Neely v. Benefits Review Board

139 F.3d 276, 1998 WL 127511

• Court: Court of Appeals for the First Circuit
• Decided: March 26, 1998
• Docket: 96-2299
• Status: Published

Opinions

BOUDIN, Circuit Judge.

Martin Neely suffered a back injury while employed by Bath Iron Works (“Bath”) and sought compensation under the Longshore and Harborworkers’ Compensation Act, 33 U.S.C. § 901 et seq. (“The Longshore Act” or the “Act”). Compensation was denied on the ground that Bath had voluntarily paid in full for Neely’s temporary disability and for all outstanding medical expenses. Neely, supported by the Secretary of Labor, seeks review in this court.

The pertinent facts are undisputed. Bath maintains a shipyard for construction and repair in Bath, Maine. Neely, while employed as a tinsmith, suffered back injuries on September 29 and 30, 1992. Neely incurred some medical expenses and was out of work for about two weeks in October 1992, but then returned to work. Bath paid Neely compensation for his temporary disability and for his medical expenses.

There have been no further periods of disability due to the injury. However, under the Longshore Act, the compensation regime is one of continuing protection: subject to statute of limitations provisions, 33 U.S.C. § 913, employer liability for a covered accident can involve ongoing responsibility to pay compensation where partial or complete disability occurs or reoccurs, and for medical expenses as they accumulate. 33 U.S.C. §§ 907, 908.

In October 1992, Bath filed a notice of injury with the federal Office of Workers’ Compensation Programs, the agency within the Labor Department that administers workers’ compensation under the Longshore Act.¹ Bath also filed a notice that it was controverting Neely’s right to compensation under that statute, see 33 U.S.C. § 914(d), because “Claimant [is] pursuing [compensation] under State Act.” It is common for workers like Neely to be protected both by the federal statute and by Maine’s counterpart workers’ compensation law. See, e.g., Reich v. Bath Iron Works Corp., 42 F.3d 74, 76 (1st Cir.1994).

Then, on May 4,1994, Neely filed an “Employee’s Claim for Compensation” with the Labor Department on account of the same injury and on June 9, 1994, Bath filed a new notice of contravention containing the following, apparently boilerplate, response: “Bath ... disputes the fact of injury, nature and extent of disability, timeliness of filing, and responsible carrier.” It appears that Bath had continued to pay ongoing medical expenses for Neely’s injury while refusing to acknowledge to Neely that he was entitled to such payments under the Longshore Act.

After informal proceedings failed to resolve the dispute, the ease was referred to an administrative law judge. See 33 U.S.C. § 919(c), (d). At the start of the hearing, Neely agreed that, he was not seeking a monetary award but said that he wanted an order requiring Bath to file forms with the Labor Department to acknowledge “that payments in fact made were as much under the Longshore Act as under the state act.” The Longshore Act requires the employer to file notices upon making a first payment of compensation under the Act, or suspending payment, or making a final payment. 33 U.S.C. §§ 914(c),(g).

In response, Bath told the ALJ — contrary to its earlier filings — that it did not now dispute that Neely and his accident were covered by the Longshore Act. However, Bath said correctly that it was entitled to a credit against Longshore Act liability for payments made for the same injury under state law. 33 U.S.C. § 903(e). Therefore, it argued it should not be required to file additional forms suggesting that benefits were due under the Longshore Act.

The ALJ then ruled that Neely was not entitled to relief. He said that the payments had been made under state law, so that no forms had to be filed under the Longshore Act. He also said that Neely was not prejudiced because Neely’s claim of compensation tolled the statute of limitations. Neely appealed the decision to the Benefits Review Board, which sustained the ALJ, quoting language from our Reich decision that payments made under the Maine statute “erase[ ] ... liability under the federal statute.” 42 F.3d at 76.

Neely then appealed to this court, this time eliciting a brief in partial support of his position filed by the Solicitor of the Labor Department, on behalf of the Director of the Office of Workers Compensation Programs. Recasting the case somewhat, the Solicitor urged that Neely was entitled to an order determining that his injury was covered by the Act but not to an order requiring Bath to file the forms in question. Bath defended the Benefits Review Board in full, adding tersely that no case or controversy existed and that Neely’s request was essentially one for “an advisory opinion.”

We obtained supplemental memoranda on the jurisdictional question and now turn to the issues on appeal. At the outset, a majority of the panel concludes that a ease or controversy exists under Article III of the Constitution. For Article III purposes, it does not matter whether we look to Neely’s original request that notices be filed or to the Solicitor’s argument for a declaratory ruling: in substance both seek a ruling that Neely’s accident was covered by the Act.

The “case or controversy” label is used to embrace a number of related but different problems of judicial authority, including the requirement of a concrete dispute between adversaries, standing, ripeness,- mootness and limitations relating to political questions. See E. Chemerinsky, Federal Jurisdiction § 2.1, at 41 (1989). In this case, there are adverse parties; Neely has standing as to his coverage under the Act; the coverage issue will not be narrowed or illuminated (“ripened”) by further events; and the issue certainly does not present a political question.

Rather, our concern is whether this is actually a “live” controversy or whether the likelihood of any practical effect from a ruling is so slight as to raise nothing more than a hypothetical question. See Raines v. Byrd, — U.S. -, —, 117 S.Ct. 2312, 2317, 138 L.Ed.2d 849 (1997), Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 463-64, 81 L.Ed. 617 (1937). The absence of any request for a dollar award is not fatal; declaratory relief alone may be sought where it may have some meaningful effect. See id. But Article III requires some minimum likelihood that the relief sought actually does or could matter. See id.2

In this instance it is undisputed that Neely suffered an injury severe enough to cause some temporary disability and medical treatment, that the disability abated, and that the medical treatment continued for a period. The ALJ decision tells us — without dispute from the employer — that Neely’s filed claim alone has tolled the statute of limitations. Thus, a renewed disability traced to the same injury, or further medical expenses, could conceivably give rise to a further award under the federal statute.

Now, whether this will happen is uncertain, but it certainly could. Neely’s was a back injury, an injury famously a source of recurring problems; and Neely’s injury was not a trivial one since it involved two episodes of inability to work at all, albeit brief ones; also, his medical expenses are said to have continued^ thereafter, possibly up to the time that he filed his claim almost a year and a half after the initial disability. At the very least, Neely had some basis for fearing that he might have to make a further claim.

If he did make such a claim, the ruling now sought would remove from dispute the question whether his injury was a covered accident, a matter about which there are often quite difficult disputes. See, e.g., Pittman Mechanical Contractors, Inc. v. Director, Office of Workers’ Compensation Programs, 35 F.3d 122, 123 (1994). Here, in fact, Bath disclaimed coverage when Neely filed his claim. Its later admissions before the ALJ would make farther dispute by Bath more difficult but not necessarily impossible.

Thus, what Neely would gain from a ruling now amounts to this: the emotional assurance of coverage; a resolution of the issue— if Bath chooses to dispute it — -while memories are fresh and records easily available; and administrative speed, in the event of a future claim by Neely based on the same accident, so long as coverage was the only issue in dispute. The Solicitor tells us that ALJ dockets are crowded and that any dispute about a claim can delay resolution for many months, if not more.

These are not overwhelming effects. They are surely less than the practical consequences of a declaratory ruling about insurance coverage, in advance of an incident, where a ruling against coverage will induce the insured to seek new coverage or take some other action. See, e.g., Wisconsin Power & Light Co. v. Century Indemnity Co., 130 F.3d 787, 792-93 (7th Cir.1997). But they are also not trivial advantages and might seem significant to a worker with limited resources faced with pursuing an administrative claim against an experienced corporate opponent. We think that there is enough at stake for Neely to permit the case to proceed under Article III.

This brings us to the merits. The relief originally sought by Neely, it will be recalled, was the enforcement of provisions in 33 U.S.C. § 914 that require the employer to file forms with the Labor Department at the time the first payment is made, 33 U.S.C. § 914(c), and on the suspension or termination of compensation, 33 U.S.C. § 914(c), (g). The purpose of these provisions appears to be to permit the Department of Labor to keep track of payments and to take remedial action on its own initiative, as it is allowed to do. 33 U.S.C. § 914(h).

We are inclined to agree with the Solicitor that these filing provisions are not designed to confer rights on the employee or to be enforced by him or her. The employee, after all, knows whether compensation payments have started or ceased. Further, the filing of the forms would not itself settle coverage definitively in Neely’s favor; they might be an admission but Neely already has that from the ALJ conference. What Neely really needs — to protect against later disputes as to coverage — is a declaration of coverage.

The Solicitor says that such an order is supported by statutory language and by court and administrative precedent. The statutory argument is based on requirements that a hearing “shall” be ordered on disputed claims, 33 U.S.C. § 919(e), and that the ALJ “shall” file an order “rejecting the claim or making the award (referred to in this chapter as a compensation order) ..., “ 33 U.S.C. § 919(e). But whether a request for a declaratory ruling as to coverage falls within the rubric of “claim for compensation,” or is otherwise appropriate, is not answered by referring to repeated uses of the term “shall.”

Nor do we think much help is provided by Ingalls Shipbuilding v. Asbestos Health Claimants, 17 F.3d 130 (5th Cir.1994), the main judicial precedent relied on by the Solicitor. There, the district director refused to refer numerous filed asbestos claims to an ALJ for resolution. On suit by the employer, the court of appeals ruled that the district director had a mandatory obligation to transfer claims to the administrative law judge on request of “any interested party.” Id. at 133 (quoting 33 U.S.C. § 919(c)). But Ingalls did not decide whether and when an ALJ could or must issue declaratory orders to address coverage issues.³.

Finally, the administrative precedent cited is weak. Kinnes v. General Dynamics Corp., 25 B.R.B.S. 311 (1992), sustained a federal proceeding filed after a state award where the former was for the purpose of securing “additional compensation.” In the other case cited, Hoodye v. Empire/United Stevedores, 23 B.R.B.S. 341 (1990), the employer who admitted that continuing disability payments were due to the employee sought to prevent entry of an award by admitting such liability in the course of the proceeding; in the present case there is no proven continuing disability, nor proof of any unpaid medical expenses.

Our problem is not one of ambiguity in the Act but of a typical gap in a complex statutory scheme. See, e.g., United States v. Vak-nin, 112 F.3d 579, 589 (1st Cir.1997). It is doubtful that Congress considered, or that its language was drafted to deal with, the relatively rare problem of the claimant who suffered an injury creating disability, was fully compensated for the disability, and was then interested in a declaratory ruling to guard against recurrence or further medical expenses. Indeed, the Solicitor’s brief tells us that no legislative history on the issue can be found, nor are we surprised.

The Secretary has rulemaking power, 33 U.S.C. § 939, but has not used it to close the gap in question (for example, by defining compensation orders to cover cases like this one). In this context, the omission is not fatal: most of the time, policy choices can be made by the agency either through rule making or adjudication. See SEC v. Chenery Corp., 332 U.S. 194, 202-03, 67 S.Ct. 1575, 1580-81, 91 L.Ed. 1995 (1947). Here, however, the ALJ and the Benefits Review Board decided the issue the other way. And because of the peculiar structure of the Act, the Secretary and her delegate do not review individual decisions.

One might ask why this should matter. Policy-making authority under the Longshore Act belongs to the Secretary, not to the ALJ or the Benefits Review Board. See Wood v. United States Dep’t of Labor, 112 F.3d 592, 595 (1997). The Solicitor has told us, on behalf of the Secretary’s policy-making delegate (the Director) that this kind of compensation order is proper. But substantial precedent, backed by the leading treatise on administrative law, tells us that briefs submitted in litigation are not the proper place for agencies to “make policy.”⁴

Whether this should always be so might be debated. To be sure, on matters peculiarly within the knowledge of the parties, an adjudicatory finding — however imbued with policy considerations — might be sometimes unfair unless and until the parties had been heard. In other instances, one might have some doubt whether the view expressed informally through a brief was really that of the policy maker (as opposed to counsel). It is not apparent that any of the reasons have much bearing on the present case.

In all events, the Supreme Court, has been willing to treat the views of the Secretary of Labor expressed in a brief as entitled to some deference, even though not the full deference due under the Chevron doctrine, see Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to a policy-making judgment made in the course of a formal proceeding. See Metropolitan Stevedore Co. v. Rambo, — U.S. -, -, 117 S.Ct. 1953, 1962, 138 L.Ed.2d 327 (1997); see also Massachusetts v. FDIC, 102 F.3d 615, 621 (1st Cir.1996) (stating that “less formal agency determinations may be accorded something less than full Chevron deference”).

Rambo is also pertinent to the merits of the present case. There, á longshoreman injured on the job was awarded permanent, partial disability but later, payments were discontinued because his earnings had increased beyond his pre-injury wages. The employee sought a continuing award of nominal compensation to toll the statute of limitations and permit a future claim if his wages declined and resumed disability payments might otherwise have been proper. 33 U.S.C. § 913(b)(2) (final sentence). The ALJ refused.

Ultimately, the Supreme Court held that such award of nominal compensation could and should be entered, assuming “a significant potential that the injury will cause diminished capacity under future conditions.” Id. at -, 117 S.Ct. at 1963. Rambo is thus authority for a compensation order without any actual harm presently uncompensated. Further, the nominal compensation order in Rambo undercut the statute of limitations and, in that sense, was more in tension with an express provision of the Act than is the kind of relief sought by Neely in this case.

Of course, the context in Rambo was somewhat different. The consequences for a worker there, in the absence of nominal compensation, was a risk of being completely foreclosed from future recovery by the statute of limitations. Here, the statute is supposedly tolled, and we are talking only about administrative inconvenience and delay if relief now is denied. About the most one can say is that Rombo removes any statutory bar to declaratory compensation orders and, in an analogous situation, encouraged a protective approach somewhat akin to what the Solicitor urges here.

Rombo required, as a condition of nominal compensation, that the claimant show “a significant possibility” of future disability based on the past injury. — U.S. at -, 117 S.Ct. at 1964. We think that the declaratory relief sought here is sufficiently similar that the same showing, as to either disability or expenses, should be imposed on Neely before the employer is required to litigate or the ALJ to resolve an issue of disputed coverage. On remand, Bath can insist upon such a showing as a part of Neely’s claim.

The Secretary is free to fine-tune or adjust such requirements by regulation. The Supreme Court in Rombo made clear that the Secretary does have rule-making authority in this realm. See — U.S. at -, 117 S.Ct. at 1962. Its exercise would give guidance to litigants, ALJs and the Review Board and would save time, expense and confusion in future court proceedings.

The decision of the Benefits Review Board is vacated, and the matter remanded for further proceedings consistent with this decision. No costs will be awarded to any party.

1 . The statute refers to the Secretary of Labor as responsible for administering the Act, 33 U.S.C. § 939, and to Deputy Commissioners, id. § 940, as subordinate administrators. But the Secre-taiy has delegated authority to the Director of the Office of Workers Compensation Programs, and local administration is conducted by district directors.

2 . These requirements pertain to jurisdiction of federal courts and do not necessarily apply to Executive Branch agencies. See, e.g., North Carolina Utilities Comm’n v. FCC, 537 F.2d 787, 791 (4th Cir.), cert. denied, 429 U.S. 1027, 97 S.Ct. 651, 50 L.Ed.2d 631 (1976); Tennessee Gas Pipeline Co. v. Federal Power Comm’n, 606 F.2d 1373, 1380 (D.C.Cir.1979). However, we are presently concerned with our own jurisdiction and, given our conclusion, need not reach the interesting question of how to view the matter if the agency could act but we could not.

3 . Similarly, our own decision in Reich had nothing to do with the question now before us. The only liability "erased," perhaps an ill-chosen term, was liability to pay under the federal Act for losses already reimbursed under state law. Here, Neely is concerned with future losses based on the prior injury.

4 . See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 473-74, 102 L.Ed.2d 493 (1988); Massachusetts v. Blackstone Valley Elec. Co., 67 F.3d 981, 991 (1st Cir.1995); 1 K. Davis & R. Pierce, Jr., Administrative Law Treatise § 3.5, at 120 (3d ed.1994).