Galle v. Ingalls Shipbuilding

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 00-60075

ANDREW T. GALLE, deceased,

Petitioner - Cross-Respondent,

VERSUS

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
U.S. DEPARTMENT OF LABOR,

Respondent,

INGALLS SHIPBUILDING, INC.; AETNA CASUALTY & SURETY COMPANY,

Respondents - Cross-Petitioners.

Petition for Review of an Order
of the Benefits Review Board

March 26, 2001

Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

The Court is asked to review final decisions of the Benefits

Review Board determining that Galle's notice of appeal to the Board

was timely and awarding a limited amount of compensation benefits

under the Longshore and Harbor Worker's Compensation Act (“LHWCA”),

33 U.S.C. § 901 et seq. Plaintiff Andrew T. Galle appeals the

Board's decision on the merits of his claim for disability

benefits. Galle argues that the Board properly held that his
notice of appeal from the ALJ's decision was timely, but that the

Board erroneously limited his benefits by finding only a permanent

partial disability, rather than a permanent total disability, by

excluding certain medical services, and by refusing to award fees

to Galle's representative. Defendant-employer Ingalls

Shipbuilding, Inc. (“Ingalls”) and Aetna Casualty and Surety

Company (“Aetna”), which is Ingalls' LHWCA carrier, cross-appeal,

arguing that the Board erroneously determined that Galle's notice

of appeal to the Board was timely, but that the Board properly

limited Galle's benefits. The Director of the Office of Workers'

Compensation Programs (“OWCP”) filed a brief limited to the

question of whether Galle filed a timely notice of appeal to the

Board. The Director construes the relevant federal rules and

regulations to require the conclusion that Galle's notice of appeal

was timely. We agree, and affirm the Board's determination that

Galle filed a timely appeal with the Board. We likewise affirm the

Board's decision on the merits of Galle's claim for disability

benefits.

I. BACKGROUND

In November 1984, Galle was injured on the job when he tripped

over debris left by other workers, and fell hard on his knee and

right shoulder. Galle filed this claim for compensation benefits

under the LHWCA in 1988. See 33 U.S.C. § 919. In June 1989, the

ALJ held an evidentiary hearing on Galle's claim. On March 23,

2
1990, the ALJ issued a decision ordering Ingalls and Aetna to pay

Galle temporary total disability benefits from November 1984 until

October 1985, and permanent partial disability benefits from

October 1985 forward. The ALJ excluded benefits for certain

medical expenses claimed by Galle, see 33 U.S.C. § 907, and ordered

the defendants to pay certain penalties, see 33 U.S.C. § 914(e).

The decision was filed in the deputy commissioner's office on April

19, 1990. See 33 U.S.C. § 921 (a) (compensation orders become

effective when filed in the office of the deputy commissioner).

Galle moved for reconsideration, which was denied. See 20 C.F.R.

§ 802.206(b)(1) (permitting motions for reconsideration of an ALJ's

benefit determination). Galle filed a timely appeal to the Board.

See 20 C.F.R. § 802.205.

In July 1992, the Board affirmed the ALJ's decision, as

modified to include additional benefits for medical services. On

August 25, 1992, Galle moved for reconsideration of the Board's

decision. See 20 C.F.R. § 802.219(i). Shortly thereafter, in

January 1993, Galle unexpectedly died. Galle's counsel withdrew

and his widow, Margaret Galle, continued as his “representative.”

In April 1993, Galle, represented pro se by his widow, filed a

second motion for reconsideration of the Board's decision. In

November 1993, the Board issued an order granting Galle's motion

for reconsideration in part by changing the date upon which total

temporary disability ended and permanent partial disability began

3
from October 1985 to June 18, 1987, thus affording Galle an

additional twenty months of benefits for total disability. In

January 1994, Galle filed a petition for review of the Board's

decision with this Court, see 33 U.S.C. § 921(c), thus ending the

first complete round of administrative review.

In January 1994, and while the petition for review was pending

in this Court, the defendants filed a motion to alter or amend the

November 12, 1993 Board decision. The defendants' motion was based

upon new information indicating that Galle may have sought pre-

authorization for certain medical services, as to which

compensation had been denied on the theory that he had not sought

such pre-authorization. In October 1994, the Board granted that

motion, remanding the case to the ALJ with instructions to receive

evidence on the pre-authorization issue and to re-evaluate whether

the challenged medical expenses were compensable on the basis of

that evidence. In November 1994, this Court dismissed the pending

petition for review on the basis of the Board's remand order.

Between February 1995 and November 1995, Galle filed several

motions for reconsideration of certain aspects of the Board's

October 1994 remand order. In December 1995, the Board issued an

order stating that no further filings would be accepted by the

Board because the case was on remand to the ALJ.

On remand, the ALJ received evidence on the pre-authorization

issue. On June 5, 1998, the ALJ issued an order expanding the

4
award in Galle's favor by including some of the previously excluded

medical expenses requested by Galle. Ingalls and Aetna were

ordered to pay interest on the additional amount. The ALJ also

awarded Galle $220 for travel expenses associated with receiving

medical care, and denied Mrs. Galle's request for fees, which was

based upon the premise that she was Galle's legal representative.

On June 19, 1998, the decision was filed in the deputy

commissioner's office.

On July 1, 1998, Galle filed a motion for reconsideration of

the June 19, 1998, decision. The LHWCA regulations recognizing the

right to file a motion for reconsideration of an ALJ's benefits

determination provide that the motion must be “filed not later than

ten days from the date the [ALJ's] decision or order was filed in

the Office of the Deputy Commissioner.” 20 C.F.R. § 802.206(b)(1).

The issue to be decided in this case is whether parties should

exclude or include weekends and holidays when calculating that ten-

day time period. Galle and the Director maintain, and the Board

held, that § 802.206(b)(1)'s ten-day time period must be calculated

with reference to Federal Rule of Civil Procedure 6(a), which

excludes weekends and holidays from the time computation. The

parties agree that, if Rule 6(a) applies, Galle's motion for

reconsideration was timely because it was filed before Monday, July

3, 1998. The defendants maintain that § 802.206(b)(1)'s ten-day

time period must be calculated with reference to 29 C.F.R. § 18.4,

5
which requires that intervening weekends and holidays be included

in the time computation. The parties agree that if § 18.4 applies,

Galle's motion for reconsideration was untimely because it was not

filed on or before June 29, 1998.

The ALJ denied Galle's July 1, 1998 motion for reconsideration

on August 20, 1998. In the course of that denial, the ALJ stated

that the motion was filed two days late, accepting the defendants'

position that § 802.206(b)(1) required that the motion be filed on

or before June 29, 1998. The ALJ nonetheless addressed the merits

of Galle's motion for reconsideration, stating that Galle's pro se

status entitled him to some leniency in application of the

controlling time period. The ALJ's August 20, 1998 order denying

Galle's July 1, 1998 motion for reconsideration was filed in the

deputy commissioner's office on August 28, 1998.

On September 21, 1998, Galle filed an appeal of the ALJ's

decisions on remand. A notice of appeal to the Board must be filed

within thirty days from the date on which an ALJ's decision or

order is filed in the office of the deputy commissioner. See 20

C.F.R. § 802.205. Failure to file within the proscribed period

will "foreclose all rights to review by the Board," and an untimely

notice of appeal will be summarily dismissed by the Board "for lack

of jurisdiction." Id. The thirty-day time period is suspended,

however, during the pendency of a timely filed motion for

reconsideration of the ALJ's decision. See 20 C.F.R. § 802.206(a).

6
 Galle's appeal to the Board was filed more than one-hundred

days after the ALJ's decision on remand, but only twenty-four days

after the ALJ's denial of his motion for reconsideration. Thus,

Galle's September 21, 1998 notice of appeal to the Board was timely

if and only if his July 1, 1998 motion for reconsideration was also

timely, and therefore effective to suspend the thirty-day time

period for filing an appeal.

On September 20, 1999, the Board affirmed the ALJ's decisions

on remand. Rather than to rely upon the ALJ's theory that Galle

was entitled to leniency in the application of the filing period,

however, the Board held that Galle's motion for reconsideration

before the ALJ, and thus, his appeal to the Board, was timely filed

because the ten-day time period in 20 C.F.R. § 802.206 must be

calculated using the computation method specified in Federal Rule

of Civil Procedure 6(a). The Board then affirmed the ALJ's

disposition on the merits of Galle's claim.

Galle moved for reconsideration of the Board's order to the

extent it affirmed the ALJ's decision on the merits of his

disability benefits claim, which the Board denied. See 20 C.F.R.

§ 802.219(i). Galle then filed a timely petition for review of the

Board's decision with this Court. See 33 U.S.C. § 921(c). The

defendants followed suit with a timely cross-appeal.

II.

The case presents an important question of first impression

7
concerning the interplay of specific regulations and federal rules

when calculating the time period for filing a motion for

reconsideration of an Administrative Law Judge's benefit

determination under the LHWCA. We begin with an analysis of the

potentially controlling provisions.

Department of Labor (“DOL”) regulations governing

administrative review of LHWCA claims for compensation benefits are

divided into three regulatory parts defined by the pertinent level

of administrative review. The first set of regulations is found at

20 C.F.R. Part 702. These regulations govern administration and

procedure for LHWCA claims before a district director. There is

nothing in Part 702 recognizing any right to request

reconsideration of an ALJ’s decision or order.

The second set of regulations is found at 29 C.F.R. Part 18.

These regulations are captioned "Rules of Practice and Procedure

for Administrative Hearings before the Office of Administrative Law

Judges" (“the OALJ rules or regulations”). Section 18.1 defines

the scope of those rules as follows:

(a) General application. These rules of practice are
generally applicable to adjudicatory proceedings before
the Office of Administrative Law Judges, United States
Department of Labor. Such proceedings shall be conducted
expeditiously and the parties shall make every effort at
each stage of a proceeding to avoid delay. To the extent
that these rules may be inconsistent with a rule of
special application as provided by statute, executive
order, or regulation, the latter is controlling. The
Rules of Civil Procedure for the District Courts of the
United States shall be applied in any situation not
provided for or controlled by these rules, or by any

8
 statute, executive order or regulation.

(b) Waiver, modification, or suspension. Upon notice to
all parties, the administrative law judge may, with
respect to matters pending before him or her, modify or
waive any rule herein upon a determination that no party
will be prejudiced and that the ends of justice will be
served thereby. These rules may, from time to time, be
suspended, modified or revoked in whole or part.

29 C.F.R. § 18.1. Section 18.4 provides a method for computing

time periods specified "under these rules." Section 18.4 provides,

in relevant part:

a) Generally. In computing any period of time under
these rules or in an order issued hereunder the time
begins with the day following the act, event, or default,
and includes the last day of the period, unless it is a
Saturday, Sunday or legal holiday observed by the Federal
Government in which case the time period includes the
next business day. When the period of time prescribed is
seven (7) days or less, intermediate Saturdays, Sundays,
and holidays shall be excluded in the computation.

(b) Date of entry of orders. In computing any period of
time involving the date of the entry of an order, the
date of entry shall be the date the order is served by
the Chief Docket Clerk.

(c) Computation of time for delivery by mail.
(1) Documents are not deemed filed until received by the
Chief Clerk at the Office of Administrative Law Judges.
However, when documents are filed by mail, five (5) days
shall be added to the prescribed period.
(2) Service of all documents other than complaints is
deemed effected at the time of mailing.
(3) Whenever a party has the right or is required to
take some action within a prescribed period after the
service of a pleading, notice, or other document upon
said party, and the pleading, notice or document is
served upon said party by mail, five (5) days shall be
added to the prescribed period.

29 C.F.R. § 18.4. Section 18.4 adds five days to a prescribed

filing period whenever the party files by mail, § 18.4(c)(1), or

9
the party is required to take action within a prescribed period

after receiving service by mail, § 18.4(c)(3). Significantly,

there is nothing in the OALJ rules set out in 29 C.F.R. Part 18

granting, defining, or limiting any right to request

reconsideration of an ALJ’s decision.

The third set of regulations is found at 20 C.F.R. Part 802.

These regulations (“the Board rules”) set out the rules of practice

and procedure governing the operation of the Benefits Review Board,

and apply “to all appeals taken by any party from decisions or

orders” relating to the entitlement to compensation or benefits

under the LHWCA. 20 C.F.R. § 802.101(a). Section 802.205 sets out

the requirement that a notice of appeal to the Board be filed

within thirty days after the ALJ's decision or order is filed in

the office of the deputy commissioner. As set forth above,

§ 802.205 further provides that the Board has no jurisdiction to

consider an untimely appeal. See 20 C.F.R. § 802.205. Immediately

following § 802.205 is § 802.206, the only regulatory provision in

the DOL scheme recognizing and defining the right to seek

reconsideration of an ALJ’s decision. That provision, which is

captioned "[e]ffect of motion for reconsideration on time for

appeal," provides, in relevant part:

(a) 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.

(b)(1) In a case involving a claim filed under the

10
 Longshore and Harbor Workers' Compensation Act or its
extensions (see § 802.101(b)(1)-(5)), a timely motion for
reconsideration for purposes of paragraph (a) of this
section is one which is filed not later than 10 days from
the date the decision or order was filed in the Office of
the Deputy Commissioner.

* * *

(c) If the motion for reconsideration is sent by mail
and the fixing of the date of delivery as the date of
filing would result in a loss or impairment of
reconsideration rights, it will be considered to have
been filed as of the date of mailing. The date appearing
on the U.S. Postal Service postmark (when available and
legible) shall be prima facie evidence of the date of
mailing. If there is no such postmark or it is not
legible, other evidence such as, but not limited to,
certified mail receipts, certificates of service and
affidavits may also be used to establish the mailing
date.

20 C.F.R. § 802.206. We note that nothing in § 802.206 provides

that the time period for filing motions for reconsideration is

mandatory or that untimely motions will be summarily dismissed.

Cf. 20 C.F.R. § 802.205 (specifying that the time period for appeal

from the Board’s decision is mandatory and jurisdictional). To the

contrary, subsection 802.206(c) provides that the date of mailing,

rather than the date of filing, may be used when the movant's

reconsideration rights would be otherwise impaired.

Section 802.221 sets out a computation of time rule for those

matters governed by the Board rules. The computation of time rule

set out in the Board rules is different from that set out in the

OALJ rules (29 C.F.R. Part 18). Section 802.221 provides:

(a) In computing any period of time prescribed or
allowed by these rules, by direction of the Board, or by

11
 any applicable statute which does not provide otherwise,
the day from which the designated period of time begins
to run shall not be included. The last day of the period
so computed shall be included, unless it is a Saturday,
Sunday, or legal holiday, in which event the period runs
until the end of the next day which is not a Saturday,
Sunday, or legal holiday.

(b) Whenever a paper is served on the Board or on any
party by mail, paragraph (a) of this section will be
deemed complied with if the envelope containing the paper
is postmarked by the U.S. Postal Service within the time
period allowed, computed as in paragraph (a) of this
section. If there is no such postmark, or it is not
legible, other evidence, such as, but not limited to,
certified mail receipts, certificate of service and
affidavits, may be used to establish the mailing date.

(c) A waiver of the time limitations for filing a paper,
other than a notice of appeal, may be requested by proper
motion filed in accordance with §§ 802.217 and 802.219.

20 C.F.R. § 802.221. We note that § 802.221 recognizes a

substantial amount of flexibility in filing periods. Indeed,

§ 802.221 permits a motion requesting a waiver of any time period,

aside from that defining the time period for an appeal to the

Board.

In sum, § 802.206 is the only DOL regulatory provision

recognizing the right to seek reconsideration of an ALJ’s benefit

determination. That right is inextricably intertwined with the

timing for and a party's right to seek further review by the Board.

Both the OALJ rules found at 29 C.F.R. Part 18 and the Board rules

found at 20 C.F.R. Part 802, specify a method for computing the

time for filing documents governed by those rules. The

computation rules, however, are different. The computation method

12
specified in § 18.4 of the OALJ rules requires that weekends and

holidays be included when the time period for filing is seven days

or less. The computation method specified in § 802.221 of the Board

rules provides for flexibility in the calculation of most time

periods, but does not expressly address whether weekends and

holidays are included or excluded from the calculation of filing

periods specified in the Board rules. Having set forth the

potentially controlling regulatory provisions, we turn to an

analysis of whether the computation of time method specified in

§ 802.221 should be supplemented by Federal Rule of Civil Procedure

6(a).

The Federal Rules of Civil Procedure are generally applicable

to proceedings for the enforcement or review of LHWCA compensation

orders, except to the extent that procedural matters are provided

for in the Act. See FED. R. CIV. P. 81(a)(6). Federal Rule of Civil

Procedure 6(a) sets out the general method for calculating filing

time when the rules are applicable:

(a) Computation. In computing any period of time
prescribed or allowed by these rules, by the local rules
of any district court, by order of court, or by any
applicable statute, the day of the act, event, or default
from which the designated period of time begins to run
shall not be included. The last day of the period so
computed shall be included, unless it is a Saturday, a
Sunday, or a legal holiday, or, when the act to be done
is the filing of a paper in court, a day on which weather
or other conditions have made the office of the clerk of
the district court inaccessible, in which event the
period runs until the end of the next day which is not
one of the aforementioned days. When the period of time
prescribed or allowed is less than 11 days, intermediate

13
 Saturdays, Sundays, and legal holidays shall be excluded
in the computation. As used in this rule and in Rule
77(c), "legal holiday" includes New Year's Day, Birthday
of Martin Luther King, Jr., Washington's Birthday,
Memorial Day, Independence Day, Labor Day, Columbus Day,
Veterans Day, Thanksgiving Day, Christmas Day, and any
other day appointed as a holiday by the President or the
Congress of the United States, or by the state in which
the district court is held.

FED. R. CIV. P. 6(a). Neither the Act nor the Board rules specify

whether weekends and holidays should be included or excluded when

calculating the time period for filing a motion for reconsideration

of the ALJ's decision. Thus, Federal Rule of Civil Procedure 6(a)

could be used to supplement the computation of time rule found at

20 C.F.R. § 802.221. The OALJ rules, however, specify that

holidays and weekends must be included when the filing period is

less than eleven days. Thus, Federal Rule of Civil Procedure 6(a)

is inconsistent with and cannot be used to supplement that

regulatory rule. The question then becomes whether § 18.4 of the

OALJ rules or § 802.221 of the Board rules, as supplemented by

Federal Rule of Civil Procedure 6(a), provides the appropriate

computation of time rule for a motion for reconsideration.

III.

Galle and the Director maintain, and the Board held, that

Federal Rule of Civil Procedure 6(a) provides the computation of

time rule when determining whether a motion for reconsideration of

an ALJ decision is timely. This position relies heavily upon the

historical relationship between motions for reconsideration of an

14
ALJ’s decision, on the one hand, and motions to amend or alter a

judgment pursuant to Federal Rule of Civil Procedure 59(e), on the

other.

Federal Rule of Civil Procedure 59(e) provides that "any

motion to alter or amend a judgment shall be filed no later than 10

days after entry of the judgment." FED. R. CIV. P. 59(e). The

filing of a timely Rule 59(e) motion suspends the time period for

filing an appeal until there is a ruling on that motion. See FED.

R. APP. P. 4(a); see also Richardson v. Oldham, 12 F.3d 1373, 1377-

78 (5th Cir. 1994). Moreover, it is well established that Federal

Rule of Civil Procedure 6(a) provides the rule for determining

whether a Rule 59(e) motion is timely filed. See, e.g., Vincent v.

Consolidated Operating Co., 17 F.3d 782, 785 n.11 (5th Cir. 1994);

Richardson, 12 F.3d at 1377 n.9.

Prior to the time that § 802.206 was enacted, there were no

statutory or regulatory provisions specific to the LHWCA that

permitted the filing of a motion for reconsideration of an ALJ’s

decision. The Board filled that gap in its very first published

decision, by holding that Federal Rule of Civil Procedure 59(e)

provides the authority and procedure for the filing of a motion for

reconsideration of an ALJ's decision. See General Dynamics Corp.

v. Hines, 1 B.R.B.S. 3, 5-7 (1974). In reaching that decision, the

Board relied, as did the Board in this case, upon Federal Rule of

Civil Procedure 81(a)(6), together with the absence of any

15
statutory or regulatory provisions authorizing or setting out the

time period for the filing of such motions. See id. The Board

also relied upon the operation of Federal Rule of Appellate

Procedure 4(a) to hold in Hines that a timely filed motion for

reconsideration of the ALJ's decision would suspend the time period

for filing an appeal to the Board. Id. at 6. Galle and the

Director maintain that subsequent regulatory provisions permitting

motions for reconsideration (20 C.F.R. § 802.206(b)(1)) and

specifying a method for computing time periods set out in the Board

rules (20 C.F.R. § 802.221) were derived from the Board's decision

in Hines and patterned after the analogous provisions of the

Federal Rules of Civil Procedure. See Sebben v. Director, OWCP, 10

B.R.B.S. 136 (1970) (noting that the recently passed computation of

time rule in 20 C.F.R. Part 802 is “in conformity with rule 6(a)”).

Galle and the Director also argue that the Board’s decision to

apply Federal Rule of Civil Procedure 6(a) to the ten-day time

period set out in § 802.206(b)(1) is consistent with the purpose

and effect of the controlling statutes and regulations. Like most

workers' compensation schemes, the LHWCA represents a statutory

compromise between the interests of injured employees and

potentially liable employers and insurers. See, e.g., Ceres Gulf

v. Cooper, 957 F.2d 1199, 1204 (5th Cir. 1992). The compromise is

intended to provide covered employees with a prompt and certain

recovery. Id. In exchange, employers and insurers enjoy

16
substantial limitations upon their potential liability. Id.

Galle and the Director argue that the purpose of the

regulatory provision permitting the filing of a motion for

reconsideration was to provide a mechanism for avoiding a time

consuming appeal to the Board, which in turn provides for an

expeditious handling of compensation claims, an important concept

underlying the LHWCA's statutory scheme. At the time Galle's claim

was pending before the Board, an appeal to that body might take

several years to process. Galle's own case is illustrative.

Galle's first appeal to the Board was pending for more than two

years before any decision was reached. Galle's subsequent motion

for reconsideration required an additional year to process.

Moreover, an additional four years passed between the time that the

defendants first moved to alter or amend the Board's judgment and

the time that the case was finally received for re-evaluation by

the ALJ pursuant to the Board's remand order. While a small amount

of this time is no doubt attributable to motions for

reconsideration filed by Galle, the fact is that this appeal was

pending before the Board for a length of time that seems

inconsistent with the statutory purpose of providing prompt and

certain benefits.

Galle and the Director also argue that the interest in

promoting an expeditious handling of claims justifies a

construction of § 802.206(b)(1) (granting the right to seek

17
reconsideration) that does not unfairly constrict the right given.

The controlling regulations require that an ALJ's order be served

upon the parties by mail. See 29 C.F.R. § 18.3(c). When the time

period for mailing is considered, parties are often left with only

a very few days in which to seek reconsideration. The Director

maintains that parties are often foreclosed from filing any such

motion altogether. Once again, Galle's own case is illustrative.

Galle produced a post office receipt evidencing an attempted

delivery of the ALJ's order to Galle on June 29, 1998, the very day

that the defendants say Galle should have filed the motion for

reconsideration. Thus, Galle and the Director conclude that there

are no inconsistent regulatory provisions prohibiting the

application of Federal Rule of Civil Procedure 6(a) to the ten-day

time period defined in 20 C.F.R. § 802.206(b)(1). See FED. R. CIV.

P. 81(a)(6). Moreover, application of that rule is consistent with

the statutory and regulatory purpose of facilitating an expeditious

handling of LHWCA claims.

The defendants rely upon the OALJ rule found at 29 C.F.R.

§ 18.4 to argue that Galle and the Director are ignoring a more

specific LHWCA regulation requiring that weekends and holidays be

excluded when calculating the ten-day filing period in 20 C.F.R.

§ 802.206(b)(1). The defendants’ argument in this regard is

premised almost entirely upon that language in 29 C.F.R. § 18.1

providing that 29 C.F.R. Part 18 applies to all “adjudicatory

18
proceedings before the Office of Administrative Law Judges.” The

defendants note that § 18.4 is similar, but not identical to

Federal Rule of Civil Procedure 6(a). The defendants maintain that

the differences in those rules are no oversight, but instead

reflect a considered decision to narrow time periods of seven days

or more by including weekends and holidays in the calculation of

those time periods.

The Board rejected the defendants' text-based argument that 29

C.F.R. § 18.4 is necessarily applicable to the right granted in 20

C.F.R. § 802.206(b)(1), a separate regulatory part. The Board

reasoned that 29 C.F.R. § 18.4 by its own terms, is applicable only

to those time periods defined "under these rules or in an order

issued hereunder." The Board reasoned that the regulatory

reference in § 18.4 to time periods time specified “under these

rules or in an order issued hereunder” expressly limits the

application of § 18.4 to those time periods established or defined

by 29 C.F.R. Part 18 or contained in an ALJ's order issued pursuant

to the OALJ rules.

The Director argues in favor of the Board's resolution of this

issue. While neither the ALJ’s nor the Board’s legal

interpretation of the controlling regulations is entitled to

deference, see H.B. Zachary Co. v. Quinones, 206 F.3d 474, 478 (5th

Cir. 2000), the Director's interpretation of the agency's own

19
regulations is controlling unless that interpretation is plainly

erroneous or inconsistent with the text of the relevant

regulations. See Auer v. Robbins, 117 S. Ct. 905, 911-12 (1997).;

see also Ceres Marine Terminal v. Hinton, __ F.3d __, 2001 WL

170653 at *2 (5th Cir. 2001) (“The Director's interpretations of the

Act and articulations of administrative policy are accepted as

controlling, unless they are unreasonable readings of the statutory

terms or contrary to clearly expressed legislative intent on the

point in issue.”)

The regulation recognizing a right to seek reconsideration

from the ALJ is placed exclusively in 20 C.F.R. Part 802, the set

of regulations governing proceedings before the Board. Without

some sound justification, it is difficult to ignore the computation

provision located in Part 802 and jump to a functionally separate

set of regulations for a time computation provision. This is

particularly true when, as here, the separate set of regulations

set forth in 29 C.F.R. Part 18 is facially limited to the rules

defined in that part. Moreover, the Director's position that

Federal Rule of Civil Procedure 6(a) may be used to supplement the

time computation provision set forth at 20 C.F.R. § 802.221 is

consistent with the statutory and regulatory purpose of providing

for an expeditious handling of LHWCA claims. We conclude that the

Director's interpretation of the relevant provisions is entitled to

deference. Accordingly, we hold that the ten-day time period for

20
the filing of motions for reconsideration of an ALJ's decision, as

set forth in 20 C.F.R. § 802.206(b)(1), must be calculated using

the computation method set forth in Federal Rule of Civil Procedure

6(a).

Federal Rule of Civil Procedure 6(a) requires that weekends

and holidays be excluded when calculating time periods of less than

eleven days. For that reason, Galle's July 1, 1998, motion for

reconsideration of the ALJ's decision filed June 19, 1998, was

timely. It follows that Galle's September 21, 1998, notice of

appeal to the Board was timely, and that the Board had jurisdiction

to consider Galle's appeal. Having established that the Board had

jurisdiction to entertain Galle's appeal, we proceed to

consideration of the Board's disposition on the merits of Galle's

claim.

IV.

An ALJ's benefit determination is reviewed using the

substantial evidence rule. See Avondale Indus. v. Pulliam, 137

F.3d 326, 328 (5th Cir. 1998). If the ALJ’s decision is free from

legal error, then the Board must affirm if there is substantial

evidence in the record to support the ALJ’s determination. See 33

U.S.C. § 921(b)(3). “Substantial evidence is evidence that a

reasonable mind might accept as adequate to support a conclusion.”

Pulliam, 137 F.3d at 328. This Court reviews the Board’s final

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decision for legal error and for confirmation that the Board

adhered to the substantial evidence standard of review applicable

to the ALJ’s underlying decision. See Port Cooper/T. Smith

Stevedoring Co., Inc. v. Hunter, 227 F.3d 285, 287 (5th Cir. 2000);

Pulliam, 137 F.3d at 328.

Galle raises a number of issues relating to the Board’s

affirmance of the ALJ’s decisions on the merits. Specifically,

Galle challenges: (1) the ALJ’s determination that Galle did not

suffer from a permanent total disability because he could perform

available alternative work, and (2) the ALJ’s determination that

certain medical services were not compensable. Galle also raises

several arguments attacking the accuracy or comprehensiveness of

the ALJ’s review of the record.

Having reviewed each of these arguments in light of the

parties' arguments and the record on appeal, we conclude that the

ALJ's factual determinations are supported by substantial evidence,

and that the decisions of the ALJ and the Board are free from legal

error. We therefore affirm the Board's final orders limiting

Galle's disability benefits to payment for permanent partial

disability and excluding certain medical services.

Mrs. Galle also challenges the ALJ’s determination that she

was not entitled to a “representative’s” fee in addition to her

stake in the outcome of the case. We agree with the ALJ’s holding

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that non-attorneys proceeding pro se cannot receive attorney’s fees

under the LHWCA. See Todd Shipyards Corp. v. Dir., OWCP, 545 F.2d

1176, 1181 (9th Cir. 1976) (examining statutory language framing

the availability of fees in terms of an attorney’s services). We

therefore affirm the Board’s order, which likewise affirmed the

ALJ’s determination that Mrs. Galle is not entitled to a

representative’s fee, in addition to her stake in the outcome.

CONCLUSION

The final decisions of the Benefits Review Board are in all

respects AFFIRMED.

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