1 United States Court of Appeals,

Fifth Circuit.

No. 93-7077.

INGALLS SHIPBUILDING, INC., Plaintiff/Appellee,

v.

ASBESTOS HEALTH CLAIMANTS, Intervenors-Appellants,

and

N. Sandra Kitchin, District Director for the Sixth Compensation

District, Office of Workers' Compensation Programs, United States

Department of Labor, Defendant/Appellant.

March 30, 1994.

Appeals from the United States District Court for the Southern

District of Mississippi.

Before JOHNSON, GARWOOD, and JOLLY, Circuit Judges.

JOHNSON, Circuit Judge:

Ingalls Shipbuilding, Inc. ("Ingalls") filed the instant

action seeking to compel N. Sandra Kitchin, the District Director

for the Sixth Compensation District (the "Director"), to transfer

the asbestos claims of approximately 3,100 former Ingalls' shipyard

workers to the Office of the Administrative Law Judge ("OALJ") for

a hearing. The district court granted a writ of mandamus ordering

the Director to refer the cases. The Director appeals. We AFFIRM.

FACTS AND PROCEDURAL HISTORY

On October 10, 1990, Ingalls filed with the OALJ a Motion to

Consolidate and Motion for Summ ary Decision concerning certain

asbestos claims by former Ingalls' ship yard workers on file with1 N. Sandra Kitchin is the local District Director of the

Department of Labor's Office of Workers' Compensation Programs

("OWCP"). She is responsible for the general administration of

the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33

U.S.C. § 901 et seq., in the Sixth Compensation District.

2 Ingalls compiled this list of nearly 3,100 claims by

searching the records to find all claims against it wherein the

claimants had accepted one or more tort settlements with

third-party defendants without obtaining Ingalls' formal, written

approval. This action by Ingalls was prompted by our opinion in

Nicklos Drilling Co. v. Cowart, 907 F.2d 1552 (5th Cir.1990). In

Cowart, a panel of this Court held that, pursuant to 33 U.S.C. §

933(g)(1), failure of a claimant to obtain the approval of both

the employer and the employer's insurance carrier before entering

into a settlement would result, without exception, in forfeiture

of benefits under the LHWCA. Id. at 1553; See also, Petroleum

Helicopters, Inc. v. Barger, 910 F.2d 276, 278 (5th Cir.1990);

Petroleum Helicopters, Inc. v. Collier, 784 F.2d 644, 647 (5th

Cir.1986). On rehearing en banc of the Cowart case, this Court

affirmed the panel's opinion and further made it clear that this

approval-or-forfeiture provision applied even if the employer was

not paying benefits at the time of settlement. Nicklos Drilling

Co. v. Cowart, 927 F.2d 828, 830 (5th Cir.1991) ( en banc ).

Finally, the United States Supreme Court granted certiorari and

affirmed the en banc opinion of this Court. Estate of Cowart v.

Nicklos Drilling Co., --- U.S. ----, 112 S.Ct. 2589, 120 L.Ed.2d

379 (1992).

Ingalls argues that these decisions entitle it to

summary judgment defeating the listed claims and thus

Ingalls seeks to force these claims to adjudication on the

merits so as to dispose of them. Whether Ingalls is correct

and is therefore entitled to summary judgment is not before

this Court. That must be decided on the particular facts of

each case by the ALJ to whom such cases are assigned and we

express no opinion in that regard. Instead, the issue we

2 the Director. 1 Along with that filing, Ingalls formally requested

that the Director transfer the enumerated claims to the OALJ for an

administrative hearing. On November 2, 1990, and February 15,

1991, Ingalls made identical filings with respect to newly

identified claims bringing the total number of claims tha t it

requested the Director to transfer to the OALJ for a hearing to

approximately 3,100. 2face today is whether the district court was correct in

compelling the Director to order a hearing before the OALJ.

3 This group of cases was identified as the "Pate cases"

after the name of the plaintiffs' attorney who had filed them.

3 In December of 1990, at Ingalls' request, the Director did

refer a group of fifty-five of these claims 3 to the OALJ for a

hearing and disposition on Ingalls' substantive motions. However,

the Director then refused to transfer the balance of the cases.

Instead, over the next se veral years, the Director continued in

devising new and inventive rationales for deferring the referral of

these claims. Hence, on October 10, 1991, Ingalls filed the

instant mandamus action seeking to force the Director to transfer

the claims.

The district court ruled in favor of Ingalls finding that the

Director had a nondiscretionary duty under the LHWCA to order a

hearing before the OALJ when requested by an interested party.

Thus, on January 7, 1993, the district court issued an order

compelling the Director to transfer the asbestos claims to the

OALJ. The parties now appeal.

1. JURISDICTION

Initially, we must respond to the Director's contention that

the district court lacked jurisd iction to issue the instant

mandamus order. Subject matter jurisdiction is a question of law

over which we exercise plenary review. Ceres Gulf v. Cooper, 957

F.2d 1199, 1204 (5th Cir.1992).

In this case, jurisdiction i n the district court is

predicated on the Mandamus and Venue statute. That statute broadly4 The TRAC court identified two sources of authority to

support its conclusion that the court of appeals was empowered to

compel agency actions when review over that agency's action is

entrusted by statute in the court of appeals. First, the court

held that the All Writs Act, 28 U.S.C. § 1651, provided that

court with the authority to issue all writs necessary to protect

its prospective jurisdiction. TRAC, 750 F.2d at 76. Second, the

TRAC court found support in the language of the Administrative

Procedure Act (APA) which states that the reviewing court shall

"compel agency actions unlawfully withheld or unreasonably

delayed ..." 5 U.S.C. § 706(1). From this language, the D.C.

Circuit gleaned a congressional intent that the courts designated

by statute to review agency actions play an important role in

compelling agency action that has been improperly withheld or

delayed. Id. at 77.

4 provides that "[t ]he district courts shall have original

jurisdiction of any action in the nature of mandamus to compel an

officer or employee of the United States or any agency thereof to

per form a duty owed to the plaintiff." 28 U.S.C. § 1361. The

current action was brought in an attempt to compel the Director, an

officer of the United States, to perform a duty allegedly owed to

the plaintiff pursuant to the LHWCA, a federal statute. Thus, it

is clear that this action falls squarely within the ambit of this

statute.

Nevertheless, the Director contends that we should remove this

action from the reach of section 1361 on the strength of

Telecommunications Research & Ac tion Center v. FCC, 750 F.2d 70

(D.C.Cir.1984) (hereinafter TRAC). In T RAC, the D.C. Circuit held

that where an agency's governing statute ve sts jurisdiction for

review of agency action in the court of appeals, that court also

has the power to compel agency action in aid of that jurisdiction. 4

TRAC 750 F.2d at 77. Further, the T RAC court explained t hat the

existence in the appellate court of the power to compel agency5 Moreover, compensation orders issued by the deputy

commissioners were reviewable in the district court. In re

Compensation Under Longshore & Harbor Workers' Compensation Act,

889 F.2d 626, 629 (5th Cir.1989).

6 Under 33 U.S.C. § 919(d), the authority to act as hearing

officer was transferred from the deputy commissioners (the

Director herein) to the OALJ. Specifically, that section

provides that

"Any such hearing shall be conducted by a [sic]

administrative law judge.... All powers, duties, and

responsibilities vested by this chapter, on October 27,

1972, in the deputy commissioners with respect to such

hearings shall be vested in such administrative law

judges."

5 action defeated mandamus jurisdiction in th e district court

pursuant to 28 U.S.C. § 1361 because mandamus is not available when

review by other means is possible. Id. at 77-78.

Even if we chose to follow our sister circuit's holding in

TRAC, we do not believe that this would compel a holding in this

case that the district court lacked jurisdiction. This is because

in TRAC, the appellate court's jurisdiction to compel action by the

FCC was based on the statutorily conferred jurisdiction to review

final FCC actions. While the LHWCA does provide for review by the

court of appeals, tha t review is limited to final orders of the

Benefits Review Board (the "Board"). 33 U.S.C. § 921(c). However,

the action or inaction at issue in the instant case is attributable

to the Director and not the Board.

Prior to 1972, the Director had both the administrative duties

and the full adju dicatory authority under the LHWCA. 5 In 1972,

though, Congress amended the LHWCA and split the authority for

these two functions. 6 The Director retains authority for the33 U.S.C. § 919(d).

7 The Board is authorized "to hear and determine appeals

raising a substantial question of law or fact ... from decisions

with respect to claims of employees...." 33 U.S.C. § 921(b)(3).

It is a "quasi-judicial body presented with select cases and not

an agency involved in the overall administration of the statute."

O'Keefe, 545 F.2d at 343; See also Ryan-Walsh Stevedoring Co.,

Inc. v. Trainer, 601 F.2d 1306, 1314 n. 7 (5th Cir.1979).

6 overall administration of the sta tute. Substantive legal or

factual dispu tes arising under the LHWCA, however, are to be

decided by the OALJ with review to the Board. 7 D irector, Office of

Workers' Compensation Programs v. O'K eefe, 545 F.2d 337, 343 (3d

Cir.1976).

Review by th is Court is limited to final orders made by the

Board in the exercise of its adjudicatory authority. 33 U.S.C. §

921(c). The LHWCA does not, however, extend to this Court original

jurisdiction over the actions of the Director in the exercise of

her administrative authority.

As we have no statutorily conferred j urisdiction over the

actions of the Director, the All Writs Act would not provide this

Court with jurisdiction to compel action by the Director. 28

U.S.C. § 1651(a). Hence, review is not otherwise available in the

court of appeals and thus, even under the reasoning of the T RAC

court, there is no basis to defeat the mandamus jurisdiction of the

district court under 28 U.S.C. § 1361. S ee TRAC 750 F.2d at 77-78.

Therefore, we conclude that jurisdiction in the district court

to issue the instant order was proper pursuant to the Mandamus and

Venue statute, 28 U.S.C. § 1361.

2. MANDAMUS7

Mandamus is only appropriate when the claim is "clear and

certain and the duty of the officer is ministerial and so plainly

p rescribed as to be free from doubt." G iddings v. Chandler, 979

F.2d 1104, 1108 (5th Cir.1992); S ee also Nova Stylings, Inc. v.

Ladd, 695 F.2d 1179, 1180 (9th Cir.1983). Mandamus is thus not

generally availab le to review the discretionary acts of public

officials. G iddings, 979 F.2d at 1108. Though this is a difficult

burden for a plaintiff to meet, we believe that the plaintiff

herein has shown that it is entitled to relief.

The duty in this case stems from the text of the LHWCA. That

statute provides that "[t]he [Director] shall make or cause to be

made such investigation as [she] considers necessary in respect of

the claim, and upon application of any interested party shall order

a hearing thereon." 33 U.S.C. § 919(c) (emphasis added). That

this section creates a clear, non-discretionary duty on the part of

the Director was decided by this Court in Atlantic & Gulf

Stevedores, Inc. v. Donovan, 274 F.2d 794, 802 (5th Cir.1960); S ee

also Pyro Mining Co. v. Slaton, 879 F.2d 187, 190 (6th Cir.1989).

The facts in Atlantic & Gulf are very similar to the case at

bar. In A tla ntic & Gulf, the employer requested a hearing, and

when the director refused, the employer sought a mandatory order in

the district court to co mpel a hearing. After dismissal in the

district court, the case came before this Court presenting the

issue of whether the district court could properly or der the8 This case was decided prior to the 1972 Amendments to the

LHWCA which split the administrative and adjudicatory functions

between the Director and the OALJ respectively. Thus, at the

time that the Atlantic & Gulf case was decided, the Director not

only handled the administrative duties under the LHWCA, but he

also served as the hearing officer. See 33 U.S.C. § 919(d).

9 The Atlantic & Gulf Court found that this power to compel

action by the Director was inherent in the LHWCA itself.

However, even if were not, the Court explained that it certainly

did exist under the provisions of the APA. Specifically, the

Court found that every agency has a duty to conclude any matter

before it with reasonable dispatch and that the courts are

specifically empowered to review the inaction of an agency and to

"compel agency action unlawfully withheld or unreasonably

delayed." Atlantic & Gulf, 274 F.2d at 802 (quoting 5 U.S.C. §

706(1)).

10 Specifically, she argues that immediate referral of so

large a number of cases will overburden her office and inundate

the OALJ. Accordingly, she claims she has discretion to manage

the referral of these cases to the OALJ so as to conserve

administrative resources and maximize the efficiency of the

8 Director to proceed to a hearing. 8 A tlantic & Gulf, 274 F.2d at

796.

After reviewing the L HWCA, this Court found that, under 33

U.S.C. § 919(c), the Director had a clear and manda tory duty to

proceed t o a hearing. I d. at 802. Further, the A tlantic & Gulf

Court found that the Director was in derogati on of that duty and

that the district court was empowered to issue a suitable mandatory

order to compel compliance with that duty. 9

The Director herein does not seriously dispute the mandatory

nature of this duty. Instead, she contends that she has discretion

to delay the performance of that duty. The exercise of this

discretion is justified, she argues, because delaying the referral

of these cases would not prejudice Ingalls and because of the

administrative concerns she has raised. 10administrative process. Moreover, she argues that referral of

the cases should be delayed until after disposition of the "Pate"

cases which are already before the OALJ. Disposition of these

cases, the Director contends, will narrow the scope of the

dispute and help speed adjudication of the remaining cases

without the administrative burden of transferring all the cases

to the OALJ. Lastly, the Director claims to have discretion to

defer transferring the claims to allow her to develop the claims

better through further informal investigation.

9 We can not agree that the Director possesses discretion to

delay ordering a hearing after a request for one has been made.

Under the LHWCA, the Director is expressly granted broad discretion

in the early stages of a claim. As the majority of claims involve

problems that result from misunderstandings or mistakes of fact or

law which "seldom require resolution through formal hearings....

the [Directors] are empowered to amicably and promptly resolve such

problems by informal procedures." 20 C.F.R. § 702.301. These

efforts usually take the form of informal discussions, written

communications or informal conferences at the Director's offi ce.

20 C.F.R. § 702.317.

H owever, if it becomes apparent that the claim cannot be

settle d amicably, or on application of an interested party, the

Director's discretion ends and she must refer the case to the OALJ

for a hearing. This is clear from the governing regulations which

state that

if [the Director] is satisfie d that any further conference

would be unproductive, or if any party has requested a hearing, the [Director] shall prepare the case for transfer to

the Office of the Chief Administrative Law Judge.

20 C.F.R. § 702.316 (emphasis added). Further, it is clear from

the LHWCA itself which mandates that the Director "upon application11 A reviewing court will generally give judicial deference

to a reasonable statutory interpretation by an administrative

agency, Chevron United States, Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694

(1984); however, the court "should not defer to an agency

position which is contrary to an intent of Congress expressed in

unambiguous terms." Estate of Cowart, --- U.S. at ----, 112

S.Ct. at 2594.

10 of any interested party shall order a hearing thereon." 33 U.S.C.

§ 919(c).

To allow the Director discretion, after a request for a

hearing has been made, to delay performance of this duty until such

time as she, in her discretion, decides t hat such a hearing is

either necessary or administratively convenient would effectively

defeat the mandatory language of these provisions. We do not

believe that this would be consistent with either the statute or

the regulations. Therefore, whether Ingalls would be prejudiced

and whatever the meri ts of the administrative concerns that the

Director has raised, we hold that the Director lacked discretion to

delay the ordering of a hearing. 11

In sum, we note that Ingalls, an interested party herein, has

specifically and repeatedly requested that the Director transfer

the claims in iss ue to the OALJ for a hearing. Further, in her

reply brief to this Court, the Director admits that disposition of

these cases through informal means is highly unlikely. Under these

circumstances, we find that the Director had a clear, ministerial

and nondiscretionary duty pursuant to 33 U.S.C. § 919(c) to

transfer the claims in issue to the OALJ for a hearing. Moreover,

like the Atlantic & Gulf Court, we believe that mandamus was the12 Under the old LHWCA provisions, the one year limitations

period for the right to compensation for disability under the

LHWCA began to run at the time of the "injury." Marathon Oil Co.

v. Lunsford, 733 F.2d 1139, 1141 (5th Cir.1984). In some cases,

however, disability might not arise from an on the job "injury"

until much later. In such a case, a worker's right to receive

compensation for his disability could be time-barred before it

even accrued. To alleviate this problem, the Director would

accept "protective filings" from workers who showed no current

disability to satisfy the requirement that claimants file within

one year of their injury. Then, the claim would be held in

abeyance until such time as a compensable injury developed, if

one ever did. See Pillsbury, 342 U.S. at 199, 72 S.Ct. at 224.

11 proper remedy to redress the Director's failure to carry out this

duty. A tlantic & Gulf, 274 F.2d at 802. Accordingly, the district

court did not err in granting mandatory relief to Ingalls ordering

the Director to comply with her statutory duty.

3. PROTECTIVE CLAIMS

More than ninety percent of the workers who filed the claims

in issue herein allege to have been exposed to asbestos in the

workplace, but at present they display only minor or benign

pulmonary changes without showing any current disability. Thus,

they have no present clai m against Ingalls for disability.

Nevertheless, these workers filed claims with the Director pursuant

to an old administrative practice whereby a worker would make a

"protective filing" to prevent th e running of the statute of

limitations and thus preserve his or her right to seek compensation

for any possible f uture disability. 1 2 S ee Generally Pillsbury v.

United Engineering Co

., 342 U.S. 197, 199, 72 S.Ct. 223, 224, 96

L.Ed. 225 (1952).

In light of this, the Director contends that even if Ingalls

would otherwise have a right to demand that the Director transfer12

contested LHWCA claims to the OALJ for a hearing, we should hold

that these particular claims should be held in abeyance. This is

because they are not present claims for compensation and, as such,

maintenance of these claims in no way prejudices Ingalls. In

short, the Director would have us separate out these types of

claims and exempt them from the purview of the duty imposed by 33

U.S.C. § 919(c).

We do not choose to do this. First, as the Director's counsel

admitted in oral argument , there is nothing on the face of these

claims t o distinguish them as different from any other claim.

Second, nothing in the LHWCA or the governing regulations

authorizes the filing of protective claims or even recognizes their

existence. Moreover, the Board has specifically ruled that, under

the Act, there is no provision for protective filings. All claims

filed with the Di rector are to be treated as active claims and,

once file d, section 919(c) directs an investigation, and if

requested by an interested party, a hearing. B lack v. Bethlehem

Steel Corp., 16 B.R.B.S. 138, 142 (1984). Finally, the practice of

filing protective claims is no longer necessary. This is because

the 1984 amendments to the LHWCA make it clear that the limitations

period does not begin to run until a worker knows (or should know)

of the true nature of his condition, i.e., that it interferes with

his employment by impairing his ability to work, and its causal

connection with his employment. 33 U.S.C. § 913(b)(2); See also

Marathon, 733 F.2d at 1141-42. As this administrative practice has

been outdated for a decade, we do not wish to issue a ruling that13 Under the governing regulations, the Director is

authorized to permit such withdrawal, before the adjudication of

a claim, if it is "for a proper purpose and in the claimant's

best interest...." 20 C.F.R. § 702.225(a)(3). Moreover, the

withdrawal is without prejudice to the filing of a later claim,

subject to the time limitations of the LHWCA. 20 C.F.R. §

702.225(c).

14 This would be an unsurprising choice, particularly for

those who suffer no current disability and thus only made

protective filings. This is because their only purpose in filing

was to protect against the running of the statute of limitations

should disability later develop. As they are now protected by

the new limitations period, there is little benefit in

maintaining their protective claims. 33 U.S.C. § 913(b)(2);

Marathon, 733 F.2d at 1141-42. Also, as disability may never

develop, they may never have a claim to pursue. Until such time

as they do have a claim to pursue, there is scant reason to wage

this administrative battle.

13 would perpetuate this archaic and unnecessary procedure.

For these reasons, we hold that the protective claims filed in

the instant case enjoy no special status which would exempt them

from the reach of 33 U.S.C. § 919(c).

4. WITHDRAWAL

The Director related to the district court that if the court

were to rule that the claims must be referred to the OALJ, then

many claimants would likely seek to withdraw 13 their claims rather

than bear the expense of, and risk an adverse ruling from, an

administrative hearing at the present time. 14 Hence, the Director

argued that should the court rule that Ingalls was entitled to a

prompt hearing, the claimants sh ould be given an opportunity to

move for withdrawal and the Director should be entitled to consider

and act on th ose motions prior to, and in lieu of, referring the

claims to the OALJ. The district court, however, did not address

this argument, but rather it simply ordered the Director to14

transfer the claims within a reasonable time, not to exceed thirty

days.

On appeal to this Court, the Director continues to argue that

she should be allowed to consider motions for voluntary withdrawal

filed by the claimants. Ingalls, however, objects arguing that to

allow the Director to consider motions to withdraw would be

contrary to t he mandamus order. Further, Ingalls argues that

withdrawal should not be allowed because Ingalls has joined issue

by its substantive motions. Lastly, Ingalls contends that the

issue is not properly before the district court.

We think that this issue was properly before the district

court and should have been addressed. Our review of this issue is

hampered, however, because the record is not sufficiently developed

on this point. Nothing in the record discloses when, or even if,

proper motions to withdraw have been filed. Moreover, the effect

of the district court's mandamus order on the Director's power to

consider motions to withdraw is unclear. Accordingly, we think it

best to remand this issue to the district court for further

development and explication on this issue.

CONCLUSION

For the for egoing reasons, we AFFIRM the district court's

issuance of a writ of mandamus compelling the Director to perform

her duty unde r 33 U.S.C. § 919(c) and order a hearing on the

controverted LHWCA claims in issue. However, we REMAND the case to

allow the di strict court to further consider the issue of

withdrawal.15