1 33 U.S.C. § 901 et seq.

2 The deputy commissioner has been retitled district director. 20 C.F.R. § 702.105. United States Court of Appeals,

Fifth Circuit.

Nos. 91–4608, 91–4834 to 91–4836.

INGALLS SHIPBUILDING, INC., Petitioner,

v.

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

OF LABOR, and Calvin C. Rouse, Respondents.

INGALLS SHIPBUILDING, INC., Petitioner,

v.

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

OF LABOR, and Annie L. Jackson–Tucker, Respondents.

INGALLS SHIPBUILDING, INC., Petitioner,

v.

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

OF LABOR, and Catherine L. Benn, Respondents.

INGALLS SHIPBUILDING, INC., Petitioner,

v.

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

OF LABOR, and Clydia Alford, Respondents.

Nov. 5, 1992.

Petitions for Review of a Final Order of the Benefits Review Board, Uni ted States Departm ent of

Labor.

Before POLITZ, Chief Judge, SMITH and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:

Ingalls Shipbuilding, Inc. again seeks relief from statutory penalties for late payment o f

Longshore and Harbor Workers' Compensation Act 1 claims on the basis of a letter of excuse granted

by the deputy commissioner 2 of the Department of Labor's Office of Workers' Compen sati on3 33 U.S.C. § 914(b), (d), (e).

4 33 U.S.C. § 914(e). Programs. Bound by our prior decision holding this letter invalid, and declining to apply the

principles of equitable estoppel against the government, we reject the petition for review and affirm

the assessment of penalties by the Benefits Review Board.

Background

An unprecedented 2,000 hearing-loss claims under the LHWCA were filed against Ingalls

during an eight-month period. The statute requires an employer to pay the first installment o f

c o mpensat ion within 14 days after he "has knowledge of the injury," unless he files a notice of

contro version or obtains a letter of excuse from the deputy commissioner within that time. 3 In

particular, section 14(e) of the LHWCA provides:

If any inst allment of compensation payable without an award is not paid within fourteen days

after it becomes due...., there shall be added to such unpaid installment an amount equal to

10 per centum thereof

..., unless no t ice [of controversion] is filed ..., or unless such

nonpayment is excused by the deputy commissioner af t er a sho wing by the employer that

owing to conditions over which he had no control such installment could not be paid within

the period prescribed for the payment. 4

On May 11, 1987, Ingalls wrote the deputy commissioner requesting an excuse. The letter

stated:

This is to confirm our telephone conversations and your letters

... concerning the high number

of hearing loss claims which have been filed with your office and your request that we hold

all filings with your office until receipt of notice of claim from your office. We appreciate the

administrative problems caused by the over 2,000 hearing loss claims which have been filed

against Ingalls/Litton within the past 8 months and wish to do everything we can to cooperate with you.

We are in agreement with your position that the time to respond to a claim and/or make any

payment commences after service of that written claim from your office. However, we would

appreciate writt en confirmation that owing to conditions over which Ingalls/Litton has no

control, such response and/or payment cannot be made any earlier.

We believe that the administrative burdens currently being visited upon your office can be

solved if Ingalls is excused from filing notices , responses, and/or making payments of

compensation until 28 days from the date of receipt of the notice of claim from your office,

owing to these conditions over which we have no control.

The deputy commissioner replied on May 14, 1987:

I have received and reviewed your letter of May 11, 1987 regarding the volume of hearing5 Fairley v. Ingalls Shipbuilding, Inc., 22 BRBS 184 (Ben.Rev.Bd.1989) ( en banc ).

6 Id.

7 898 F.2d 1088 (5th Cir.1990). loss claims filed against Ingalls Shipbuilding. The situation is without precedent in my

experience here, and I believe that the granting of the excuse you seek is warranted and within

my authority under Section 14(e) of the Act.

Effective immediat ely, Ingalls is excused from filing notices, responses, controversions, and

making payments in regard to hearing loss claims which have been filed, or will be filed, until

28 days following service on Ingalls of a claim from this office. This excuse is in effect until

further notice.

On April 18, 1988 the deputy commissioner terminated the excuse with a letter explaining:

Because of additional te mpo rary staffing to handle just hearing loss claims, we are

approaching currency in processing those claims, and the emergency situation present in 1987

no longer exists. Ingalls, as of the date given above, will be required to comply with Section

14 of the Act upon receipt of any claim for hearing loss.

Adjudicating claims filed prior to those at issue herein, the Benefits Review Board found that

the May 14 excusal was premised on administrative difficulties in the deputy commissioner's office

and consequently was not authorized by section 14(e). 5 Difficulties within the deputy commissioner's

office, the Board reasoned, did not constitute conditions beyond Ingalls' control which prevented

t imely payment or controversion because the "employer's duty to pay or controvert the claim is not

... triggered by any action of the deputy commissioner" when the employer learns of the injury directly

from the claimant, as Ingalls did wi t h the claims sub judice. In so holding, the Board specifically

noted that "employer's counsel stated repeatedly at the administrative law judge hearing and at oral

argument before the Board that it was the deputy commissioner who was experiencing problems, not

[the] employer." 6 On appeal we upheld the Board's assessment of section 14(e) penalties in I ngalls

Shipbuilding, Inc. v. Director, OWCP and Fairley. 7

The consolidated appellate petitions involve four hearing loss claims with pay -or-controvert

deadlines occurring after the issuance of the May 14 excuse letter, unl ike t hose adjudicated in

Fairley. Ingalls failed to pay or to co nt ro vert within 14 days of the claimants' notices of injury.

Relying on Fairley, the administrative law judge found the May 14, 1987 excuse letter invalid and

assessed statutory penalties; the Board affirmed. Ingalls timely petitioned for review of each of the8 Terrell v. DeConna, 877 F.2d 1267 (5th Cir.1989) (outlining federal rule of issue preclusion);

see Aerojet–General Corp. v. Askew

, 511 F.2d 710 (5th Cir.1975) (federal law determines

whether a prior federal court judgment is res judicata ), cert. denied sub nom. Metropolitan

Dade County, Fla. v. Aerojet–General Corp., 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137

(1975).

9 See, e.g., Pruitt v. Levi Strauss & Co., 932 F.2d 458 (5th Cir.1991).

10 Mangaroo v. Nelson, 864 F.2d 1202 (5th Cir.1989).

11 Office of Personnel Management v. Richmond, 496 U.S. 414, 422, 110 S.Ct. 2465, 2470,

110 L.Ed.2d 387, 398 (1990). four decisions and we granted its motion to consolidate.

Analysis

Contending that it sought the May 14, 1987 respite because of its own administrative

overload, Ingalls asks us to find the deputy commissioner's authorization within the ambit of section

14(e) of the LHWCA. This we cannot do. Ingalls litigated t he basis and validity of the letter in

Fairley, the issue was resolved in that proceeding, and the resolution was necessary to the imposition

and affirmance of statutory penalties. Accordingly, federal rules of collateral estoppel prevent our

revisiting this issue, 8 as does our circuit rule that one panel may not ignore the decision of a prior

panel absent intervening legislation or a superseding decision by the Supreme Court or this court en

banc. 9

Alt ernatively, Ingalls asks us to estop the government from asserting the invalidity of the

excuse and assessing penalties. Distinguishing the instant claims from those adjudicated in F airley,

Ingalls argues that it has shown detrimental reliance on the deputy commissioner's excuse because

the May 14 letter was issued before the 14–day deadline to pay the first installments or to controvert

the claims. We decline to estop the government from enforcing the statute.

The private litigant who would estop the government bears a very heavy burden. 10 Although

the Supreme Court has not held that equitable estoppel would never lie against the government, it

recently pointedly reminded that it has "reversed every finding of estoppel that [it had] reviewed." 11

And as we earlier had explained:

In the

... us ual case, a party claims that the government is estopped from enforcing an

otherw ise applicable statute, regulation, or other law against it because it relied upon an12

Mangaroo, 864 F.2d at 1205 (citations omitted); see also Mendrala v. Crow n Mortgage

Co., 955 F.2d 1132, 1140 (7th Cir.1992) ("As with other claims of estoppel against the

government, the question is: "Who is in charge here, Congress and the President or subordinate

officials?' ") (quoting United States v. Medico Industries, Inc., 784 F.2d 840, 845 (7th Cir.1986)).

13 (1) that the party to be estopped was aware of the facts; (2) that the party to be estopped

intended his act or omission to be acted upon; (3) that the party asserting estoppel did not have

knowledge of the facts; and (4) that the party asserting estoppel reasonably relied on the conduct

of the other to his substantial injury. Mangaroo, 864 F.2d at 1204.

14 Mangaroo, 864 F.2d at 1204–05, quoting Fano v. O'Neill, 806 F.2d 1262, 1265 (5th

Cir.1987). err o neo us statement or conduct by a government official indicating that the law was not

applicable.... In such cases, we are reluctant to estop the government for the simple reason

that, were the government barred from enforcing its laws and regulations every time one of

its human agents erred, laws that were intended to be generally ap plicable would become

riddled with exceptions. 12

Accord ingly, we have required that a party claiming equitable estoppel establish not only the

traditional private law elements 13 but also "more than mere negligence, delay, inaction, or failure to

follow an internal agency guidelines." 14

This is not a case where estoppel lies. Ingalls contends that its reliance on the deputy

commissioner's excuse was reasonable because the scope of section 14(e) had not been tested prior

to Fairley. For this same reason, Ingalls cannot successfully contend that the deputy commissioner's

decision to issue an excuse on the basis of the grounds cited in Ingalls' May 11, 1987 letter of request

went beyond "mere negligence." Ingalls makes no allegation that the deputy commissioner knew that

an excuse premised on these grounds was unauthorized or otherwise sought to mislead Ingalls into

its present position. To the contrary, t he deputy commissioner merely made an improvident

assessment of the scope of his autho rit y under section 14(e). This scenario evokes exactly the

concerns that caution against estopping the government.

We recognize the harsh effects of the statutory scheme on employers who incur penalties if

they act in re liance on a section 14(e) excuse that later is declared invalid. As the Court recently

noted in commenting on the admittedly harsh effe ct s of another LHWCA provision, however,

"Congress has spoken with great clarity to the precise question raised by this case.... It is Congress15 Estate of Cow art v. Nicklos Drilling Co., et al, ––– U.S. ––––, ––––, 112 S.Ct. 2589, 2598,

120 L.Ed.2d 379, 394 (1992).

16 State of Texas v. United States, 866 F.2d 1546, 1561 (5th Cir.1989). that has authority

to change the statute, not the courts." 15

Finally, Ingalls urges us to consider its "First Report of Injury or Occupatio nal Illness" the

equivalent of a notice of controversion and thereby to find t imely controversion in two of the four

claims. Because Ingalls failed to present this argument in the administrative proceedings, we may not

consider it here. 16

Petition for Review is DENIED.