United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 13, 2001 Decided June 19, 2001
No. 00-1318
Florence Snowden,
Petitioner
v.
Director, Office of Workers' Compensation Programs,
United States Department of Labor, et al.,
Respondents
On Petition for Review of an Order of the
Benefits Review Board
Richard W. Galiher, Jr. argued the cause and filed the
briefs for petitioner.
Joshua T. Gillelan, II, Senior Attorney, argued the cause
for respondent Director, Office of Workers' Compensation
Programs. With him on the brief was Carol A. De Deo,
Associate Solicitor.
Roger S. Mackey argued the cause and filed the brief for
respondents Washington Hospital Center and Travelers
Property Casualty Company.
Before: Williams, Ginsburg and Rogers, Circuit Judges.
Rogers, Circuit Judge: This case is one of the last claims
likely to be brought by a District of Columbia employee under
the Longshore and Harbor Workers' Compensation Act, 33
U.S.C. ss 901-950 (1994).1 Florence Snowden appeals an
order of the Benefits Review Board of the United States
Department of Labor overturning a supplementary compen-
sation order of the Office of Workers' Compensation Pro-
grams. The underlying controversy is whether Ms. Snow-
den's compensation rate should include annual cost of living
adjustments under s 910(f) of the Act for the years between
her 1978 injury and the 1990 classification of her disability as
permanent and total. The only question the court reaches,
however, is whether the Board erred in asserting jurisdiction
to review the supplementary compensation order. We join
the other circuits that have addressed this question in holding
that the Board lacked jurisdiction to review the order because
it was issued pursuant to s 918(a), and thus became final
when issued, with relief available only from the district court.
Accordingly, we vacate the November 15, 1999 decision and
order of the Board.
I.
Florence Snowden injured her back in 1978 while working
__________
1 The Longshore and Harbor Workers' Compensation Act ap-
plies to injuries suffered by private-sector workers in the District of
Columbia before July 24, 1982. Thereafter, the District of Colum-
bia Workers' Compensation Act of 1979, D.C. Code s 36-301 to
36-345 (1981), applies. See District of Columbia Self-Government
and Governmental Reorganization Act, Pub. L. No. 93-198, ss 204,
302, 404, 87 Stat. 774, 783-84, 787-88 (1973). Because Ms. Snow-
den's injury occurred in 1978, we refer to the Longshore and
Harbor Workers' Compensation Act as it applies in the District of
Columbia as "the Act."
as a psychiatric nurse at the Washington Hospital Center.2
After a formal hearing, an Administrative Law Judge issued a
compensation order in 1992 awarding her benefits under the
Act for permanent total disability, "commencing December
18, 1990 and continuing for a period of 104 weeks thereafter,
including periodic increases to which she may be entitled
under the Act." Both the Office of Workers' Compensation
Programs ("OWCP") and Aetna appealed to the Benefits
Review Board; OWCP appealed the award of s 908(f)3 relief
to Aetna, while Aetna challenged the determination of perma-
nent total disability. The Benefits Review Board affirmed
the award of compensation but remanded the claim for
s 908(f) relief.4
The 1992 compensation order did not specify the manner in
which Ms. Snowden's benefit payments were to be calculated.
Rather, the order simply stated that Aetna must "pay all
periodic permanent total disability benefits ... including
periodic increases to which she may be entitled under the
Act." Thus, the order did not explicitly state whether Ms.
Snowden's compensation rate should reflect the annual cost of
living adjustments under s 910(f), i.e., the "catch-up" adjust-
ments, that had accrued in the years between her injury and
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2 For ease of reference, we refer to Ms. Snowden's employer,
the Washington Hospital Center, and its insurer, Aetna Casualty &
Surety Company (now known as Travelers Insurance Company) as
"Aetna." We also refer to "OWCP," the Office of Workers' Com-
pensation Programs, without distinguishing between actions taken
by various officials in or on behalf of OWCP.
3 Pursuant to s 908(f), the Special Fund, established in 33
U.S.C. s 944, will assume responsibility for permanent total disabil-
ity payments after 104 weeks if "the employee is totally and
permanently disabled, and the disability is found not to be due
solely to that injury...." 33 U.S.C. s 908(f)(1).
4 On remand, the Administrative Law Judge ruled that s 908(f)
was inapplicable and denied Aetna's request for reconsideration.
The Board affirmed on Aetna's second appeal. Aetna thereafter
reimbursed the Special Fund for payments it had made to Ms.
Snowden since December 1992 and reinstated payments at rates
that included catch-up adjustments.
the classification of her injury as a permanent and total
disability.5 Consistent with Brandt v. Stidham Tire Co., 785
F.2d 329 (D.C. Cir. 1986), OWCP advised Aetna that Ms.
Snowden's weekly compensation rate would increase from the
$192.80 that she had received for temporary total disability to
$357.80 for permanent total disability, a figure reflecting the
s 910(f) catch-up adjustments compounded since her 1978
injury. Aetna paid Ms. Snowden as OWCP instructed.
Aetna did not challenge OWCP's methodology for comput-
ing Ms. Snowden's benefit payments until June 11, 1998.
Then, relying on the Board's recent decision in Bailey v.
Pepperidge Farm, Inc., BRB No. 97-1156, 1998 WL 285563
(Benefits Review Bd. May 19, 1998), Aetna unilaterally cut
Ms. Snowden's weekly benefit payments by nearly half, from
$438.00 to $236.00, and requested an order from OWCP
allowing it to take a credit under s 914(j) for $76,626.31 in
alleged overpayments.6 Ms. Snowden filed a claim under
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5 Under s 910, "Determination of Pay," subsection (f) provides
that cost of living adjustments to compensation benefits are avail-
able only to those claimants whose disability is classified by OWCP
as permanent and total. See 33 U.S.C. s 910(f).
6 In Brandt, 785 F.2d at 332, this court adopted the interpreta-
tion of s 910(f) set forth in Holliday v. Todd Shipyards Corp., 654
F.2d 415, 417, 422 (5th Cir. 1981), whereby s 910(f) catch-up
adjustments were retroactive to the date of injury. In this opinion,
we refer to "Brandt/Holliday" as the rule that applied when OWCP
issued Ms. Snowden's 1992 compensation order. In 1990, the Fifth
Circuit, sitting en banc, overruled Holliday. See Phillips v. Ma-
rine Concrete Structures, Inc., 895 F.2d 1033, 1035 (5th Cir. 1990).
Some years later, in 1998, the Board held in Bailey that
Brandt/Holliday "no longer applies to cases arising under the [ ]
Act." Bailey, 1998 WL 285563, at *4. Henceforth, catch-up bene-
fits under s 910(f) would no longer be retroactive to the date of
injury but would apply only to periods after an injury was classified
by OWCP as permanent and total. See id. In contrast to the
request made by Aetna for a credit reimbursement, no retroactive
adjustment arose in Bailey, 1998 WL 285563, at *1-*4, because the
employer had never commenced paying at the retroactive catch-up
s 914(f)7 for additional compensation for overdue installments
based on Aetna's failure to pay in accord with Brandt/Holli-
day. OWCP issued a "supplementary compensation order" in
1998, finding Aetna in violation for failure to make more than
$3500 in benefit payments, and liable, therefore, under
s 914(f) for a penalty equal to 20% of the shortfall. Aetna
paid Ms. Snowden the past-due benefits but not the 20%
penalty.8 Aetna then appealed the supplementary compensa-
tion order to the Benefits Review Board.
The Board reversed OWCP's award of catch-up adjust-
ments in the 1998 supplementary compensation order, while
noting that because the penalty had not been paid, it "lack[ed]
jurisdiction to address the propriety of the penalty." On
reconsideration, the Board rejected OWCP's argument that
the Board lacked jurisdiction because the 1998 supplementary
compensation order was issued pursuant to s 918(a), and thus
was subject only to review by the district court. The Board
took the position that there had never been a formal determi-
nation in the 1992 compensation order that Ms. Snowden was
entitled to s 910(f) catch-up adjustments retroactive to the
date of her injury, and thus the alleged default of the catch-
up adjustments was not "compensation due under any award
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rate, and in Phillips, 895 F.2d at 1035-36, the employer and the
Board agreed not to seek reimbursement from the claimant.
7 Section 914(f), "Additional Compensation for Overdue Install-
ment Payments Payable Under Terms of Award," provides:
If any compensation, payable under the terms of an award, is
not paid within ten days after it becomes due, there shall be
added to such unpaid compensation an amount equal to 20 per
centum thereof, which shall be paid at the same time as, but in
addition to, such compensation, unless review of the compensa-
tion order making such award is had as provided in section 921
of this title and an order staying payment has been issued by
the Board or court.
33 U.S.C. s 914(f).
8 After Ms. Snowden filed for a default under s 918(a), OWCP
issued a second supplementary compensation order in 1999 declar-
ing the 20% penalty in default.
of compensation" pursuant to s 918(a). In the Board's view,
the 1998 supplementary compensation order was "an original
adjudication of the Brandt/Holliday issue which is subject to
review by the Board." The Board also ruled that Aetna
would not receive credit for catch-up adjustments made prior
to the Bailey decision but would be entitled to reduce Ms.
Snowden's payments subsequent to Bailey so as to recover
the amount of Brandt/Holliday overpayments.
II.
As a threshold matter, Ms. Snowden, joined by OWCP,
contends that the Benefits Review Board lacked jurisdiction
to review the 1998 supplementary compensation order be-
cause the order was issued under s 918(a), not s 921(a).
Our review of decisions and orders of the Benefits Review
Board is for errors of law and for confirmation that the Board
acted within the scope of its review in evaluating the decision
of the administrative law judge. See Brown v. I.T.T./Conti-
nental Baking Co., 921 F.2d 289, 293 (D.C. Cir. 1990) (citing
Stark v. Washington Star Co., 833 F.2d 1025, 1027 (D.C. Cir.
1987); Stevenson v. Linens of the Week, 688 F.2d 93, 96-97
(D.C. Cir. 1982); Sun Shipbuilding & Dry Dock Co. v.
McCabe, 593 F.2d 234, 237 (3d Cir. 1979)). The Board does
not make policy; "its interpretation of the [Act] thus is not
entitled to any special deference from the courts." Potomac
Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n.18
(1980) (citing Hastings v. Earth Satellite Corp., 628 F.2d 85,
94 (D.C. Cir. 1980); Tri-State Terminals, Inc. v. Jesse, 596
F.2d 752, 757 n.5 (7th Cir. 1979)). We hold that the Board
lacked the jurisdiction to review the 1998 supplementary
compensation order because it was a final order unreviewable
by the Board.
The Act provides for review of compensation orders in two
principal ways. Section 921 provides generally for the review
of compensation orders by the Board.9 Specifically, s 921(a)
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9 Section 921, "Review of Compensation Orders," provides in
subsection (b)(3):
provides that a compensation order shall become "effective"
upon its filing pursuant to s 919, "unless proceedings for the
suspension or setting aside [the] order are instituted" within
thirty days. 33 U.S.C. s 921(a). Until that time, the Board
has jurisdiction to "determine appeals raising a substantial
question of law or fact taken by any party in interest from
decisions with respect to claims of employees...." Id.
s 921(b)(3). In contrast, s 918(a) addresses the collection of
defaulted payments under an award of compensation.10 Thus,
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The Board shall be authorized to hear and determine appeals
raising a substantial question of law or fact taken by any party
in interest from decisions with respect to claims of employees
under this chapter and the extensions thereof. The Board's
orders shall be based upon the hearing record. The findings of
fact in the decision under review by the Board shall be conclu-
sive if supported by substantial evidence in the record consid-
ered as a whole. The payment of the amounts required by an
award shall not be stayed pending final decision in any such
proceeding unless ordered by the Board. No stay shall be
issued unless irreparable injury would otherwise ensue to the
employer or carrier.
33 U.S.C. s 921(b)(3).
10 Section 918, "Collection of Defaulted Payments; Special
Fund," provides in subsection (a):
In case of default by the employer in the payment of compensa-
tion due under any award of compensation for a period of thirty
days after the compensation is due and payable, the person to
whom such compensation is payable may, within one year after
such default, make application to the deputy commissioner
making the compensation order or a supplementary order
declaring the amount of the default. After investigation, no-
tice, and hearing, as provided in section 919 of this title, the
deputy commissioner shall make a supplementary order, de-
claring the amount of the default, which shall be filed in the
same manner as the compensation order.... The applicant
may file a certified copy of such supplementary order with the
clerk of the Federal district court for the judicial district in
which the employer has his principal place of business or
maintains an office, or for the judicial district in which the
injury occurred.... Such supplementary order of the deputy
where an employer has failed to make payment for thirty
days after a payment is due under a compensation award, the
claimant may file for a supplementary order declaring the
amount in default; the supplementary order becomes "final"
when issued. Id. s 918(a). Review is not available by the
Board, but only in an enforcement proceeding in the district
court. See id. The Ninth Circuit has described the three
prime distinctions between s 918 orders and s 921 orders:
(1) [O]rders issued under s 918, unlike s 921 orders, are
not appealable to the Board; (2) s 918 orders are final
when issued unlike s 921 orders which do not become
final until after 30 days or, if appealed, after appeal; and
(3) as a result, s 918 supplementary orders can immedi-
ately be filed with the federal district court for enforce-
ment.
Providence Wash. Ins. Co. v. Director, OWCP, 765 F.2d 1381,
1385 (9th Cir. 1985). OWCP maintains that "finality" under
s 918(a) means that "such an order is not subject to the
ordinary review process of s [9]21, at least where the amount
declared in default has not been paid in full, because such
review would be duplicative of that available from the district
court."
As other circuits have observed, the Longshore and Harbor
Workers' Compensation Act is "explicitly designed to encour-
age the prompt payment by employers of obligations under a
compensation order notwithstanding the existence of an ap-
peal." Id. at 1384. Thus, the Fifth Circuit stated that where
employers fail to meet their obligations, s 918(a) "provides a
quick and inexpensive mechanism for the prompt enforcement
__________
commissioner shall be final, and the court shall upon the filing
of the copy enter judgment for the amount declared in default
by the supplementary order if such supplementary order is in
accordance with law. Review of the judgment so entered may
be had as in civil suits for damages at common law. Final
proceedings to execute the judgment may be had by writ of
execution in the form used by the court in suits at common law
in actions of assumpsit....
33 U.S.C. s 918(a) (footnote omitted).
of unpaid compensation awards, a theme central to the spirit,
intent, and purposes of the [Act]." Tidelands Marine Serv.
v. Patterson, 719 F.2d 126, 129 (5th Cir. 1983). With that
statutory purpose in mind, it follows that a s 914 order and a
s 918 standard default order differ only in immaterial ways;
under the former, OWCP must compute the 20% penalty
amount that should be added to the default amount. An
order issued under s 914(f) thus "is nothing more than a
standard default order, plus an additional arithmetic compu-
tation." Providence, 765 F.2d at 1386. Because s 914 di-
rects that both the default amount and the penalty amount be
paid at the same time, the terms of the statute explicitly
reject any distinction between s 918 awards of "existing
compensation" and s 914(f) awards of "additional compensa-
tion." Id. Both awards are "based on an appealable prior
compensation order that resolves the substantive rights of the
parties." Id.
Both the statute and caselaw indicate that whether the
award of additional compensation for overdue installments
and the declaration of the default are separately issued
orders or combined into a single supplementary order is
irrelevant. See id. at 1385; Tidelands, 719 F.2d at 128-29 &
128 n.3. In Tidelands, when the employer failed to pay the
s 914(f) penalty due within thirty days after the filing of the
award, OWCP issued a supplementary compensation order,
finding the employer in default of the penalty under s 914(f).
See Tidelands, 719 F.2d at 128 & n.3. The Fifth Circuit held
that the second order was not a s 914(f) order because the
clear "substance [of] the order was a 'supplementary order
declaring the amount of the default' within the meaning of
Section [9]18(a) of the [Act]...." Id. at 128 n.3. In Provi-
dence, the supplementary compensation order awarding a
20% penalty and the supplementary compensation order de-
claring default of the 20% penalty were combined into a
single supplementary compensation order. See Providence,
765 F.2d at 1385. The Ninth Circuit adopted the Fifth
Circuit's approach, observing that were the s 914(f) supple-
mentary order "subject to s 921 procedures, it would be far
more difficult and cumbersome for a claimant to collect both
awards at the same time," as the Act contemplates. Id. at
1386. For, as the Ninth Circuit noted, the default amount
would be immediately collectible, while the 20% penalty could
be collected only after waiting for the expiration of the 30-
day review period under s 921 and then obtaining from
OWCP a second supplementary order under s 918 declaring
the first supplementary order in default. See id. The latter
scheme, the court concluded, "is obviously needlessly duplica-
tive and time consuming and completely at variance with
Congress' intent," id. (citing Tidelands, 719 F.2d at 129),
namely, to provide "a quick and streamlined mechanism for
the collection of compensation under the [Act]." Id.
Consequently, "notwithstanding the general grant of juris-
diction to the Benefits Review Board contained in 33 U.S.C.
s 921(b)(3)," the circuits to address the issue have concluded
that "actions for the enforcement of orders declaring default
in the payment of [installments] due under either s 914(f) or
any other substantive section of the [Longshore and Harbor
Workers' Compensation Act] are to be brought in the district
court and, only subsequent thereto, by appeal to the appropri-
ate court of appeals." Tidelands, 719 F.2d at 129; see also
Sea-Land Serv., Inc. v. Barry, 41 F.3d 903, 907 (3d Cir.
1994); Providence, 765 F.2d at 1386. We agree, for reasons
set forth by the Fifth and Ninth Circuits, that such an
interpretation is consistent with the statutory language and
"far better" conforms to Congressional intent. Providence,
765 F.2d at 1386.
The 1998 supplementary compensation order was sought by
Ms. Snowden pursuant to s 914(f) and resulted in OWCP's
issuance of a supplementary order declaring Aetna in default
of paying installments due under the 1992 compensation
order. See supra n.8. As such, the 1998 order was manifest-
ly an order for the collection of defaulted payments within the
meaning of s 918(a). As OWCP states, the 1992 compensa-
tion order was "plainly premised on th[e] view" that
Brandt/Holliday applied to all awards for permanent total
disability under the Act, and "on the consequent proposition
that the compensation [ ] calculated and declared in default
was 'due under' the [1992 compensation order]." Respon-
dent's Brief at 15. The Board's characterization of the 1998
supplementary compensation order as "an original adjudica-
tion of the Brandt/Holliday issue" ignores both this circuit's
law at the time the 1992 compensation order was issued and
OWCP's contemporaneous understanding of the compensa-
tion rate for permanent total disability benefits in the District
of Columbia. The Board's interpretation would also mean
delays in receipt of amounts due to claimants contrary to the
purposes of the Act and the specific provisions of s 918 to
ensure quick payment of defaulted amounts. See Providence,
765 F.2d at 1386.
Essentially then, the Board failed to acknowledge the dis-
tinction between appeals of compensation orders and proceed-
ings relating to compensation orders that are not direct
appeals of the underlying compensation orders, but are "ap-
plication[s] for a supplementary order declaring a default in
the payment of compensation under s [9]18(a)...." Bray v.
Director, OWCP, 664 F.2d 1045, 1047 (5th Cir. 1981). "Such
a deficiency is distinct from an error of fact or law, which
must be asserted within 30 days after the filing of a compen-
sation order." Id. (citing s 921(a)). Given the undisputed
record that Aetna paid Ms. Snowden pursuant to the 1992
compensation order on the basis that she was entitled to the
benefit of the catch-up adjustments, the fact that s 910(f) was
not explicitly mentioned in the 1992 compensation order is not
dispositive of the jurisdictional issue. The reference was
implicit in light of Brandt/Holliday, and for years Aetna paid
without challenging OWCP's methodology for calculating Ms.
Snowden's compensation rate. When Aetna did challenge the
methodology, it relied on the Board's decision in Bailey,
which acknowledged a change of law in ruling that the
Brandt/Holliday rule "no longer applies to cases arising
under the [ ] Act." Bailey, 1998 WL 285563, at *4.
Finally, although Ms. Snowden and OWCP ask the court to
address whether Brandt/Holliday is still law in this circuit,
we decline to do so in view of our holding that the Board
lacked jurisdiction to review the supplementary compensation
order. Once the court has determined that the agency did
not have jurisdiction to act, the court has declined to consider
the merits of contentions that the agency erred. See, e.g.,
Stoddard v. Board of Governors of the Fed. Reserve Sys., 868
F.2d 1308, 1312 (D.C. Cir. 1989); see also Synovus Fin. Corp.
v. Board of Governors of the Fed. Reserve Sys., 952 F.2d 426,
428 (D.C. Cir. 1991); Seatrain Lines, Inc. v. Federal Mari-
time Comm'n, 460 F.2d 932, 949 (D.C. Cir. 1972), aff'd, 411
U.S. 726 (1973). In view of our practice, which is binding
absent en banc review, the court has no occasion to decide
whether it has jurisdiction to reach the substantive conten-
tions. Cf. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83
(1998); Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,
541 (1986).11
Accordingly, because the Benefits Review Board lacked
jurisdiction to review the 1998 supplementary compensation
order issued pursuant to s 918(a), we vacate the November
15, 1999 decision and order of the Board.
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11 The court, therefore, also does not reach Ms. Snowden's
contentions that any modification to Brandt/Holliday be prospec-
tive, and that the Board erred in ruling that the lower compensation
rates should be applied as of the date of Bailey. The court likewise
does not reach OWCP's contentions that the Board misread Brandt,
that this court should overrule Brandt, and that, in any event,
Aetna waived any objection to the application of Brandt by failing
timely to raise its objection.