Cooper Stevedoring Co. v. Director, Office of Workers' Compensation Programs
Opinion of the Court
Rudolph Dorsey (hereinafter claimant) sought and received an award for continuing temporary total disability compensation under the Longshore and Harbor Workers’ Compensation Act (hereinafter LHWCA), 33 U.S.C. § 901 et seq. (Supp. II. 1984) This appeal challenges an order of the Benefits Review Board of the United States Department of Labor vacating a conclusion of law by the Administrative Law Judge (hereinafter AU) and remanding the case for further findings of fact. Because we conclude that the order of the Benefits Review Board is not “final” in accordance with 33 U.S.C. § 921(c) and is therefore not subject to judicial review, we dismiss the appeal for lack of jurisdiction.
I.
BACKGROUND
On June 7, 1980, claimant was employed by Cooper Stevedoring Company, Inc. (hereinafter Cooper) as a longshoreman. Claimant was assigned the task of handling cargo aboard a vessel moored in the Port of Mobile, Alabama. Claimant sustained injuries to his back, knee and foot when he jumped approximately eight feet down into the hold of the ship in order to escape the path of a falling boom.
Cooper
The AU conducted a hearing on August 3, 1981 and granted claimant’s request to hold the record open sixty days for the addition of supplemental medical evidence. On December 8, 1981, the AU ruled that claimant was temporarily totally disabled and was entitled to compensation from the date of injury plus interest less amounts already paid. At some point, the third-party action against the owner of the vessel was settled for $56,000.
It is undisputed that claimant did not receive Cooper’s written approval of the settlement. Claimant did, however, reimburse Cooper for compensation and medical benefits provided through January 18, 1982.
Cooper filed a motion to dismiss and a motion for reconsideration on December 11, 1981, and December 23, 1981 respectively. These motions raised the issue of whether claimant’s settlement of the third-party claim in the absence of Cooper’s written approval forfeited claimants right to additional compensation under 33 U.S.C. § 933(g).
Cooper appealed to the Benefits Review Board on May 19, 1982. During the pend-ency of the appeal, Congress amended § 933(g).
On March 13,1986, Cooper filed a motion for reconsideration en banc. The Benefit Review Board denied this motion on May 29, 1986. Cooper filed a petition for review by this court on June 27, 1986. Thereafter, the Director of the Office of Workers’ Compensation Programs filed a motion to dismiss the petition for lack of jurisdiction. This court denied the motion on August 29, 1986, under the reservation that the jurisdictional issues would be carried with the case.
II.
DISCUSSION
Cooper argues that the Benefits Review Board erroneously construed § 933(g) as amended. As indicated, the Director of the
33 U.S.C. § 921(c) provides in pertinent part:
[a]ny person adversely affected or aggrieved by a final order of the [Benefits Review] Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred, by filing in such court within sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside.
(Emphasis added). This court has acknowledged that the finality requirement for appellate review prevents piecemeal adjudication and avoids delays caused by intermittent appeals.
Finality as a condition of review is an historic characteristic of federal appellate procedure. It was written into the first Judiciary Act and has been departed from only when observance of it would practically defeat the right to any review at all. Since the right to a judgment from more than one court is a matter of grace and not a necessary ingredient of justice, Congress from the very beginning has, by forbidding piecemeal disposition on appeal of what for practical purposes is a single controversy, set itself against enfeebling judicial administration; Thereby is avoided the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment. To be effective, judicial administration must not be leaden-footed. Its momentum would be arrested by permitting separate review of the component elements in a unified cause.
Freeman v. Califano, 574 F.2d 264, 266 (5th Cir. 1978)
A final order is “one which ends the litigation ... and leaves nothing for the court to do but execute the judgment.”
. Cooper and its workers’ compensation carrier, the Insurance Company of North America, are both parties to this action. Hereinafter, they will be referred to jointly as "Cooper.”
. Claimant's wife also filed a claim for loss of consortium.
. Claimant’s wife received $10,000 for settlement of her loss of consortium claim.
. Claimant paid employer $32,308.04 in satisfaction of the lien.
. At the time, 33 U.S.C. § 933(g) (1982) provided:
If compromise with such third person is made by the person entitled to compensation or such representative of an amount less than the compensation to which such person or representative would be entitled to under this chapter the employer shall be liable for compensation as determined in subsection (f) of this section only if the written approval of such compromise is obtained from the employer and its insurance carrier by the person entitled to compensation or such representative at the time of or prior to such compromise on a form provided by the Secretary and filed in the office of the deputy commissioner*1013 having jurisdiction of such injury or death within thirty days after such compromise is made.
In 1984, this section was revised and now reads in pertinent part:
(1) If the person entitled to compensation (or the person’s representative) enters into a settlement with a third person referred to in subsection (a) of this section for an amount less than the compensation to which the person (or the person’s representative) would be entitled under this chapter, the employer shall be liable for compensation as determined under subsection (f) of this section only if written approval of the settlement is obtained from the employer and the employer’s carrier, before the settlement is executed, and by the person entitled to compensation (or the person’s representative). The approval shall be made on a form provided by the Secretary and shall be filed in the office of the deputy commissioner within thirty days after the settlement is entered into.
(2) If no written approval of the settlement is obtained and filed as required by paragraph (1), or if the employee fails to notify the employer of any settlement obtained from or judgment rendered against a third person, all rights to compensation and medical benefits under this chapter shall be terminated, regardless of whether the employer or the employer’s insurer has made payments or acknowledged entitlement to benefits under this chapter.
. The ALJ found the record inconclusive with respect to the exact date of the settlement of claimant’s third-party claims.
. See supra note 5.
. According to the order of the Benefit Review Board, if claimant’s third-party settlement was executed prior to the ALJ’s December 8, 1981 order awarding compensation for temporary total disability, claimant was not "entitled to compensation” at the time of the settlement and written approval was unnecessary under § 933(g)(1); if the settlement was executed after the December 8, 1981 order, claimant was “entitled to compensation” at the time of the settlement and written approval was required under § 933(g)(1).
. The Eleventh Circuit, in Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
. If an order does not end the litigation, it must be determined if the collateral order doctrine applies. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). This doctrine permits appeals from orders which "(1) finally determine claims collateral to and separable from the substance of other claims in the action; (2) cannot be reviewed along with the eventual final judgment because by then effective review will be precluded and rights conferred will be lost and (3) are too important to be denied review because they present a serious and unsettled question of law." In re King Memorial Hospital, Inc., 767 F.2d 1508, 1510 (11th Cir. 1985). The collateral order doctrine does not apply here because the Benefit Review Board’s construction of § 933(g) will remain subject to review upon final judgment.
Reference
- Full Case Name
- COOPER STEVEDORING COMPANY, INC. and Insurance Company of North America v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and Ralph M. Dorsey
- Cited By
- 3 cases
- Status
- Published