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
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
21 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
22 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.