ST. JOHN STEVEDORING COMPANY, ET AL., PETITIONERS V. JOHNETTA
WILFRED

   ALENE C. JONES, PETITIONER V. ST. JOHN STEVEDORING COMPANY, ET AL.

   No. 87-273 and 87-381

   In the Supreme Court of the United States

   October Term, 1987

   On Petitions for a Writ of Certiorari to the United States Court of
Appeals for the Fifth Circuit

   Brief for the Federal Respondents in Opposition

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (St. John Pet. App. A1-A7) /1/
is reported at 818 F.2d 397.  The opinion of the Benefits Review Board
(St. John Pet. App. B1-B9) is reported at 18 Ben. Rev. Bd. Serv. (MB)
68.  The opinion of the administrative law judge (St. John Pet. App.
C1-C10) is reported at 17 Ben. Rev. Bd. Serv. (MB) 109.

                             JURISDICTION

   The judgment of the court of appeals was entered on June 3, 1987.
Petitions for rehearing were denied on July 1, 1987 (St. John Pet.
App. A8-A9).  The petition for a writ of certiorari in No. 87-273 (St.
John Pet.) was filed on August 15, 1987.  The petition for a writ of
certiorari in No. 87-381 (Jones Pet.) was filed on September 1, 1987.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether a surviving dependent parent's death benefits under the
Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq.,
may be subject to an offset as the result of a third-party settlement
signed by the decedent and the surviving parent.

   2. Whether the court of appeals properly concluded that a surviving
minor child is entitled to death benefits under the Longshore and
Harbor Workers' Compensation Act, as an "acknowledged illegitimate
child dependent upon the deceased," where ample uncontroverted
evidence indicated both acknowledgement of paternity and dependency.

   3. Whether a surviving minor child's claim to receive death
benefits under the Longshore and Harbor Workers' Compensation Act may
be extinguished or reduced by a settlement of a third-party tort suit
that was entered into by the employee on behalf of himself and his
"heirs (and) next of kin," but in which the child was not separately
represented.

                               STATEMENT

   1. John Henry Jones was injured on May 27, 1979, while working for
petitioner St. John Stevedoring Co. (St. John) (St. John Pet. App. A1,
B2, C3).  As a result of that injury, St. John paid compensation
benefits to Jones under the Longshore and Harbor Workers' Compensation
Act (LHWCA or the Act), 33 U.S.C. 901 et seq.

   The issues in this case arise from an agreement entered into on
December 23, 1981, settling a tort suit Jones had brought against
third parties in connection with his injury (St. John Pet. App.
A1-A2).  /2/ The settlement agreement /3/ was executed by Jones, his
mother (petitioner Alene Jones), his employer (St. John), the
employer's insurer (Insurance Company of North America (INA)) and
several tort defendants (id. at A2), and provided that the tort
defendants would immediately pay to Jones $1.78 million, and further
provided for prospective annual payments of $280,000 for the rest of
Jones's life, commencing in December 1982 (ibid.).  /4/ The settlement
agreement contemplated that if Jones died before December 1986, then
the annual payments would continue to be paid through December 1986 to
his mother or, in the event of her death, to Jones's estate (ibid.).
In addition to resolving all claims against the third-party
tortfeasors, the settlement provided that St. John and its insurer
would be fully reimbursed for the benefits they paid under the LHWCA
and would receive "'a credit * * * for accrual of all compensation
benefits and medical expenses in the future'" (ibid.).  The settlement
agreement specified the parties' intent to bind Jones's "'heirs,
executors, administrators, assigns, next of kin, or other legal
representatives'" (id. at A6).

   Jones died in June 1982, before the date upon which the first
annual payment prescribed in the agreement was due (St. John Pet. App.
A2, B2, C3).  Under the terms of the settlement, therefore, Jones's
mother received more than $1.4 million ($5,000 plus five annual
payments of $280,000 each) (id. at A6).  Independent of the
settlement, Jones's mother filed a separate claim under Section 9 of
the LHWCA, 33 U.S.C. 909, for death benefits from the employer, as did
Sheryl Wilfred, on behalf of Jones's alleged minor daughter Johnetta
Wilfred (Pet. App. A2, C1).  Those latter claims are the subject of
this action.

   2. The administrative law judge (ALJ) awarded LHWCA death benefits
to Jones's mother on the ground that she had been economically
dependent on Jones (St. John Pet. App. C4), but denied benefits to
Jones's putative daughter (id. at C10).  The ALJ explained that state
law is dispositive on the question whether a claimant is decedent's
"child" for purposes of statutory eligibility /5/ "because the LHWCA
does not define this operative term" (id. at C5).  The ALJ concluded
that, under the standards established by the law of Louisiana (the
state in which the child was domiciled (id. at C5-C6)), "it ha(d) not
been definitively established that the decendent was the natural
father" (id. at C9).

   3. The Benefits Review Board (BRB or the Board) reversed the ALJ's
denial of benefits to the child (St. John Pet. App. B9).  /6/ The
Board ruled that federal, not state, law controlled whether Jones had
acknowledged paternity for purposes of the Act, and that, under
federal law, "the evidence overwhelmingly supports a finding of
acknowledgment" (id. at B4).  The Board also concluded that
"uncontradicted testimony" established the child's dependency as a
matter of law (id. at B6) and that she was therefore entitled to
receive statutory death benefits.

   The Board affirmed the ALJ's award of benefits to Jones's mother.
It rejected (St. John Pet. App. B7) the argument that Section 33(g) of
the Act, 33 U.S.C. 933(g), requiring third-party settlement agreements
to be approved in writing by the employer and timely filed with the
Department of Labor, bars statutory compensation here.  That
provision, it said, is applicable only if the amount of the
third-party settlement is less than the compensation awarded under the
Act, and in this case the settlement was for considerably more than
the amount of statutory death benefits (St. John Pet. App. B7).
Further, the Board stated (ibid.) that, in any event, the procedural
formalities of Section 33(g) did not apply to Jones's mother because,
as Jones was still living at the time of the settlement, his mother
was not then a "person entitled to compensation" in the form of death
benefits within the meaning of Section 33(g)(1), 33 U.S.C. (Supp. III)
933(g)(1).

   Relying upon its conclusion that Jones's mother was not a "person
entitled to compensation" within the meaning of Section 33(g), the
Board also reasoned that St. John was not entitled under Section
33(f), 33 U.S.C. 933(f), to reduce its LHWCA benefits payments to
Jones's mother to reflect the third-party settlement (St. John Pet.
App. B8).  In the Board's view, "the settlement was entered into prior
to death and presumably compensated the employee and mother for loss
due to the employee's disability, rather than loss due to his death"
(ibid.).

   4. The court of appeals affirmed the Board's award of benefits to
Jones's illegitimate child and reversed the Board's denial of St.
John's request that money paid pursuant to the settlement be credited
against benefits owing to Jones's mother (Pet. App. A7).

   The court of appeals reasoned that Johnetta Wilfred was an
"acknowledged illegitimate child dependent upon the deceased" (33
U.S.C. 902(14)), and thus was entitled to LHWCA death benefits.  The
court relied (St. John Pet. App. A4) on Texas Employers' Insurance
Ass'n v. Shea, 410 F.2d 56 (5th Cir. 1969) and Weyerhaeuser Timber Co.
v. Marshall, 102 F.2d 78 (9th cir. 1939)), to support the proposition
that even if state law precludes a designation of paternity, LHWCA
benefits may still be awarded if a paternal link is proved.  On the
facts of this case, the court of appeals concurred in the Board's
conclusion that "'the evidence overwhelmingly supports a finding of
acknowledgment" (St. John Pet. App. A4).  The court also agreed with
the Board that the child, who was in utero at the time of Jones's
injury, was dependent on Jones (id. at A4-A5).

   With respect to Jones's mother, the court stated that it "do(es)
not disagree necessarily with the reasoning of the BRB on th(e)
statutory interpretation" that Jones's mother was statutorily barred
from death benefits or required by statute to set off settlement
monies against them, because at the time the settlement agreement was
formalized she was not a "person entitled to compensation" under
either Section 33(g) of Section 33(f) of the LHWCA.  But the court
also found that by participating in the settlement Jones's mother had
"obligated herself to give the employer and compensation carrier
credit for all sums she received as a result of the tort settlement
agreement" (St. John Pet. App. A6).  Since her recovery under the
settlement would far exceed any death benefits under the LHWCA, the
court therefore decided that St. John and its insurer "are entitled to
a credit for the full amount of compensation benefits owed to the
decedent's mother" (ibid.).

   By contrast, the court rejected St. John's argument that a similar
set-off should be applied to the minor child's LHWCA benefits.
Although the settlement agreement purported to bind Jones's "'heirs *
* * (and) next of kin'" (St. John Pet. App. A6), at the time of the
settlement Johnetta Wilfred was not represented by a statutory
guardian responsible for protecting her rights (Section 11, 33 U.S.C.
911).  The court therefore concluded that Jones lacked authority to
settle or waive in advance any right to death benefits that might
accrue to his child (St. John Pet. App. A7).

                               ARGUMENT

   The decision of the court of appeals is correct.  It does not
conflict with any decision of this Court or of any other court of
appeals.  Review by this Court is therefore not warranted.

   1. Petitioners in No. 87-273 (St. John and INA) content (Pet. 7-10)
that the court of appeals and the Board improperly substituted their
views for those of the ALJ on the question of filiation and
impermissibly made findings as to dependency even though the ALJ had
not reached that issue.  Petitioners, however, misperceive the nature
of the review function exercised by the Board and affirmed by the
court of appeals.

   Section 9(c) of the LHWCA, 33 U.S.C. 909(c), entitles a surviving
"child" to death benefits in the event of an "injury (that) causes
death," /7/ and Section 2(14), 33 U.S.C. 902(14), defines "child" as
including an "acknowledged illegitimate child dependent upon the
deceased." The ALJ held (St. John Pet. App. C5-C6) that state law
governs the question whether one is a decedent's "child" within the
meaning of the Act "because the LHWCA does not define this operative
term."

   The Board correctly applied federal rather than state law to this
issue and the court of appeals correctly upheld that decision.  It has
long been settled that in determining whether an illegitimate child is
entitled to benefits under the Act, the statutory definition is
"complete in itself" and does not require resort to state law.
Weyerhaeuser Timber Co. v. Marshall, 102 F.2d 78, 81 (9th Cir. 1939)
("Congress having provided all definitions necessary to the
determination of whether claimant is a 'child' and its authority being
paramount and exclusive as to the subjects on which it has legislated,
it is not allowable to go beyond the Act provisions.").  /8/ It is
likewise settled under the LHWCA that acknowledgement -- the statutory
standard for paternity /9/ -- "does not require a notary's seal or any
other ritualistic proclamation." Texas Employer's Insurance Ass'n v.
Shea, 410 F.2d 56, 61 (5th Cir. 1969).

   2. Petitioner in No. 87-381, Jones's mother, contends (Pet. 9) that
the court of appeals incorrectly required her to set off against her
statutory death benefits the amount received for the third-party
tortfeasors -- thus entirely cancelling out her claim to statutory
benefits.  /10/ She contends that since she was not entitled to any
benefits under the LHWCA at the time the third-party settlement was
executed, the settlement could not have extinguished her statutory
right to death benefits (id. at 10).  In the alternative, petitioner
contends that her participation in the settlement was not fatal to her
right to receive death benefits under the LHWCA as a matter of
contract interpretation (id. at 11-14).

   The Board held, and the court of appeals did "not disagree
necessarily" that Mrs. Jones's entitlement to benefits was not barred
by her failure to comply with the procedural requirements of Section
33(g), nor were her benefits subject to an offset under Section 33(f).
 Section 33(g) provides that in order for a "person entitled to
compensation" to compromise a claim against a third-party for less
than the total compensation payable under the statute, that person
must first secure the employer's permission to settle.  That Section
is not applicable here because the settlement amount exceeded the
death benefits (see note 10, supra).  Section 33(f), /11/ which
generally provides for offset of third-party tort recoveries against
compensation benefits, likewise does not apply because, as the Board
stated, Mrs. Jones was not a "person entitled to compensation" within
the meaning of that section at the time she entered into the
settlement (St. John Pet. App. B7-B8).  The court of appeals, without
questioning any of this reasoning, "perceiv(ed) a contractual basis
for requiring a credit," arising from an explicit term of the
settlement agreement which Jones's mother signed (id. at A6).

   The issue does not warrant further review.  The decision of the
court of appeals rests on the particular language of the settlement
agreement in this case, a factbound determination lacking in general
application or significance other than to the parties.  In any event,
the court of appeals reached the correct result.  /12/

   3. Petitioners in No. 87-273, St. John and INA, further contend
(Pet. 5-7) that the third-party settlement entitled them to an offset
against the future death benefits not only of Jones's mother -- a
signatory to the agreement -- but against the future death benefits of
the minor daughter as well.  In support of this contention,
petitioners recite (id. at 6) that Jones settled his third-party
claim, not only for himself, but also for his "'next of kin'" and
thereby cut off the child's claims against the third-party
tortfeasors.

   The court of appeals stated that Jones "did not have the power to
settle or waive in advance any death benefits that might accrue to his
minor daughter" (Pet. App. A7).  As the court noted (ibid.), the LHWCA
favors the protection of the rights of minors, specifically through
the appointment, as appropriate, of a guardian "by a court of
competent jurisdiction." 33 U.S.C. 911.  In the present case, there
was no court-appointed legal guardian to represent the interests of
the child in the settlement.  Unlike Jones's mother, therefore, his
daughter did not participate in execution of the settlement, and she
received nothing under the settlement either before or after her
father's death.  On the other hand, petitioners St. John and INA had
intervened in the third-party suit and were parties to the settlement.
 See Jones Pet. App. 24, 32-36.  Petitioners' interests were fully
represented and they have no cause to complain that the settlement
indirectly prejudiced their rights as against the unrepresented minor.

                              CONCLUSION

   The petitions for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   GEORGE R. SALEM

      Solicitor of Labor

   ALLEN H. FELDMAN

      Associate Solicitor

   STEVEN J. MANDEL

      Counsel for Appellate Litigation

   NATHANIEL I. SPILLER

      Attorney

   NOVEMBER 1987

   /1/ "St. John Pet. App." refers to the appendix to the petition for
a writ of certiorari in No. 87-273.

   /2/ By the date of the settlement Jones's LHWCA compensation
totaled $291,839.71 (St. John Pet. App. A1).

   /3/ The settlement agreement is reproduced at pages 24-33 of the
appendix to the petition for a writ of certiorari in No. 87-381.

   /4/ In addition, Jones's mother received an immediate cash payment
of $5,000 (Pet. App. A2).

   /5/ Section 2(14) of the LHWCA, 33 U.S.C. 902(14), says that a
child entitled to death benefits includes an "acknowledged
illegitimate child dependent upon the deceased."

   /6/ The Director, Office of Workers' compensation Programs, to whom
the Secretary of Labor has delegated authority to administer the Act
(20 C.F.R. 701.202, 802.410(b)), is an automatic party in LHWCA cases.
 20 C.F.R. 801.2(10);  Ingalls Shipbuilding Division v. White, 681
F.2d 275, 279 (5th Cir. 1982);  Shahady v. Atlas Tile & Marble Co.,
673 F.2d 479, 482 (D.C. Cir. 1982).

   /7/ At the time of the employee's death in 1982, the LHWCA also
provided death benefits "if the employee who sustains permanent total
disability due to the injury thereafter dies from causes other than
the injury." Longshoremen's and Harbor Workers' Compensation Act
Amendments of 1972, Pub. L. No. 92-576, Section 5(d), 86 Stat.
1253-1254.  That broader death benefits provision was in effect
between 1972 and 1984.  See, e.g., Travelers Insurance Co. v.
Marshall, 634 F.2d 843 (5th Cir. 1981).

   /8/ Having found that the ALJ's findings of filiation rested on an
erroneous view of the law, the Board correctly set them aside on that
basis.  Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982).  See also
Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485
501 (1984);  Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456
U.S. 844, 855 n.15 (1982);  United States v. Singer Mfg. Co., 374 U.S.
174, 194 n.9 (1963).  Moreover, as the court of appeals noted (St.
John Pet. App. A4), the Board "readily concluded that 'the evidence
overwhelmingly supports a finding of acknowledgment.'" Remand was
unnecessary on the question of filiation because "the record permits
only one resolution of the factual issue." Pullman-Standard, 456 U.S.
at 292 (citing Kelley v. Southern Pacific Co., 419 U.S. 318, 331-332
(1974)).  See Anderson v. City of Bessemer City, 470 U.S. 564, 573
(1985).

   For the same reason, there was no need for the Board to remand to
the ALJ on the question of dependency.  Johnetta Wilfred was conceived
five days before her father was injured, and "(d)uring the time Sheryl
Wilfred carried Johnetta to term, she received regular financial aid
from John Henry Jones" (St. John Pet. App. A5).  The court of appeals,
concurring in the Board's finding of dependency, emphasized (ibid.
(emphasis in original)):

      The uncontroverted testimony reflects that from the time
      Johnetta was in utero, and continuing to the date of his death,
      John Henry Jones sent Ms. Wilfred hundreds of dollars for their
      support, notably in regular payments.  In addition, he bought
      the child clothing and gifts.

   As the court held (ibid.), these facts fully established dependency
under the LHWCA.  See Texas Employers' Insurance Ass'n v. Shea, supra;
 United States v. Fidelity & Guaranty Co. v. Britton, 188 F.2d 674
(D.C. Cir. 1951);  Standard Dredging Corp. v. Henderson, 150 F.2d 78
(5th cir. 1945);  Texas Employers' Insurance Ass'n v. Sheppeard, 62
F.2d 122 (5th Cir. 1932).

   /9/ Petitioners suggest (St. John Pet. 7-8), based on Weber v.
Aetna Casualty & Surety Co., 406 U.S. 164 (1972), that the
acknowledgment requirement is unconstitutional.  Even if this argument
were meritorious, it would not help their case;  eliminating
acknowledgment as a factor would not strengthen the employer's case
because it would become easier for a child to establish entitlement to
benefits.  In any event, Weber held that a state worker's compensation
statute violates the Equal Protection Clause of the Fourteenth
Amendment by discriminating against an unacknowledged illegitimate who
was otherwise dependent on the injured worker.  "(D)ependency, not the
legality of the father's nuptials, (has always been) the keynote of
coverage" under the LHWCA (Texas Employers' Insurance Ass'n v. Shea,
410 F.2d 56, 59 (5th Cir. 1969)).

   /10/ As previously noted (page 3, supra), petitioner received
$5,000 in her own right during Jones's lifetime, and $1.4 million
after his death under the contingency provided for in the settlement.
By contrast, petitioner's statutory death benefits could not amount to
more than a few thousand dollars a year.  See St. John Pet. App. B7 &
n.5.

   /11/ Section 33(f), 33 U.S.C. (Supp. III) 933(f), provides:

         If the person entitled to compensation institutes proceedings
      within the period prescribed in subsection (b) of this section
      the employer shall be required to pay as compensation under this
      chapter a sum equal to the excess of the amount which the
      Secretary determines is payable on account of such injury or
      death over the net amount recovered against such third person.
      Such net amount shall be equal to the actual amount recovered
      less the expenses reasonably incurred by such person in respect
      to such proceedings (including reasonable attorneys' fees).

The Longshore and Harbor Workers' Compensation Act Amendments of 1984,
Pub. L. No. 98-426, Sections 21(c) and (d), 98 Stat. 1652, amended
Section 33(f) and (g) in ways that are not material to the disposition
of the petitions in this case.

   /12/ Like the court of appeals, we do not quarrel with the Board's
conclusion that because Jones's mother was not then entitled to LHWCA
benefits Section 33(f) was inapplicable when the settlement was
executed.  A basic principle of workers' compensation law is that a
dependent's right to death benefits is independent from the employee's
compensation claim and does not arise until the employee's death.  2
A. Larson, The Law of Workmen's Compensation Section 64.11 (1987);
Puig v. Standard Dredging Corp., 599 F.2d 467, 469 (1st Cir. 1979)
("the cases under the Longshoremen's Act have consistently held that
the right to death benefits is separate and distinct from the right to
disability benefits and does not arise until death occurs");
International Mercantile Marine Co. v. Lowe, 93 F.2d 663, 665 (2d
Cir.) ("(w)hen death occurs, a new cause of action arises which
requires an adjudication on all questions such as accident, notice of
death, claim, causal relationship, and dependency"), cert. denied, 304
U.S. 565 (1938).

   The Board's view would not preclude the possibility that Section
33(f) became applicable when Mrs. Jones became "entitled to
compensation," viz., at the moment of her son's death.  Under this
reading, any amount that she recovered under the settlement agreement
before her son's death would not be subject to the statutory offset.
The amount she received after his death, however, could be offset
against future death benefits if the settlement agreement contemplated
that result.  Since such an offset, limited to payments received after
the settling parent became entitled to benefits, is permitted by the
language and purpose of Section 33(f), it is not inconsistent with the
policy against release of statutory entitlements expressed in Section
16 of the LHWCA, 33 U.S.C. 916.  See Great Lakes Dredge & Dock Co. v.
Brown, 47 F.2d 265 (N.D. Ill. 1930).  Moreover, recognition of an
offset under Section 33(f) fully effectuates the statutory policy
against double recovery.  Aetna Life Ins. Co. v. Moses, 287 U.S. 530,
542 (1933).  See also Bloomer v. Liberty Mutual Ins. Co., 445 U.S. 74,
79, 87 (1980);  Carter v. Director, OWCP, 751 F.2d 1398, 1400-1402
(D.C. Cir. 1985).