Case: 09-60361 Document: 00511092935 Page: 1 Date Filed: 04/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 27, 2010
No. 09-60361 Lyle W. Cayce
Clerk
KENNETH E. CRAVEN,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS,
US DEPARTMENT OF LABOR, NORTHROP GRUMMAN SHIP SYSTEMS
INC.
Respondents.
Petition for Review of an Order of the
United States Department of Labor
Before BENAVIDES, STEWART, and SOUTHWICK, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
Petitioner-appellant Kenneth E. Craven appeals the Benefits Review
Board’s (“Board”) November 21, 2008 denial of his appeal to the Board,
contending that the Board erred when it determined it did not have jurisdiction
to consider his direct appeal that bypassed the Administrative Law Judge
(“ALJ”). For the reasons discussed in greater detail below, the Court dismisses
Craven’s appeal for lack of subject matter jurisdiction since, as a result of
Craven’s failure to exhaust his administrative remedies, this Court has no final
order from the Board to review.
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F ACTS AND P ROCEDURAL B ACKGROUND
On July 23, 2004, while acting in the course and scope of his employment
for one of the Respondent-appellees, Northrup Grumman, Craven sustained a
back injury. Initially, the company paid him temporary total disability. Once
it was determined that his injury was permanent, and not temporary, Craven
and Northrup debated the extent of his permanent disability (partial vs. total)
and the corresponding degree of additional compensation Craven should receive.
Shortly thereafter, Northrup began paying him benefits for permanent partial
disability. Craven, however, decided to pursue benefits for permanent total
disability.
In an attempt to resolve the dispute, the district director 1 held two
informal conferences pursuant to the LHWCA.2 After the conferences, the
district director ultimately recommended that Northrup pay Craven
compensation for permanent partial disability. The company accepted the
district director’s recommendation, but Craven disagreed. Craven, however, did
not file his appeal with the ALJ–in accordance with the administrative scheme
Congress established in the LHWCA. Instead, Craven bypassed the ALJ and
filed his appeal directly with the Board, in an attempt to have the Board order
1
See LONGSHORE AND HARBOR WORKERS ’ COM PENSATION ACT (“LHWCA”), 33 U.S.C.
§§901-50, 2(7), 19, 39 (b); 20 C.F.R. § 701.301(a)(7). The statutory term “deputy commissioner”
and the current administrative designation “district director” are interchangeable terms.
2
See 33 U.S.C. § 928(b) (requiring that, in the event that a dispute arises as to the
amount of additional compensation to which a claimant may be entitled, the deputy
commissioner shall set the matter for an informal hearing and issue a written
recommendation).
2
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the district director to issue a recommendation in his favor regarding the extent
of his disability.3
On November 21, 2008, the Board dismissed Craven’s appeal. In doing so,
the Board did not engage in an analysis of the merits underlying Craven’s claim
for additional disability compensation, nor did the Board evaluate the merits of
the district director’s informal recommendation. Instead, the Board dismissed
Craven’s appeal for lack of jurisdiction, finding that:
The [district director’s] memoranda of informal conferences are not
final appealable actions; they do not purport to be a final decision or
resolve matters within the authority of the district director. . . .
[Thus, Craven’s] recourse is with the administrative law judge, as
the issue raised by claimant concerns the extent of his disability,
which requires fact-finding by an administrative law judge in order
to resolve a dispute. As the district director’s memoranda of
informal conferences and associated correspondence are not final
decisions, they are not appealable under Section 21(b)(3) [of the
LHWCA].
Thus, the Board determined that it had no jurisdiction to hear Craven’s appeal
because, as a result of his failure to file his appeal with the ALJ for an
evidentiary hearing, Craven’s record contained no findings of fact and no “final
action” made by ALJ for the Board to review.
3
In Andrepont v. Murphy Exploration and Production Co., 566 F.3d 415 (5th Cir. 2009),
this Court determined that an unfavorable recommendation from the district director on the
issue of additional compensation, even if the claimant was later successful on that issue before
the ALJ, would preclude the claimant’s recovery of attorney’s fees pursuant to § 28(b) of the
LHWCA. See 33 U.S.C. § 928(b). Thus, although Craven recognized that the LHWCA only
administratively provides for a direct appeal to the ALJ following the informal
recommendation of a district director, Craven argued that as a result of this Court’s decision
in Andrepont, he should be permitted to appeal the issue of attorney’s fees directly to the
Board.
3
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After the Board dismissed his direct appeal for lack of jurisdiction, Craven
timely filed the instant appeal before us now. On appeal, Craven raises a
number of different issues. The crux of his appeal is that the district director
erred in issuing an informal memoranda that recommended permanent partial
disability–as opposed to permanent total disability. Craven also asserts several
arguments regarding this Court’s decision in Andrepont v. Murphy Exploration
and Production Co., 566 F.3d 415 (5th Cir. 2009). Craven contends that the
Court’s decision in Andrepont violates the Administrative Procedures Act4
(“APA”) as well as his constitutional right to due process. Craven requests that
this Court reconsider Andrepont and correct what he has characterized to be a
constitutional flaw in the Court’s decision.
S TANDARD OF R EVIEW
We review a decision of the Board “under the same standard as it reviews
the decision of the ALJ: Whether the decision is supported by substantial
evidence and is in accordance with the law.” Empire United Stevedores v. Gatlin,
936 F.2d 819, 822 (5th Cir. 1991) (citations omitted). In this case, however,
Craven did not appeal to the ALJ and instead filed a direct appeal with the
Board. Thus, as a result of Craven’s failure to comply with the LHWCA and
exhaust his administrative remedies, there was no decision from an ALJ for the
Board to review. The Board, therefore, had no jurisdiction to issue a final order
on the merits of Craven’s appeal.
Because the Board did not issue a final order in this case, the first
question we must address is whether the Court has jurisdiction to hear the
4
See 5 U.S.C. § 551 et seq.
4
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instant appeal. See Said v. Gonzales, 488 F.3d 668, 670-71 (5th Cir. 2007) (“We
must raise the issue of our appellate jurisdiction sua sponte, if necessary.”).
T HIS C OURT’S S UBJECT M ATTER J URISDICTION
“This court’s jurisdiction to hear a petition for review from an LHWCA
administrative decision is derived solely from the appeal provision contained in
33 U.S.C. § 921(c).” Gulf Best Elec., Inc. v. Methe, 396 F.3d 601, 603-04 (5th Cir.
2004). A brief review of the LHWCA’s administrative scheme highlights the
jurisdictional defects created by Craven’s attempt to bypass the ALJ and appeal
his case directly to the Board.
The LHWCA and Department of Labor’s (“DOL”) implementing
regulations have established a three-tier process for adjudicating claims: 1)
informal mediation before the district director; 2) formal hearings and
fact-findings by an ALJ; and 3) appellate review by the Board (potentially
followed by a circuit court). Claims are initially administered by the district
director.5 The DOL’s regulations state that “the district directors are empowered
to amicably and promptly resolve such problems by informal procedures.” 6 Yet
in cases such as the one presently before the Court–where the parties do not
reach an agreem en t follow ing the district director’s inform al
5
See 33 U.S.C. § 919(a), (b).
6
20 C.F.R. § 702.301.
5
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recommendation–the district director has no authority to issue a compensation
order.7 Instead, the parties must take their claims to an ALJ. 8
The LHWCA makes clear that any evidentiary hearing “shall be conducted
by a[n] administrative law judge[,]” (not a district director), and the hearing
“shall be conducted in accordance with the provisions of section 554 of Title 5
[APA].”9 If the claimant is dissatisfied with the outcome following the hearing
before the ALJ, the claimant can appeal to the Board.10 Notably, the LHWCA
contains no provision that contemplates bypassing the evidentiary hearing
before the ALJ and appealing directly to the Board.
Instead, in the final and third tier of the LHWCA’s administrative scheme,
the DOL’s regulations stipulate that “appeals may be taken from compensation
orders when they have been filed as provided for in § 702.349.”11 The Board’s
own regulations contain almost identical provisions.12 The Board’s decisions
7
Under these circumstances, the district director’s informal recommendation is not
even transmitted to the ALJ. See 20 C.F.R. § 702.317(c).
8
“The relevant language states that an ALJ has authority ‘to hear and determine all
questions in respect of such claim’ and the phrase ‘such claim’ references ‘a claim for
compensation.”’ Temp. Employment Serv. v. Trinity Marine Group, Inc., 261 F.3d 456, 461 (5th
Cir. 2001) (quoting 33 U.S.C. § 919(a)).
9
33 U.S.C. § 919(d). At this point a formal record is created, and the ALJ must set
forth his factual findings and conclusions on disputed issues in a written decision, which is
filed by the district director. 20 C.F.R. §§ 702.344, 702.348, 702.349; 33 U.S.C. § 919(e).
10
33 U.S.C. § 921(b)(1).
11
20 C.F.R. § 702.392.
12
20 C.F.R. § 801.102(a) (stating that the Board hears appeals “from decisions or
orders with respect to claims for compensation or benefits”); § 802.301(a) (stating that the
Board cannot “engage in a de novo proceeding or unrestricted review of a case brought before
it[];” it is only “authorized to review the findings of fact and conclusions of law on which the
decision or order appealed from was based.”).
6
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must be based on the “hearing record” (created during the hearing before the
ALJ), and “[t]he findings of fact in the decision under review by the Board shall
be conclusive if supported by [the] substantial evidence . . .” contained within
the ALJ’s evidentiary record.13
In the present case, Craven’s failure to appeal the district director’s
recommendation to the ALJ for an evidentiary hearing precludes this Court’s
jurisdiction to hear the instant appeal. That is because “[t]his court’s
jurisdiction to hear a petition for review from an LHWCA administrative
decision is derived solely from the appeal provision contained in 33 U.S.C. §
921(c).” Gulf Best. Elec. Inc. v. Methe, 396 F.3d 601, 603-604 (5th Cir. 2004).
Section 921(c) limits this Court’s review to a review of the “final order of the
Board.”
There is no final order in this case.14 Craven’s attempt to bypass the ALJ
is particularly problematic because the LHWCA grants the ALJ the exclusive
authority to create an evidentiary record upon which an appeal must be based.
In turn, the Board’s own appellate jurisdiction is limited to reviewing the ALJ’s
decision based on the substantial evidence in the record–that is, the LHWCA
does not grant the Board authority “to substitute its views for those of the ALJ.”
13
20 C.F.R. § 802.301(a). Notably, the regulations do not permit the parties to submit
new evidence to the Board that was not first submitted to the ALJ during the administrative
hearing. See id. § 301(b) (“Parties shall not submit new evidence to the Board. Any evidence
submitted by a party which is not part of the record developed at the hearing before the
administrative law judge will be returned without being considered by the Board.”).
14
“The “‘final order’ requirement follows the contours of the finality rule expressed in
28 U.S.C. § 1291.” Newpark Shipbuilding & Repair, Inc. v. Roundtree, 698 F.2d 743, 746 (5th
Cir. 1983) (citing Dir., Office of Workers’ Comp. Programs v. Brodka, 643 F.2d 159, 161 (3d Cir.
1981); Nat’l Steel and Shipbuilding Co. v. Dir., Office of Workers’ Comp. Programs, 626 F.2d
106, 107-08 (9th Cir. 1980)).
7
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Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 944 (5th Cir. 1991).
Consequently, because 20 C.F.R. § 802.301(a) precludes the Board from engaging
“in a de novo proceeding or unrestricted review of a case brought before it . . . ”
and limits the Board’s authority to a “review [of] the findings of fact and
conclusions of law on which the decision or order appealed from was based,” we
conclude that the Board was correct to dismiss Craven’s appeal for lack of
jurisdiction. The Board could not reach a decision on the merits because the
Board was not presented with anything within its statutory purview to
review–that is, in this case there is no evidentiary record or compensation order
issued by an ALJ. The Board, therefore, was correct to decline to issue a final
order on the merits of Craven’s claim for additional disability compensation.
With no final order from the Board for this Court to review, Craven’s
instant appeal is solely predicated on the recommendation letter and informal
hearing memoranda issued by the district director. “The LHWCA does not,
however, extend to this Court original jurisdiction over the actions of the
Director in the exercise of her administrative authority.” Ingalls Shipbuilding,
Inc. v. Asbestos Health Claimants, 17 F.3d 130, 133 (5th Cir. 1994).
Consequently, the Court does not have jurisdiction to hear Craven’s appeal. Id.
(“Review by this Court is limited to final orders made by the Board in the
exercise of its adjudicatory authority.”) (citing 33 U.S.C. § 921(c)); see also
Mijangos, 948 F.2d at 943 (dismissing for lack of jurisdiction since “under 33
U.S.C. § 921(c), this Court has jurisdiction to review only final orders of the
Board.”).
To conclude otherwise and permit Craven to proceed now on appeal would
enable claimants like Craven to circumvent the LHWCA’s administrative
8
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scheme–an administrative scheme that Congress designed “to encourage the
prompt and efficient administration of compensation claims.” Rodriguez v.
Compass Shipping Co., Ltd., 451 U.S. 596, 612 (1981).15
Accordingly, we DISMISS Craven’s appeal for lack of subject matter
jurisdiction. All pending motions are denied.
15
Because we do not have jurisdiction to hear his appeal, we do not reach a conclusion
as to whether the district director erred in failing to recommend that Craven receive
compensation for permanent total disability. Likewise, we do not address Craven’s arguments
that Andrepont’s interpretation of 33 U.S.C. § 928(b) violates the APA or his constitutional
right to due process. First, we find it important to note that “one panel of this court cannot
overrule the decision of another panel.” Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247
(5th Cir. 1997). And finally, even if Craven’s argument that this Court’s decision in Andrepont
effectively denied him some sort of right to attorney’s fees contained some merit, his
constitutional arguments regarding the Andrepont’s articulation of § 928(b) would not cure the
jurisdictional defects created by his attempt to bypass the ALJ and circumvent the
administrative scheme established in the LHWCA.
9