United States Court of Appeals

Fifth Circuit

FILED

September 28, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60439

CAROL Y. GRANT

Petitioner

v.

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, U.S.

DEPARTMENT OF LABOR; P&O PORTS TEXAS, INC.

Respondents

On Petition for Review of an Order 

of the Benefits Review Board

Before DAVIS, BARKSDALE, and PRADO, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

An Administrative Law Judge (ALJ) dismissed Carol Grant’s

compensation claim under the Longshore and Harbor Workers’ Compensation

Act (LHWCA), 33 U.S.C. § 921(c). The Benefits Review Board (BRB) dismissed

her appeal from that order as untimely. Grant contends her appeal was not

untimely (indeed, was premature) because the ALJ’s order from which she had

to appeal was never filed, contrary to 33 U.S.C. § 921(a). Respondent Director,

Office of Worker’s Compensation Programs (OWCP), agrees with her position.

VACATED and REMANDED.

I.
No. 06-60439

2

Grant was allegedly injured while working as a longshoreman for P&O

Ports Texas, Inc., in Corpus Christi, Texas. Her compensation claim was

referred to an ALJ for a hearing, pursuant to 33 U.S.C. § 919(d). The ALJ

dismissed Grant’s claim on 13 December 2005. The dismissal order was sent by

the Office of Administrative Law Judges to the parties via regular mail and to

the District Director of the OWCP by express mail. The District Director’s office

received the ALJ’s order on 14 December 2005. Upon receipt of the order,

however, the District Director took no further action: he did not formally date

and file the order, nor did he serve it on the parties, all contrary to 20 C.F.R. §

702.349.

On 18 January 2006, Grant mailed a notice of appeal to the BRB and

mailed a letter to the District Director, inquiring whether his office had served

the ALJ’s order. By letter dated 25 January 2006, the District Director

responded: “The dismissal of your case was served directly by the Office of

Administrative Law Judges and was therefore not ‘filed’ in my office” (emphasis

added).

P&O Ports moved to dismiss Grant’s appeal for lack of jurisdiction,

maintaining her notice of appeal was untimely. The BRB agreed and summarily

dismissed the appeal, based on section 21(a) of the LHWCA, 33 U.S.C. § 921(a)

and the BRB’s Rules of Practice and Procedure, which provide that a notice of

appeal must be filed with the BRB within 30 days from the date upon which the

decision or order is filed in the Office of the District Director. The BRB stated,

without any explanation, that the ALJ’s order was “filed in the Office of the

District Director” on 14 December 2005 (the day the order was simply received

by the District Director). Based on this “filing” date, the BRB ruled Grant’s

notice of appeal had to have been filed no later than 13 January 2006 and was,

therefore, filed five days too late.
No. 06-60439

3

II.

Grant adopts the OWCP’s brief, which contests the BRB’s ruling. At issue

is whether the BRB properly interpreted what constitutes the “filing” of a

compensation order in the District Director’s Office under the LHWCA and its

implementing regulations. “This Court conducts a de novo review of the BRB’s

rulings of law, owing them no deference because the BRB is not a policymaking

agency.” Avondale Indus., Inc. v. Alario, 355 F.3d 848, 851 (5th Cir. 2003)

(quoting Pool Co. v. Cooper, 274 F.3d 173, 177 (5th Cir. 2001)) (internal

quotation marks omitted). 

On the other hand, Skidmore-level deference may be afforded

interpretations ofthe LHWCA by the OWCP in litigation. See Pool Co., 274 F.3d

at 177 n.3 (citing United States v. Mead Corp., 533 U.S. 218, 238 n.19 (2001)).

Under Skidmore, the amount of deference given to the OWCP’s interpretation

“will depend upon the thoroughness evident in its consideration, the validity of

its reasoning, its consistency with earlier and later pronouncements, and all

those factors which give it power to persuade, if lacking power to control”. Mead

Corp., 533 U.S. 218, 228 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944)) (internal quotation marks omitted). Such deference, however, is not

afforded litigation positions taken by the OWCP that are “wholly unsupported

by regulations, rulings, or administrative practice”. Total Marine Servs., Inc. v.

Dir., OWCP, 87 F.3d 774, 777 n.2 (5th Cir. 1996) (quoting Smiley v. Citibank

(S.D.), N.A., 517 U.S. 735, 741 (1996)) (internal quotations marks omitted). 

The OWCP’s interpretation of “filing” in connection with this litigation is

in no sense a “‘post hoc rationalizatio[n]’ advanced by an agency seeking to

defend past agency action against attack”. Auer v. Robbins, 519 U.S. 452, 462

(1997) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988)).

Rather, its interpretation is, as discussed infra, entirely consistent with the text

of the controlling regulation and the OWCP’s prior administrative practice such
No. 06-60439

4

that “[t]here is simply no reason to suspect that its interpretation does not

reflect the agency’s fair and considered judgment on the matter in question”. Id.

Accordingly, we afford Skidmore deference to the OWCP’s interpretation of

what, under the LHWCA, constitutes the filing of a compensation order by the

District Director.

Section 21(a) of the LHWCA provides that a compensation order becomes

effective “when filed . . . as provided in section [19]” of the Act. 33 U.S.C. §

921(a). Once the order is filed (and therefore effective), an aggrieved party must

file a notice of appeal within 30 days, or the compensation order becomes final.

Id.; see also 20 C.F.R. § 802.205. Because the appeal deadline is jurisdictional,

an “untimely appeal must be summarily dismissed, and no equitable relief is

permitted”. Aetna Cas. & Surety Co. v. Dir., OWCP, 97 F.3d 815, 818 (5th Cir.

1996). Therefore, in determining whether Grant’s appeal was properly

dismissed as untimely by the BRB, we must determine whether the ALJ’s

dismissal order was “filed” in accordance with section 19 of the LHWCA.

Section 19 requires that all compensation orders “be filed in the office of

the deputy commissioner, and a copy thereof . . . be sent by registered mail or by

certified mail to the claimant and to the employer”. 33 U.S.C. § 919(e). Section

19 does not define what constitutes “filing” the compensation order, nor does its

implementing regulation. That regulation, however, provides additional insight

for what is required for filing under section 19. The regulation states:

Upon receipt [of the compensation order], [1] the district director .

. . shall formally date and file the . . . compensation order (original)

in his office. Such filing shall be accomplished by the close of

business on the next succeeding working day, and [2] the district

director shall, on the same day as the filing was accomplished, send

by certified mail a copy of the compensation order to the parties and

to representatives of the parties, if any.

20 C.F.R. §702.349 (emphasis added). 

A.
No. 06-60439

5

P&O Ports claims the BRB correctly concluded that mere receipt of the

compensation order by the District Director on 14 December constituted “filing”

under section 19 of the LHWCA. In the alternative, P&O Ports maintains:

because, as quoted above, the implementing regulation, 20 C.F.R. § 702.349,

requires the District Director to “file” the order no later than “the close of

business on the next succeeding working day” after it is received, the

compensation order was filed on 15 December and the appeal was still untimely.

1.

The Supreme Court has provided the customary and generally understood

meaning of “filing”, although in a somewhat circular fashion: “A paper is filed

when it is delivered to the proper official and by him received and filed”. United

States v. Lombardo, 241 U.S. 73, 76 (1916) (citation omitted) (emphasis added).

This definition contemplates an affirmative act of filing, that may occur only

after the paper has been received. Moreover, in the context of compensation

orders, the above-quoted regulation promulgated under section 19 of the

LHWCA states: the District Director must “[u]pon receipt . . . formally date and

file the . . . compensation order” and “[s]uch filing shall be accomplished by the

close of business on the next succeeding working day”. 20 C.F.R. § 702.349

(emphasis added). The regulation’s plain meaning reveals: (1) filing a

compensation order requires a “formal act” by the District Director; and (2) the

District Director can only file the order after it is received. Stated differently,

mere receipt of the order is insufficient to trigger the 30-day appeals period.

In the normal course of events, the District Director’s Office fulfills the

formal filing requirement by attaching a Certificate of Filing and Service to the

compensation order. See, e.g., Hamilton v. Ingalls Shipbuilding, Inc., 30 BRBS

84 (1996) (describing process). The certificate is signed and dated and certifies

the obviously needed definite date of filing from which the appeals period will

run. This process is analogous to the appeals process for this court, where the
No. 06-60439

6

entry of a district court judgment on that court’s docket begins, with a needed

date certain, the time period within which a party may appeal a judgment. See

FED. R. APP. P. 4(a)(1) (time for filing appeal); see also FED. R. CIV. P. 79(a)

(describing entries in civil docket).

The District Director did not take any formal action after he received the

compensation order from the ALJ. For example, there is no evidence in the

record that a Certificate of Filing and Service was completed; in fact, there is

evidence to the contrary. In his above-referenced 25 January 2006 letter to

Grant,the District Director stated that, because the ALJ had already served the

parties with the order of dismissal, it was “not ‘filed’ in [the District Director’s]

office”. Therefore, as advanced by the OWCP, to whose interpretation we accord

considerable deference in this instance, it is evident, based on the District

Director’s actions and admission, that the ALJ’s order of dismissal was never

filed as contemplated by section 19 of the LHWCA.

2.

As noted, P&O Ports asserts in the alternative: because 20 C.F.R. §

702.349 requires the District Director to file the compensation order by the close

of business on the next business day after he receives it, then the order must be

considered to have been “filed” no later than 15 December. Although the District

Director is required to file the order within one business day of receipt, the fact

remains that, as discussed above, he did not do so. Because filing requires an

affirmative, formal act (which was admittedly not done for Grant’s order of

dismissal), this contention also fails.

B.

As also discussed supra, section 19's implementing regulation requires the

District Director not only to formally date and file the compensation order but

also to mail copies of the order to the parties. 20 C.F.R. § 702.349. The OWCP

urges: if we hold the ALJ’s dismissal order was not properly filed, we need not
No. 06-60439

7

reach whether proper service (i.e., mailing) of the order by the District Director

upon the claimant is necessary to effectuate “filing”. See Sea-Land Serv., Inc. v.

Barry, 41 F.3d 903, 908-09 (3d Cir. 1994) (holding that District Director’s filing

and mailing are “two distinct procedures”); Jeffboat, Inc. v. Mann, 875 F.2d 660,

663 (7th Cir. 1989) (holding proper mailing not part of filing). But see Nealon v.

Cal. Stevedore & Ballast Co., 996 F.2d 966, 970-71 (9th Cir. 1993) (holding filing,

as provided in section 19, includes service on the parties). As discussed supra,

filing requires, at a minimum, formal action by the District Director. Because

such action was not completed in the proceeding at hand, it is immaterial for

purposes of this appeal whether “filing” under section 19 of the LHWCA also

requires service of the order upon the parties by the District Director.

III.

For the foregoing reasons, because the ALJ’s order of dismissal was not

“filed” in the Office of the District Director, the 30-day time period for filing a

notice of appeal with the BRB has not yet begun. Therefore, Grant’s notice of

appeal was premature. Accordingly, the BRB’s order dismissing her appeal is

VACATED, and this matter is REMANDED to the BRB with instructions to

require the District Director to file the ALJ’s order of dismissal consistent with

this opinion.

VACATED and REMANDED.