UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NORFOLK SHIPBUILDING & DRYDOCK

CORPORATION,

Petitioner,

No. 98-2577

v.

DAVID L. BRIGHT,

Respondent.

NORFOLK SHIPBUILDING & DRYDOCK

CORPORATION,

Petitioner,

No. 99-1037

v.

DAVID L. BRIGHT,

Respondent.

On Petitions for Review of Orders

of the Benefits Review Board.

(No. 97-909)

Submitted: March 23, 1999

Decided: May 14, 1999

Before NIEMEYER and LUTTIG, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

No. 98-2577 dismissed and No. 99-1037 affirmed by unpublished per

curiam opinion.

_________________________________________________________________
COUNSEL

Kelly Outten Stokes, VANDEVENTER BLACK, L.L.P., Norfolk,

Virginia; Gerard E. W. Voyer, TAYLOR & WALKER, P.C., Norfolk, Virginia, for Petitioner. David L. Bright, Respondent Pro Se.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Norfolk Shipbuilding and Drydock Company ("Norfolk Shipbuilding") petitions for review of two orders of the Department of Labor's

Benefits Review Board ("BRB") disposing of motions for reconsideration. Norfolk Shipbuilding claims that the BRB erred in determining

that it had failed to establish suitable alternative employment.

Respondent David Bright moved to dismiss No. 98-2577 as interlocutory. For the reasons that follow, we dismiss No. 98-2577 and affirm

No. 99-1037.

Bright filed a claim for workers' compensation benefits under the

Longshore and Harbor Workers' Compensation Act. The Administrative Law Judge ("ALJ") found that Bright had reached maximum

medical improvement regarding his thumb and hand injury on July

30, 1993, and awarded permanent partial disability from that date

based on a 33% loss of use of Bright's left hand.

Bright appealed to the BRB and asserted that the ALJ erred in finding that Bright reached maximum medical improvement as of July 30,

1993, instead of April 29, 1994;* that an award of permanent partial

_________________________________________________________________

*According to the ALJ, on the date of maximum medical improvement, Bright's benefits changed from total temporary to partial permanent.

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disability should be based merely on medical impairment without a

consideration of economic factors or wage loss; and that Norfolk

Shipbuilding was entitled to credit for temporary disability payments

under the Virginia Workers' Compensation Act. The BRB affirmed

the decision of the ALJ.

Bright then filed a motion for reconsideration essentially reiterating

his claims on appeal. However, the BRB interpreted Bright's motion

to raise a novel issue that had not been decided by the ALJ or the

BRB on initial review: whether Bright was entitled to total permanent

disability from July 30, 1993 (the date of maximum medical improvement) until the date Bright was again employed. The BRB granted

Bright's motion for reconsideration, based on a finding that Norfolk

Shipbuilding failed to show suitable alternative employment during

the relevant time period, and awarded Bright total permanent disability for this period. Norfolk Shipbuilding appealed (No. 98-2577).

Norfolk Shipbuilding then filed a motion for reconsideration by the

BRB, stating that (1) Bright worked for Norfolk Shipbuilding until

April 29, 1994, in a light duty position; (2) the ALJ implicitly found

that Norfolk Shipbuilding proved suitable alternative employment;

and (3) Bright might have been laid off for reasons unrelated to his

work injury. The BRB granted the motion for reconsideration and

modified its previous order to show that Bright was entitled to total

permanent disability benefits only from April 29, 1994, until September 30, 1995, the day he began working again. Norfolk Shipbuilding

appealed (No. 99-1037), arguing that (1) the BRB erred in considering total permanent disability when it was not raised before the ALJ

and (2) the uncontradicted evidence established suitable alternative

employment.

The filing of a timely motion for reconsideration renders the underlying BRB decision nonfinal and thus precludes judicial review of

that action. See Bridger Coal Co. v. Director, OWCP, 927 F.2d 1150,

1152 (10th Cir. 1991). Therefore, due to the filing of the second

motion for reconsideration, Bright has moved to dismiss as interlocutory Norfolk Shipbuilding's appeal from the BRB's first decision on

reconsideration. Norfolk Shipbuilding asserts that the Bridger Coal

rule applies only to the filing of the first motion for reconsideration.

According to Norfolk Shipbuilding, the BRB's ruling on a motion for

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reconsideration is final and the subsequent filing of a second or successive motion will not stay the appeal period or preclude judicial

review of the underlying BRB decision. In support of this position,

Norfolk Shipbuilding cites Midland Coal Co. v. Director, OWCP, 149

F.3d 558 (7th Cir. 1998), and Peabody Coal Co. v. Abner, 118 F.3d

1106 (6th Cir. 1997).

However, Midland Coal and Abner are distinguishable from the

present case. In Midland Coal, the Employer filed three requests to

reconsider the BRB's original decision, which were each denied, and

then attempted to appeal to the circuit court. The Seventh Circuit dismissed the appeal as untimely, finding that the second and third

motions did not toll the appeal period. See 149 F.3d at 563-64 (citing

20 C.F.R. §§ 802.403, 802.407). The court concluded that a decision

to deny reconsideration is dispositive so long as the agency makes no

alteration in the underlying order. See id. (quoting Schneider Nat'l,

Inc. v. Interstate Comm. Comm'n, 948 F.2d 338, 344 (7th Cir. 1991)).

In Abner, the Employer filed two motions for reconsideration, both

of which were denied by the BRB. The Employer then petitioned the

Sixth Circuit. The petition would have been timely if measured from

the BRB's denial of the second motion for reconsideration, but not the

first. The court dismissed the petition, finding it untimely. The court

reasoned that "[t]he time limit would be a joke if parties could continually file new motions, preventing the judgment from becoming

final." 118 F.3d at 1108. Therefore, the court held that "[a] successive

motion to amend, where the first was not granted, does not toll the

appeal period." Id. However, the court also noted that "[a] successive

motion directed to the same judgment is ineffectual, but when there

is a new judgment--an alteration independently sufficient to restart

the time for appeal--there is also a new period in which to file a

motion." Id. (quoting Charles v. Daley, 799 F.2d 343 (7th Cir. 1986)).

In this case, neither party filed a second or successive motion for

reconsideration. Bright's initial motion was granted, altering the

BRB's original decision. Norfolk Shipbuilding then filed its own

motion to reconsider the altered decision. That decision was also

granted, at least in part. Because this is not a case of a party filing

successive, unsuccessful motions in an attempt to prevent the judgment from becoming final and because Norfolk Shipbuilding filed

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only one motion for reconsideration from an altered decision that had

not yet been challenged, we find that Midland Coal and Abner support the conclusion that the appeal from the decision on the first

reconsideration motion is interlocutory. Accordingly, we hold that the

BRB's first decision on reconsideration was a nonfinal order rendered

interlocutory by Norfolk Shipbuilding's timely motion for reconsideration.

Regarding the appeal from the denial of the second motion for

reconsideration, Norfolk Shipbuilding contends that the BRB erred by

considering the issue of total permanent disability when it was not

raised before the ALJ. However, Norfolk Shipbuilding did not raise

this waiver claim before the BRB, and as such, we decline to address

it. Moreover, we note that Norfolk Shipbuilding was not prejudiced

by the BRB's consideration of this issue. In its motion for reconsideration, Norfolk Shipbuilding could have submitted any evidence it possessed regarding suitable alternative employment. In fact, Norfolk

Shipbuilding states in its informal brief that it"had a vocational rehabilitation specialist prepare a list of jobs, suitable alternative employment, which Bright was capable of performing." However, Norfolk

Shipbuilding offers no reason for its failure to submit this list with its

motion for reconsideration.

After careful review of the record on appeal and Norfolk Shipbuilding's remaining contentions, we affirm the merits of Norfolk

Shipbuilding's appeal on the reasoning of the Benefits Review Board.

See Bright v. Norfolk Shipbuilding, BRB 97-909 (Dec. 16, 1998).

Accordingly, we affirm the BRB's decision in No. 99-1037 and dismiss the appeal in No. 98-2577. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

No. 98-2577 - DISMISSED

No. 99-1037 - AFFIRMED

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