Charles Zumwalt v. Nassco

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2019
• Docket: 18-72257
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHARLES ZUMWALT; JEFFREY No. 18-72257 WINTER, BRB No. 17-0048 Petitioners,

v. MEMORANDUM*

NATIONAL STEEL AND SHIPBUILDING COMPANY; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,

Respondents.

On Petition for Review of an Order of the Benefits Review Board

Submitted December 5, 2019** San Francisco, California

Before: GOULD and CALLAHAN, Circuit Judges, and BOUGH,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. Jeffrey Winter, one of the attorneys for claimant Charles Zumwalt, petitions

for review of the decisions of the Benefits Review Board (“Board”) affirming the

Administrative Law Judge’s (“ALJ’s”) decisions on attorney’s fees under the

Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901–50 (“the

Act”). We have jurisdiction pursuant to 33 U.S.C. § 921(c). We review questions

of law de novo, Force v. Dir., OWCP, 938 F.2d 981, 983 (9th Cir. 1991), and we

review decisions by the Board for errors of law and adherence to the substantial

evidence standard, Albina Engine & Mach. v. Dir., OWCP, 627 F.3d 1293, 1297

(9th Cir. 2010). We dismiss the petition in part and deny the petition in part.

In 2006 and 2007, Zumwalt filed a claim for benefits under the Act for

work-related knee and psychological injuries. The ALJ awarded Zumwalt

benefits. Upon the conclusion of the claim litigation, Zumwalt’s attorneys, Winter

and Kim L. Ellis, moved for an award of attorney’s fees and costs under 33 U.S.C.

§ 928. The ALJ issued a decision awarding attorney’s fees, which was filed in the

office of the District Director and served on all parties on September 23, 2016. On

October 6, 2016, Winter moved for reconsideration of the ALJ’s decision. The

ALJ denied the reconsideration motion as untimely under 20 C.F.R.

§ 802.206(b)(1), which provides a 10-day deadline to file a reconsideration motion.

Winter then filed a petition for review to the Board challenging each of the ALJ’s

decisions on attorney’s fees. The Board dismissed Winter’s appeal as untimely,

2 18-72257 and affirmed the ALJ’s decision denying the reconsideration motion as untimely.

On May 26, 2017, Winter timely moved for reconsideration of the Board’s

decision with a suggestion for reconsideration en banc. The Board granted

reconsideration and affirmed the dismissal of Winter’s appeal as untimely in an en

banc decision. On July 13, 2018, Winter timely moved for reconsideration again,

now arguing, for the first time in the administrative proceedings, that the ALJ’s

decisions on attorney’s fees were void under Lucia v. SEC, 138 S. Ct. 2044 (2018)

because the ALJ was not duly appointed under the Appointments Clause of the

United States Constitution. The Board denied Winter’s second reconsideration

motion.

Winter thereafter timely appealed both of the Board’s decisions on

reconsideration to this court.

On appeal, Winter contends that the ALJ’s decisions on attorney’s fees

should be vacated pursuant to Lucia v. SEC, 138 S. Ct. 2044 (2018). We do not

reach this issue. The Department of Labor regulations expressly require a

petitioner to raise all issues for appeal in “a petition [for] review to the Board.”

20 C.F.R. § 802.211(a). Because Winter did not raise this argument in his petition

for review to the Board, he has forfeited the issue on appeal. See United States v.

L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952) (“[O]rderly procedure and

good administration require that objections to the proceedings of an administrative

3 18-72257 agency be made while it has opportunity for correction in order to raise issues

reviewable by the courts.”); see also Island Creek Coal Co. v. Bryan, 937 F.3d

738, 750-51 (6th Cir. 2019) (holding that claimants forfeited the Appointments

Clause claim under the Black Lungs Benefits Act when they raised it before the

Board for the first time in a reconsideration motion). We do not make an

exception here because there are no exceptional circumstances that would warrant

review of this appeal. Marathon Oil Co. v. United States, 807 F.2d 759, 768 (9th

Cir. 1986). We do not consider Winter’s argument that this court should excuse

his forfeiture of the Appointments Clause claim due to excusable neglect because

he raised this argument for the first time in the reply brief. Autotel v. Nev. Bell Tel.

Co., 697 F.3d 846, 852 n.3 (9th Cir. 2012).

Winter also contends that the ALJ erred in denying his motion for

reconsideration as untimely because his motion was timely filed under the ALJ’s

own regulations governing the filing of reconsideration motions, 29 C.F.R.

§§ 18.32(c), 18.93, which add three additional days for mail service to the 10-day

deadline to file a reconsideration motion. We disagree. The ALJ properly

concluded that Board regulations, including 20 C.F.R. § 802.206, govern the

deadline to file a reconsideration motion, which do not authorize a party to add

additional days for mail service to a deadline. See 29 C.F.R. § 18.10(a) (ALJ

regulation providing that “[i]f a specific Department of Labor regulation governs a

4 18-72257 proceeding” the DOL regulation applies and the ALJ’s regulations only “apply to

situations not addressed in the governing regulation”); 20 C.F.R. § 802.206(a),

(b)(1) (Board regulation providing “[i]n a case involving a claim filed under [the

Act] . . . , a timely motion for reconsideration for purposes of [tolling the time to

file a notice of appeal to the Board] 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.”). Contrary to Winter’s contention, Galle v. Director, OWCP, 246

F.3d 440 (5th Cir. 2001) does not compel a different result.

PETITION DISMISSED IN PART AND DENIED IN PART; ORDERS

OF THE BOARD AFFIRMED.

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