IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60361

KENNETH E. CRAVEN,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS,

US DEPARTMENT OF LABOR, NORTHROP GRUMMAN SHIP SYSTEMS

INC. 

Respondents.

Petition for Review of an Order of the

United States Department of Labor

Before BENAVIDES, STEWART, and SOUTHWICK, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

Petitioner-appellant Kenneth E. Craven appeals the Benefits Review

Board’s (“Board”) November 21, 2008 denial of his appeal to the Board,

contending that the Board erred when it determined it did not have jurisdiction

to consider his direct appeal that bypassed the Administrative Law Judge

(“ALJ”). For the reasons discussed in greater detail below, the Court dismisses

Craven’s appeal for lack of subject matter jurisdiction since, as a result of

Craven’s failure to exhaust his administrative remedies, this Court has no final

order from the Board to review.

United States Court of Appeals

Fifth Circuit

F I L E D

April 27, 2010

Lyle W. Cayce

Clerk

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No. 09-60361

 See LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT (“LHWCA”), 33 U.S.C. 1

§§901-50, 2(7), 19, 39 (b); 20 C.F.R. § 701.301(a)(7). The statutory term “deputy commissioner”

and the current administrative designation “district director” are interchangeable terms.

 See 33 U.S.C. § 928(b) (requiring that, in the event that a dispute arises as to the

2

amount of additional compensation to which a claimant may be entitled, the deputy

commissioner shall set the matter for an informal hearing and issue a written

recommendation). 

2

FACTS AND PROCEDURAL BACKGROUND

On July 23, 2004, while acting in the course and scope of his employment

for one of the Respondent-appellees, Northrup Grumman, Craven sustained a

back injury. Initially, the company paid him temporary total disability. Once

it was determined that his injury was permanent, and not temporary, Craven

and Northrup debated the extent of his permanent disability (partial vs. total)

and the corresponding degree of additional compensation Craven should receive.

Shortly thereafter, Northrup began paying him benefits for permanent partial

disability. Craven, however, decided to pursue benefits for permanent total

disability.

In an attempt to resolve the dispute, the district director held two 1

informal conferences pursuant to the LHWCA. After the conferences, the 2

district director ultimately recommended that Northrup pay Craven

compensation for permanent partial disability. The company accepted the

district director’s recommendation, but Craven disagreed. Craven, however, did

not file his appeal with the ALJ–in accordance with the administrative scheme

Congress established in the LHWCA. Instead, Craven bypassed the ALJ and

filed his appeal directly with the Board, in an attempt to have the Board order

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No. 09-60361

 In Andrepont v. Murphy Exploration and Production Co., 566 F.3d 415 (5th Cir. 2009), 3

this Court determined that an unfavorable recommendation from the district director on the

issue of additional compensation, even if the claimant was later successful on that issue before

the ALJ, would preclude the claimant’s recovery of attorney’s fees pursuant to § 28(b) of the

LHWCA. See 33 U.S.C. § 928(b). Thus, although Craven recognized that the LHWCA only

administratively provides for a direct appeal to the ALJ following the informal

recommendation of a district director, Craven argued that as a result of this Court’s decision

in Andrepont, he should be permitted to appeal the issue of attorney’s fees directly to the

Board. 

3

the district director to issue a recommendation in his favor regarding the extent

of his disability. 

3

On November 21, 2008, the Board dismissed Craven’s appeal. In doing so,

the Board did not engage in an analysis of the merits underlying Craven’s claim

for additional disability compensation, nor did the Board evaluate the merits of

the district director’s informal recommendation. Instead, the Board dismissed

Craven’s appeal for lack of jurisdiction, finding that:

The [district director’s] memoranda of informal conferences are not

final appealable actions; they do not purport to be a final decision or

resolve matters within the authority of the district director. . . .

[Thus, Craven’s] recourse is with the administrative law judge, as

the issue raised by claimant concerns the extent of his disability,

which requires fact-finding by an administrative law judge in order

to resolve a dispute. As the district director’s memoranda of

informal conferences and associated correspondence are not final

decisions, they are not appealable under Section 21(b)(3) [of the

LHWCA]. 

Thus, the Board determined that it had no jurisdiction to hear Craven’s appeal

because, as a result of his failure to file his appeal with the ALJ for an

evidentiary hearing, Craven’s record contained no findings of fact and no “final

action” made by ALJ for the Board to review. 

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See 5 U.S.C. § 551 et seq.

4

4

After the Board dismissed his direct appeal for lack of jurisdiction, Craven

timely filed the instant appeal before us now. On appeal, Craven raises a

number of different issues. The crux of his appeal is that the district director

erred in issuing an informal memoranda that recommended permanent partial

disability–as opposed to permanent total disability. Craven also asserts several

arguments regarding this Court’s decision in Andrepont v. Murphy Exploration

and Production Co., 566 F.3d 415 (5th Cir. 2009). Craven contends that the

Court’s decision in Andrepont violates the Administrative Procedures Act4

(“APA”) as well as his constitutional right to due process. Craven requests that

this Court reconsider Andrepont and correct what he has characterized to be a

constitutional flaw in the Court’s decision.

STANDARD OF REVIEW

We review a decision of the Board “under the same standard as it reviews

the decision of the ALJ: Whether the decision is supported by substantial

evidence and is in accordance with the law.” Empire United Stevedores v. Gatlin,

936 F.2d 819, 822 (5th Cir. 1991) (citations omitted). In this case, however,

Craven did not appeal to the ALJ and instead filed a direct appeal with the

Board. Thus, as a result of Craven’s failure to comply with the LHWCA and

exhaust his administrative remedies, there was no decision from an ALJ for the

Board to review. The Board, therefore, had no jurisdiction to issue a final order

on the merits of Craven’s appeal. 

Because the Board did not issue a final order in this case, the first

question we must address is whether the Court has jurisdiction to hear the

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No. 09-60361

 See 33 U.S.C. § 919(a), (b). 5

 20 C.F.R. § 702.301. 6

5

instant appeal. See Said v. Gonzales, 488 F.3d 668, 670-71 (5th Cir. 2007) (“We

must raise the issue of our appellate jurisdiction sua sponte, if necessary.”). 

THIS COURT’S SUBJECT MATTER JURISDICTION

“This court’s jurisdiction to hear a petition for review from an LHWCA

administrative decision is derived solely from the appeal provision contained in

33 U.S.C. § 921(c).” Gulf Best Elec., Inc. v. Methe, 396 F.3d 601, 603-04 (5th Cir.

2004). A brief review of the LHWCA’s administrative scheme highlights the

jurisdictional defects created by Craven’s attempt to bypass the ALJ and appeal

his case directly to the Board.

The LHWCA and Department of Labor’s (“DOL”) implementing

regulations have established a three-tier process for adjudicating claims: 1)

informal mediation before the district director; 2) formal hearings and

fact-findings by an ALJ; and 3) appellate review by the Board (potentially

followed by a circuit court). Claims are initially administered by the district

director. The DOL’s regulations state that “the district directors are empowered 5

to amicably and promptly resolve such problems by informal procedures.” Yet 6

in cases such as the one presently before the Court–where the parties do not

reach an agreement following the district director’s informal

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 Under these circumstances, the district director’s informal recommendation is not 7

even transmitted to the ALJ. See 20 C.F.R. § 702.317(c).

 “The relevant language states that an ALJ has authority ‘to hear and determine all 8

questions in respect of such claim’ and the phrase ‘such claim’ references ‘a claim for

compensation.”’ Temp. Employment Serv. v. Trinity Marine Group, Inc., 261 F.3d 456, 461 (5th

Cir. 2001) (quoting 33 U.S.C. § 919(a)). 

 33 U.S.C. § 919(d). At this point a formal record is created, and the ALJ must set 9

forth his factual findings and conclusions on disputed issues in a written decision, which is

filed by the district director. 20 C.F.R. §§ 702.344, 702.348, 702.349; 33 U.S.C. § 919(e).

 33 U.S.C. § 921(b)(1). 10

 20 C.F.R. § 702.392. 11

 20 C.F.R. § 801.102(a) (stating that the Board hears appeals “from decisions or 12

orders with respect to claims for compensation or benefits”); § 802.301(a) (stating that the

Board cannot “engage in a de novo proceeding or unrestricted review of a case brought before

it[];” it is only “authorized to review the findings of fact and conclusions of law on which the

decision or order appealed from was based.”). 

6

recommendation–the district director has no authority to issue a compensation

order. Instead, the parties must take their claims to an ALJ. 7 8

The LHWCA makes clear that any evidentiary hearing “shall be conducted

by a[n] administrative law judge[,]” (not a district director), and the hearing

“shall be conducted in accordance with the provisions of section 554 of Title 5

[APA].” If the claimant is dissatisfied with the outcome following the hearing 9

before the ALJ, the claimant can appeal to the Board. Notably, the LHWCA 10

contains no provision that contemplates bypassing the evidentiary hearing

before the ALJ and appealing directly to the Board.

Instead, in the final and third tier of the LHWCA’s administrative scheme,

the DOL’s regulations stipulate that “appeals may be taken from compensation

orders when they have been filed as provided for in § 702.349.” The Board’s 11

own regulations contain almost identical provisions. The Board’s decisions 12

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 20 C.F.R. § 802.301(a). Notably, the regulations do not permit the parties to submit 13

new evidence to the Board that was not first submitted to the ALJ during the administrative

hearing. See id. § 301(b) (“Parties shall not submit new evidence to the Board. Any evidence

submitted by a party which is not part of the record developed at the hearing before the

administrative law judge will be returned without being considered by the Board.”).

 “The “‘final order’ requirement follows the contours of the finality rule expressed in 14

28 U.S.C. § 1291.” Newpark Shipbuilding & Repair, Inc. v. Roundtree, 698 F.2d 743, 746 (5th

Cir. 1983) (citing Dir., Office of Workers’ Comp. Programs v. Brodka, 643 F.2d 159, 161 (3d Cir.

1981); Nat’l Steel and Shipbuilding Co. v. Dir., Office of Workers’ Comp. Programs, 626 F.2d

106, 107-08 (9th Cir. 1980)). 

7

must be based on the “hearing record” (created during the hearing before the

ALJ), and “[t]he findings of fact in the decision under review by the Board shall

be conclusive if supported by [the] substantial evidence . . .” contained within

the ALJ’s evidentiary record.13

In the present case, Craven’s failure to appeal the district director’s

recommendation to the ALJ for an evidentiary hearing precludes this Court’s

jurisdiction to hear the instant appeal. That is because “[t]his court’s

jurisdiction to hear a petition for review from an LHWCA administrative

decision is derived solely from the appeal provision contained in 33 U.S.C. §

921(c).” Gulf Best. Elec. Inc. v. Methe, 396 F.3d 601, 603-604 (5th Cir. 2004).

Section 921(c) limits this Court’s review to a review of the “final order of the

Board.” 

There is no final order in this case. Craven’s attempt to bypass the ALJ 14

is particularly problematic because the LHWCA grants the ALJ the exclusive

authority to create an evidentiary record upon which an appeal must be based.

In turn, the Board’s own appellate jurisdiction is limited to reviewing the ALJ’s

decision based on the substantial evidence in the record–that is, the LHWCA

does not grant the Board authority “to substitute its views for those of the ALJ.”

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Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 944 (5th Cir. 1991).

Consequently, because 20 C.F.R. § 802.301(a) precludes the Board from engaging

“in a de novo proceeding or unrestricted review of a case brought before it . . . ”

and limits the Board’s authority to a “review [of] the findings of fact and

conclusions of law on which the decision or order appealed from was based,” we

conclude that the Board was correct to dismiss Craven’s appeal for lack of

jurisdiction. The Board could not reach a decision on the merits because the

Board was not presented with anything within its statutory purview to

review–that is, in this case there is no evidentiary record or compensation order

issued by an ALJ. The Board, therefore, was correct to decline to issue a final

order on the merits of Craven’s claim for additional disability compensation.

With no final order from the Board for this Court to review, Craven’s

instant appeal is solely predicated on the recommendation letter and informal

hearing memoranda issued by the district director. “The LHWCA does not,

however, extend to this Court original jurisdiction over the actions of the

Director in the exercise of her administrative authority.” Ingalls Shipbuilding,

Inc. v. Asbestos Health Claimants, 17 F.3d 130, 133 (5th Cir. 1994).

Consequently, the Court does not have jurisdiction to hear Craven’s appeal. Id.

(“Review by this Court is limited to final orders made by the Board in the

exercise of its adjudicatory authority.”) (citing 33 U.S.C. § 921(c)); see also

Mijangos, 948 F.2d at 943 (dismissing for lack of jurisdiction since “under 33

U.S.C. § 921(c), this Court has jurisdiction to review only final orders of the

Board.”). 

To conclude otherwise and permit Craven to proceed now on appeal would

enable claimants like Craven to circumvent the LHWCA’s administrative

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 Because we do not have jurisdiction to hear his appeal, we do not reach a conclusion 15

as to whether the district director erred in failing to recommend that Craven receive

compensation for permanent total disability. Likewise, we do not address Craven’s arguments

that Andrepont’s interpretation of 33 U.S.C. § 928(b) violates the APA or his constitutional

right to due process. First, we find it important to note that “one panel of this court cannot

overrule the decision of another panel.” Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247

(5th Cir. 1997). And finally, even if Craven’s argument that this Court’s decision in Andrepont

effectively denied him some sort of right to attorney’s fees contained some merit, his

constitutional arguments regarding the Andrepont’s articulation of § 928(b) would not cure the

jurisdictional defects created by his attempt to bypass the ALJ and circumvent the

administrative scheme established in the LHWCA. 

9

scheme–an administrative scheme that Congress designed “to encourage the

prompt and efficient administration of compensation claims.” Rodriguez v.

Compass Shipping Co., Ltd., 451 U.S. 596, 612 (1981).15

Accordingly, we DISMISS Craven’s appeal for lack of subject matter

jurisdiction. All pending motions are denied.

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