims after unsuccessfully asserting "seaman"
status under the Jones Act).