24 Apr 2018

Update from the Benefits Review Board (April 2018)

By Karen Koenig, Associate General Counsel, Longshore Division, Benefits Review Board

BRB Statistical Update

The Board began Fiscal Year (FY) 2018 in October 2017 with 109 pending Longshore/DBA appeals. During the last fiscal year, which ended September 30, 2017, the Board received 183 appeals in cases under the Longshore and Defense Base Acts, 13 more than FY16. The Board issued 175 decisions, 12 more than FY16; orders on reconsideration were issued in 21 cases. In FY17, the Courts of Appeals issued decisions or orders in 24 appeals of the Board’s Longshore/DBA decisions, and the Board received an affirmative disposition in 96 percent of these cases.

As of April 1, 2018, the Board has approximately 108 pending Longshore appeals, a figure which includes 32 appeals under the DBA. This fiscal year to date, the Board has received 83 Longshore/DBA appeals and issued 85 final decisions or orders. If the six month appeal rate holds, the Board will receive fewer appeals this fiscal year than last. In addition, the Board has issued orders on reconsideration in seven cases this year. The Board has received 15 decisions or orders from appellate courts, with an 80 percent positive rate. The Board also has approximately 430 pending Black Lung appeals.

Shah v. Worldwide Language Resources, Inc., 703 F. App’x 624, 51 BRBS 37(CRT) (9th Cir. 2017)

In November 2017, the United States Court of Appeals for the Ninth Circuit issued an unpublished decision in Shah v. Worldwide Language Resources, Inc., 703 F. App’x 624, 51 BRBS 37(CRT) (9th Cir. 2017), reversing the Board’s dismissal of an appeal as untimely filed. In Shah, the Administrative Law Judge awarded claimant’s counsel an attorney’s fee. The Attorney Fee Order was filed by the District Director on May 14, 2015. Claimant’s counsel filed a motion for reconsideration, which was dated June 1, 2015 and received by the Office of Administrative Law Judges on June 4, 2015. In summarily denying the motion for reconsideration, the Administrative Law Judge did not address employer’s contention that the motion had been untimely filed. The Order Denying Reconsideration was filed by the District Director on June 19, 2015.

Claimant’s counsel appealed the Administrative Law Judge’s Attorney Fee Order, as well as the District Director’s fee award, to the Board on June 22, 2015. The Board dismissed claimant’s appeal of the Administrative Law Judge’s fee award as untimely filed. Specifically, claimant’s motion for reconsideration to the Administrative Law Judge was not filed within 10 days of May 14, 2015, pursuant to 20 C.F.R. § 802.206(b)(1). Section 802.206(b)(1) states that a timely motion for reconsideration in a case arising under the Longshore Act and its extensions is one that is filed within 10 days of the filing of the decision by the District Director. Thus, the time for filing a notice of appeal was not suspended pursuant to 20 C.F.R. § 802.206(a). Section 802.206(a) states that a timely motion for reconsideration suspends the running of the time for filing an appeal until the date the order granting or denying the motion for reconsideration is filed. The Board further stated that claimant’s motion for reconsideration was not timely filed under the rationale of Galle v. Ingalls Shipbuilding, Inc., 33 BRBS 141 (1999), aff’d sub nom. Galle v. Director, OWCP, 246 F.3d 440, 35 BRBS 17(CRT) (5th Cir.), cert. denied, 534 U.S. 1002 (2001) (excluding intermediate weekends and holidays under old FRCP 6(a)) or under FRCP 6(a) as amended in 2009. As claimant’s appeal was not timely filed with respect to the May 14, 2015, date of filing, the Board dismissed claimant’s appeal of the Administrative Law Judge’s fee award. Because the District Director adopted the Administrative Law Judge’s hourly rate analysis, which the Board was not reviewing, and claimant’s counsel did not independently raise any issues with respect to the District Director’s fee award, the Board affirmed that award.

Claimant’s counsel appealed the Board’s decision to the Ninth Circuit. The court reversed, holding that, pursuant to Bowman v. Lopereno et al., 311 U.S. 262 (1940), because the Administrative Law Judge “entertained or considered” claimant’s motion for reconsideration on its merits, the time for appeal was tolled until June 19, 2015. Shah v. Worldwide Language Resources, Inc., 703 F. App’x 624, 51 BRBS 37(CRT) (9th Cir. 2017).

Bowman was a bankruptcy case in which the debtor sought rehearing in the District Court. The District Court stated: “This matter is before the Court (a) on a petition to review an order of this court denying review of an order to set aside adjudication; (b) on a petition to review an order of the Referee calling a meeting of creditors for electing, and electing a trustee, in the above entitled estate.” The District Court substantively addressed the issues raised and concluded: “The petition for review is denied.” In Re Bowman, 24 F. Supp. 381 (S.D. Cal. 1938). The debtor appealed to the Ninth Circuit, which dismissed the appeal on the ground that it was not timely with respect to the 1937 denial of the first petition for rehearing. The court stated that the second motion for rehearing did not toll the time for filing an appeal. In Re Bowman, 110 F.2d 348 (9th Cir. 1940).

The Supreme Court reversed, stating:

Until the order of February 17, 1938, no final decision was rendered sustaining the adjudication as against the debtor's attack. These circumstances enlarged the time for taking appeal from the order of adjudication. The filing of an untimely petition for rehearing which is not entertained or considered on its merits, or a motion for leave to file such a petition out of time, if not acted on or if denied by the trial court, cannot operate to extend the time for appeal. But where the court allows the filing and, after considering the merits, denies the petition, the judgment of the court as originally entered does not become final until such denial, and the time for appeal runs from the date thereof.

Bowman, 311 U.S. at 266.

In Shah, the Administrative Law Judge’s Order Denying Reconsideration states, in its entirety,

This is a claim for benefits under the Longshore Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901, et seq. (“the Act” or “LHWCA”), as extended by the Defense Base Act, 42 U.S.C. §§ 1651 et seq.

Claimant’s counsel’s Petition for Reconsideration of the May 11, 2015, Attorney Fee Order in this matter is denied.

The Ninth Circuit’s decision states that by this language the Administrative Law Judge “entertained or considered” the motion for reconsideration on the merits, presumably because the Administrative Law Judge did not state that the motion was untimely filed. The Ninth Circuit did not discuss 20 C.F.R. § 802.206(a), (b)(1), which extends the time for appeal to the Board, pursuant to 33 U.S.C. § 921(a), only when a timely motion for reconsideration is filed with the Administrative Law Judge.

The Ninth Circuit remanded Shah to the Board for action on claimant’s appeals of the fee awards of the Administrative Law Judge and the District Director. The appeals were reinstated on the Board’s docket and remain pending.

It seems likely that the Board will be presented with the significance of Shah, an unpublished decision, in cases arising in other circuits and in view of the regulations at 20 C.F.R. § 802.206(a), (b)(1).

Any opinions expressed herein are solely those of the author and are not intended to reflect the views of the members of the Benefits Review Board.