1 As we explain more fully below, two factually distinct, but

interdependent proceedings are implicated here. The first involves

the mandamus order resulting from the District Director's delay in

transferring for adjudication approximately 3,100 cases, including

Boone's. The instant appeal concerns actions taken by the District

Director after the mandamus order i ssued, in which the District

Director considered and granted m otions to withdraw without

prejudice. The two proceedings are interrelated because the

gravamen of Ingalls' complaint regarding the District Director's

post-mandamus actions is that the earlier mandamus order removed

her authority to grant such motions.

1 United States Court of Appeals,

Fifth Circuit.

Nos. 94-40778, 94-40830 to 94-40841, 94-40853 to 94-40864, 94-

40921 to 94-40929, 94-40961 to 94-40970, 94-40980 to 94-41000, 94-

41058 to 94-41062, 94-41064 to 94-41068.

INGALLS SHIPBUILDING, INC., and American Mutual Liability

Insurance Company in Liquidation by and through Mississippi

Insurance Guaranty Association, Petitioners,

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S.

Department of Labor and Wilbur Boone, et al., Respondents.

April 26, 1996.

Petitions for Review of an Order of the Benefits Review Board.

Before REAVLEY, JOLLY and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal is the latest chapter in the case of the dauntless

District Director. 1 Although the District Director of the Office

of W orkers' Compensation Programs was mandamused (after several

years of deliberate delay) by the district court to comply with the

Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et

seq. ("LHWCA"), and to tran sfer for adjudication approximately

3,100 similar worker co mpensation claims, she only nominally2 Because Boone's claim is the lead case in these appeals, all

references herein are to Boone as the claimant and to the sequence of events with respect to his claim.

2 complied. She transferred the cases as directed; she then

proceeded, however, to consider and grant motions to withdraw

without prejudice claims filed by Wilbur Boone ("Boon e") and

seventy-four other claimants, whose claims are cons olidated for

this appeal. 2 The District Director acted on these motions to

withdraw notwithstanding the intent of a district court in an

earlier mandamus order that the Office of Administrative Law Judges

("OALJ")—and only the OALJ—would consider and decide these motions

to withdraw. Ingalls appealed the District Director's withdrawal

orders to the Benefit Review Board (the "Board"), contending, among

other things, that the District Director's actions violate d the

prior mandamus order.

The Board, sitting en banc, dismissed the appeal. B oone v.

Ingalls Shipbuilding, Inc., 28 BRBS 119 (19 94) ( e n banc ). The

Board held that Ingalls lacked standing under 33 U.S.C. § 921(c) to

seek review of the decision and that the issues presented by

Ingalls were not ripe for adjudication. The Board also concluded,

however, that the District Director had acted outside her authority

by approving Boone's motion to withdraw his claim; it nevertheless

held that the grant of withdrawal without prejudice was harmless.

In the Board's view, the lack of standing and ripeness, as well as

the lack of harm, rests on a single missing element: Ingalls has

suffered no injury by Boone's withdrawal. The Board reasoned that

because Boone's withdrawal abrogated Boone's claim against Ingalls,3

Ingalls is not injured until and unless Boone refiles his claim.

Thus, on appeal, the central question is whether the Board

erred in finding that Ingalls suffers no present injury as a result

of the District Director's withdrawal order permitt ing Boone to

withdraw his claim without prejudice. We conclude that the

withdrawal order necessarily injures Ingalls because it strips

Ingalls of a valuable right conferred upon it by the mandamus

order—namely, the right to have Boone's claim transfe rred to a nd

decided by the OALJ. Consequently, we reverse the Board's

conclusions as to standing, ripeness and lack of harm, we vacate

the orders allowing Boone and the other claimants to withdraw their

claims without prejudice, and we remand for further proceedings

consistent with this opinion.

I

As we have earlier indicated, thi s appeal from the

administrative decision o f the Board inextricably involves the

mandamus order of the district court in a separate proceeding. We

thus retrace a little of the history behind this appeal.

In 1987, Boone filed a claim against Ingalls Shipbuilding,

Inc. for worker compensation benefits alleging that a diagnosis of

pulmonary disease was related to his exposure to asbestos during

his employment. After filing this claim, Boone entered into

third-party settlements with asbestos manufacturers and

distr ibutors. Although Boone gave notice to Ingalls of these

settlements, he failed to obtain its consent as required by the

LHWCA.4

In 1990, Ingalls filed a Pre -Hearing Statement with the

District Director, requesting that the District Director refer to

the OALJ for an administrative hearing of Boone's case and the

cases of approximately 3,100 other claimants. Ingalls also filed

a motion for summary judgment with the OALJ asserting that under

section 933(g) of the LHWCA, Boone's third-party settlement without

its approval as his employer bars his recovery under the LHWCA.

The District Director refused for more than t wo years to

transfe r the cases to the OALJ. In addition, she indicated no

intention of ever tra nsferring the cases. S ee Ingalls

Shipbuilding, Inc. v. Asbestos Health Claimants, 17 F.3d 130, 131

(5th Cir.1994) (" Ingalls I ") (discussing the District Director's

"new and inventive rationales for deferri ng the referral" of the

LHWCA claims against Ingalls). Thus, Ingalls went to the federal

district court seeking relief. On January 7, 1993, it obtained a

writ of mandamus of the district court ordering the District

Director to transfer these cases.

The District Director then appealed the mandamus order to this

court. We affirmed the mandamus order, but remanded for further

explication. S ee id. Before our opinion issued, however, Boone

set in motion the events forming the basis for this appeal.

Specifically, on January 19, 1993 , two weeks after the

mandamus order issued but before the District Director had actually

obeyed the mandamus order and transferred the cases, Boone filed

with the District Director a motion to withdraw his claim . He

stated that although he had been diagnosed with asbestos-related5

pulmonary dis ease, he had sustained no compensable disability.

Approximately three weeks later, on February 12, 1993, the District

Director transferred to the OALJ all 3,094 claims, in cluding

Boo ne's, as directed by the mandamus order. More than a month

after she had transferred the cases to the OALJ, on March 18, 1993,

the District Dire ctor approved the withdrawal of Boone's claim

without prejudice. Ingalls appealed that withdrawal order to the

Board.

During the pendency of Ingalls's administrative appeal of the

withdrawal order, we issued our opinion affirming the earlier

mandamus order of the district court. S ee Ingalls I, 17 F.3d 130.

In upholding the mandamus order, we specifically rejected the

contention that the District Director pos sesses discretion under

the LHWCA to delay ordering a hearing after a request for one has

been made. I d. at 134. Instead, we found that the "[District]

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." I d. We further concluded that the

"mandamus order was the proper remedy t o redress the [District]

Director's failure to carry out this duty." Id.

We also considered whether the Distri ct Director "should be

entitled to consider and act on motions to withdraw prior to and in

lieu of referring claims to the OALJ." I d. at 135-36. Because

"the effect of the distric t court's mandamus order on the

[District] Director's power to consider motions to withdr aw is

unclear," we remanded "for further development and explication" by6

the district court of the District Director's power to consider

such motions. Id. at 136.

On remand, the district court filed a memorandum opinion and

order explaining its earlier mand amus order. S ee Memorandum

Opinion and Order of February 27, 1995. The district court

concluded that although the mandamus order permitted claimants to

move to withdraw claims, the OALJ—and not the District Director—was

authorized to consider such motions. The District Director did not

appeal the February 27, 1995 order.

Sometime after our opinion in Ingalls I issued, the Board

heard and rejected Ingalls' administrative appeal in the case now

before us. The Board dismissed Ingalls's appeal of the withdrawal

order for lack of standing and as not being ripe for adjudication.

Boone v. Ingalls Shipbuilding, Inc., 27 BRBS 250 (1993), aff'd en

banc, 28 BRBS 119 (1994). The Board reasoned that Ingalls will

"not be adversely affected or aggrieved unless or until a new claim

is filed" by Boone. I d. Ingalls filed a motion for

re consideration on the merits and the Board granted the motion.

Boone v. Ingalls Shipbuilding, Inc., 28 BRBS 119 (1994) ( en banc ).

Upon reconsideration en banc, the Board continued to deny the

requested relief of vacating the withdrawal order. The Board held

that, because Ingalls faces no "direct or immediate hardship" as a

result of the withdrawal without prejudice, Ingalls lacked standing

under 33 U.S.C. § 921(c) and that the issues presented by Ingalls

were not ripe for adjudication. The Board also concluded that the

District Director had failed to perform her mandatory duty by not3 Two motions are carried with this case on appeal: First,

Boone's motio n to dismiss Ingalls's appeal or, alternatively, to

affirm summarily the Board's decision. We consider this motion in

our discussion of the merits of Ingalls's appeal.

Second, Ingalls's motion to strike the brief of the

Director of the Office of Workers' Compensation Programs (the

"Director") has been ca rried with the case. Ingalls argues

tha t the Director's brief should be struck because the

Director is not "affected or aggrieved" by the issues in this

case and thus has no standing under LHWCA section 921(c) to

participate in the appeal. We disagree. In I ngalls

Shipbuilding Div., Litton Systems, Inc. v. White, we rejected

the argument that the Director must demonstrate an injury to

justify his standing to appeal under section 921(c). 681 F.2d

275, 282 (5th Cir.1982), overruled on other grounds by Newpark

Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399, 406-07

(5th Cir.1984) (en banc). Instead, we held that under Federal

Rule of Appellate Procedure 15(a), together with the LHWCA and

regulations thereunder, the Director is the agency-respondent

and therefore entitled to respond in this court. I d. at 284.

Consequently, w e deny Ingalls's motion to strike the

Director's brief.

4 Section 921(c) provides that any "person adversely affected

or aggrieved by a final order of the Board may obtain a review of

that order." 33 U.S.C. § 921(c).

7 transferring Boone's case to the OALJ upon request. It

nevertheless held that this failure was harmless because the

withdrawal abrogated Boone's compensation claim against Ingalls.

Ingalls now appeals the Board's decision. 3

For purposes of clarity, let us now iterate what is and is not

before us: The District Director has not appealed the district

court's 1995 order clarifying the meaning of the 1993 mandamus

order; before us is only Ingalls's appeal from the administrative

decision and order of the Benefit Review Board allowing the

District Director's withdrawal order to stand.

II

Ingalls challenges the Board's holdings as to standing, 45 Determining rip eness for review has been described as a

two-step analysis, requiring that an issue be fit for review and

that the parties face a "direct and immediate hardship [which]

would entail more than possible f inancial loss" if review is

withheld. Chavez v. Directors, OWCP, 961 F.2d 1409, 1414-15 (9th

Cir.1992).

6 Ingalls also attacks the withdrawal decision on several other

bases, includin g LHWCA section 919(c) and its applicable

regulation, section 702.225, both of which govern hearings; LHWCA

section 933(g), governing employer defenses; and Federal Rule of

Civil Procedure 41(a)(2). Because we find that the mandamus order

controls the District Director's duties and, therefore, is

8 ripeness, 5 and the harmlessness of the District Director's actions.

Each of these holding rest, in the Board's view, on a single

missing element—that Ingalls suffers no present harm as a result of

Boone's withdrawal of his claim witho ut prejudice. Ingalls will

not be injured, the Board held, unless and until Boone refiles his

claim.

Ingalls argues that it indeed has been presently inju red by

the District Director's order p ermitting Boone to withdraw his

claim without prejudice. The District Director, Ingalls argues,

has denied it an important procedural right to have Boone's case

transferred to and decided by the OALJ, a right conferred on

Ingalls by the district court's mandamus order of January 7, 1993,

as explicated further by the district court on February 27, 1995.

The withdrawal order, Ingalls maintains, nu llifies its right to

have Boone's suit transferred to the OALJ pursuant to the district

court's mandamus order. The withdrawal order, moreover, deprives

it of its "day in court" and its absolute right to have its

potential liability, and any associated motions, determined by an

administrative law judge ("ALJ"). 6dispositive, we need not reach the merits of Ingalls's other

arguments.

9 Because Ingalls, in order to show injury, charges that the

District Director has denied it a right conferred by the district

court's mandamus order, we examine the effect of that order in some

detail.

III

As we noted earlier, we found in Ingalls I that the "mandamus

order was the pro per remedy to redress the [District] Director's

failure to carry out" its "clear, ministerial and nondiscretionary

duty

... to transfer the claims in issue to the OALJ for a

hearing." 17 F.3d at 134. We did not decide, however, whether the

District Director possessed the authority under the mandamus order

"to consider and act on" any motions for withdrawal "prior to, and

in lieu of, referring the claims to the OALJ." I d. at 135-36.

Instead, we remanded this question to the district court "for

further development and explication." Id. at 136.

On remand, the district court considered tw o questions:

First, whether it erred in its mandamus order in categorically

ordering the transfer of the 3,094 claims to the OALJ and, second,

whether that ma ndamus order permitted the District Director to

consider and decide motions to withdraw the transferred claims.

The district court answered the firs t question in the

negative. The court found no error in its "categoric transfer of

the claims [subject to the mandamus order] ... given the District

Director's delay in complying with the [LHWCA and] the failure of10

the claimants to move for withdrawal until after our January 7,

1993 mandamus order...." D.Ct. Memorandum and Op. at 8.

The district court then considered the effect of the mandamus

order on claimants' motions to withdraw pending claims. The court

concluded that although t he mandamus order permits claimants to

withdraw their claims, it authorizes the ALJ—and not the District

Director—to consider such motions. Consideration of such motions

by the ALJ is proper, the court found, because "the administrative

scheme s et up by the [LHWCA] is best suited to handle the

resolution of the par ties' interests." I d. at 8-9. The LHWCA,

moreover, permits motions for withdrawal to be filed with and acted

on by the ALJ. I d. at 8-9 (stating that the "ALJ is vested with

the authority of the District Director up on transfer," including

the authority to hear and decide motions for withdrawal).

The court then explicitly considered and rejected the District

Director's authority to consider and decide motions to withdraw the

transferred claims. The court first stated that it may have been

inclined, if it had been asked, to give the District Director some

discretion to act on the claimants' mot ions to withdraw pending

claims. The court concluded, however, that "when an administrative

officer refuses to set the process in motion which warrants

mandamus relief, entirely different considerations are present."

Id. The court similarly refused to "order a re-transfer to the

Director for consideration of the m otions to withdraw," finding

that this would not "be in the best interests of the parties." I d.

This is so "[b]ecause the referenced claims were transferred to the11

OALJ approximately two years ago." Id.

In short, the district court found that although its mandamus

order does not bar claimants from seeking to withdraw their claims,

it authorizes only the ALJ—and not the District Director—to

consider such motions.

IV

We now must decide whether the District Director's order

permitting Boone to withdraw his claim without prejudice "adversely

affect[s] or aggrieve[s]" Ingalls to the extent that it provides

Ingalls standing, creates a "direct and immed iate hardship" on

Ingalls so that the issue is ripe for adjudication, and is

"harmless" because it abrogated Boone's claim against Ingalls. As

we have noted above, each of these inquiries hinges on whether

Ingalls suffers a present injury as a result of the District

Director's withdrawal order.

In Ingalls I, we held that Ingalls was entitled to the

extraordinary remedy of mandamus in order to counter the District

Di rector's "inventive rationales for deferring the referral" of

approximately 3,100 claims, including B oone's. 17 F.3d at 131.

The mandamus order plainly directed the District Director to

transfer Boone's claim to the OALJ. In addition, that order, as

clarified, removed the authority of the District Director to grant

or deny any motion to withdraw; it specifically provided that the

OALJ, and only the OALJ, may consider and dispose of pending

motions for withdrawal. The order therefore created a clear,

nondiscretionary duty on the District Director to transfer Boone's12

case to OALJ for adjudi cation a nd to refrain from considering

motions for withdrawal following the transfer to the OALJ.

The District Director violated the mandamus order when she

considered and act ed upon Boone's motion to withdraw his case

without prejudice. By permitting Boone to withdraw his claim, the

District Director undermined the process that the district court

established for the resolution of Bo one's claim and any motions

with respect to that claim. Instead of having Boone's claim

against it, including all motions pertaining to that claim, heard

in an adjudicative forum and decided by the OALJ, Ingalls had the

motions for withdrawal of claims against it considered by, in the

district court's words, the "administrative officer [who] refuse[d]

to set the process in motion which warrants mandamus relief."

D.Ct. Memorandum and Op. at 8. This procedure was rejected by the

district court's mandamus order. The District Director's action

thus injures Ingalls because it strips Ingalls of the valuable

procedural right to have the motions to withdraw considered in an

adjudicative forum and in a different forum from the executive

forum that had been indifferent, if not hostile, to Ingalls' rights

for two years.

In the light of this injury, we conclude that Ingalls is

"adversely affected or aggrieved" by the District Director's order

and thus has stan ding under section 921(c) to seek review of the

Board's decision in this court. We further find that Ingalls faces

a "direct and immediate hardship" as a result of Boone's withdrawal

of his claim and thus presents a controversy that is ripe for7 A lthough we are "limited [in reviewing Board orders] to

considering errors of law and making certain that the Board adhered

to its statutory standard of review of factual determinations," we

conclude th at the Board has made an error of law in finding that

the District Director's action here is harmless. Boland Marine &

Mfg. Co. v. Rihner, 41 F.3d 997, 1002 (5th Cir.1995).

13 review. Finally, we conclude that because the District Director's

action has in jured Ingalls, the District Director's error in

permitting Boone to withdraw his claim cannot be harmless. 7

V

In sum, we deny Ingalls's moti on to strike the brief of the

Director, we deny Boone's motion to dismiss Ingalls's appeal, and

we VACATE the District Director's or ders allowing Boone and the

other clai mants to withdraw their claims without prejudice. We

REMAND for further proceedings not inconsistent with this opinion.

VACATED and REMANDED.