*District Judge of the Western District of Texas, sitting by

designation. 

 

133 U.S.C. § 901 et seq. 

1

United States Court of Appeals,

Fifth Circuit.

No. 95-60578.

AETNA CASUALTY & SURETY CO., Petitioner,

v.

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

DEPARTMENT OF LABOR; Eva Jourdan, (Widow of E. Elliot Jourdan);

Equitable Equipment Company, A Subsidiary of Trinity Industries,

Incorporated; Fidelity & Casualty Company of New York; Wausau

Insurance Company, Respondents.

Oct. 22, 1996.

Petition for Review of an Order of the Benefit Review Board.

Before JONES and WIENER, Circuit Judges, and FURGESON,* District

Judge.

WIENER, Circuit Judge:

This appeal presents narrow procedural questions concerning

the timeliness of appeals to the Benefits Review Board (BRB) under

regulations promulgated pursuant to the Longshore and Harbor

Workers' Compensation Act (LHWCA).1 More particularly, we are

asked to determine whether the BRB properly dismissed an insurer's

appeal from a decision of an Administrative Law Judge (ALJ) as

premature because another party had filed a timely Motion for

Reconsideration of the ALJ's decision after the filing of the

insurer's notice of appeal.

I
2

FACTS AND PROCEEDINGS

This appeal arises from the death of E. Eliot Jourdan, a

former employee of the Equitable Equipment Company, now a part of

Trinity Marine Group, a division of Trinity Industries, Inc.

(Equitable). Jourdan was employed at Equitable from 1940 until his

retirement in 1973, and died on June 6, 1985. An autopsy revealed

that Jourdan's death was caused, at least in part, by asbestos

related conditions sustained during the course and scope of his

employment with Equitable. In February of 1986, Jourdan's widow,

Eva Q. Jourdan (Claimant), filed a formal claim for death benefits

under the LHWCA.

Employers Insurance of Wausau (Wausau), Equitable's worker's

compensation carrier at the time of Mr. Jourdan's retirement, was

placed on notice of the claim and defended both itself and

Equitable at a hearing held before an ALJ on June 26, 1987. In a

Decision and Order dated March 22, 1988, the ALJ found that

Claimant was entitled to death benefits, medical expenses, and

funeral expenses, yet ruled that Wausau was not the responsible

carrier because no evidence had been introduced to show that

Jourdan had been exposed to asbestos subsequent to the date that

Wausau's coverage began. As the ALJ determined neither the date of

Jourdan's last exposure to asbestos nor the responsible insurance

carrier, Equitable filed a Petition for Modification seeking

findings of fact on these two issues. At this point, PetitionerAppellant Aetna Casualty & Surety Company of New York (Aetna) and
3

Fidelity & Casualty Company of New York were made parties to the

proceeding. After a complex series of maneuvers unrelated to this

appeal, during which Claimant's case wound its way from the

Department of Labor, to the BRB, to this court, and finally back to

a new ALJ, a hearing was conducted by the new ALJ on January 14,

1994, on Equitable's Petition for Modification. From this date

forward, the chronology of events accelerates and becomes paramount

to the issues we face on appeal, to-wit:

August 16, 1994: The new ALJ's Decision and Order—finding,

inter alia, Aetna to be the responsible worker's compensation

carrier—was filed and thereafter served on the parties.

August 22, 1994: The Director of the Department of Labor's

Office of Worker's Compensation Programs (OWCP) filed a Motion for

Reconsideration in Part, contending that the new ALJ erroneously

ruled that Equitable was discharged from liability for current and

future benefits.

September 13, 1994: Aetna mailed a Notice of Appeal to the

BRB and sent copies to a number of officials on subsequent days.

September 14, 1994: Aetna's original Notice of Appeal was

received and stamped by the BRB.

September 27, 1994: A copy of Equitable's Notice of Appeal,

intended for Marilyn C. Felker, the District Director for the

Seventh Compensation District, whose office is located in New

Orleans, Louisiana, was erroneously addressed to her at the
 

2881 F.2d 157 (5th Cir.1989), cert. denied, 495 U.S. 904, 110

S.Ct. 1922, 109 L.Ed.2d 286 (1990). 

4

Washington, D.C. office of the BRB where it was received and

stamped by the BRB. (Felker's copy was post-marked September 19,

1994.)

September 28, 1994: The District Director filed and mailed

the new ALJ's Decision and Order on Motion for Reconsideration,

originally dated September 20, 1994, granting the Director's motion

and specifically amending his prior Decision and Order to provide

that Equitable was not discharged from liability for current and

future benefits due the Claimant. Also on this date, Equitable

filed a cross-appeal by mail, which was received by the BRB on

October 2, 1994.

November 21, 1994: Equitable filed a motion to have the BRB

dismiss Aetna's September 14th appeal as premature pursuant to 20

C.F.R. § 802.206(f).

March 24, 1995: By a majority vote, the BRB dismissed Aetna's

appeal as having been prematurely filed, relying on 20 C.F.R. §

802.206(f) and the reasoning of this court's decision in Tideland

Welding Service v. Sawyer.2

Subsequent to this dismissal, Aetna moved for reconsideration

and reconsideration en banc, but in an order dated July 21, 1995

the BRB adhered to its decision. Aetna now seeks our review under
 

333 U.S.C. § 921(c). 

 

4Boland Marine & Mfg. Co. v. Rihner, 41 F.3d 997, 1002 (5th

Cir.1995) (quoting Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88,

90 (5th Cir.1990)). 

 

5See Tideland Welding, 881 F.2d at 161 (noting that "deference

is not appropriate when the Board deviates from its own

regulations"); see also Hall v. Schweiker, 660 F.2d 116, 119 (5th

Cir.1981) (reversal of agency decision mandated when an agency

violates its internal procedural rules and prejudice results). 

5

authority of LHWCA § 21(c).3

II

ANALYSIS

Our review in appeals from LHWCA decisions of the BRB is

typically limited to "considering errors of law and making certain

that the Board has adhered to its statutory standard of review for

factual determinations."4 The questions presented by the instant

appeal, however, exclusively comprise issues of construction of the

regulations governing appellate proceedings before the BRB under

the LHWCA, not construction of the Federal Rules of Appellate

Procedure (FRAP). Thus, even though the BRB's interpretation of

the LHWCA would normally merit no special deference, the BRB's

interpretation of its own rules and regulations do deserve judicial

deference so long as the BRB remains consistent and does not

deviate from them.5

The statute governing appeals to the BRB, LHWCA § 21(a),

provides a thirty day period during which appeals may be filed

before a decision of an ALJ or deputy commissioner will be
 

633 U.S.C. § 921(a); see also 20 C.F.R. § 802.205(a)

(reiterating thirty day period for filing of notice of appeal). 

 

7Tideland Welding, 881 F.2d at 159; 20 C.F.R. § 802.205(c).

6

considered final.6 As this statute imposes a jurisdictional

requirement, any untimely appeal must be summarily dismissed, and

no equitable relief is permitted.7 Pursuant to LHWCA section

21(a), the BRB has promulgated regulations detailing the effect of

a motion for ALJ reconsideration on the time for filing an appeal

to the BRB.

Initially, 20 C.F.R. § 802.206(a) directs that "[a] timely

motion for reconsideration ... shall suspend the running of the

time for filing a notice of appeal." More importantly, 20 C.F.R.

§ 802.206(f) states:

If a timely motion for reconsideration of a decision or order

of an administrative law judge or deputy commissioner is

filed, any appeal to the Board, whether filed prior to or

subsequent to the filing of the timely motion for

reconsideration, shall be dismissed without prejudice as

premature. Following decision by the administrative law judge

or deputy commissioner pursuant to either (d) or (e) of this

section, a new notice of appeal shall be filed with the Clerk

of the Board by any party who wishes to appeal. During the

pendency of an appeal to the Board, any party having knowledge

that a motion for reconsideration of a decision or order of an

administrative law judge or deputy commissioner has been filed

shall notify the Board of such filing.

20 C.F.R. § 802.206(d), in turn, provides:

If a motion for reconsideration is granted, the full time for

filing an appeal commences on the date the subsequent decision

or order on reconsideration is filed as provided in § 802.205.

Finally, 20 C.F.R. § 802.205(a) provides that:
 

8See 20 C.F.R. § 802.206(f). 

 

9See 20 C.F.R. § 802.206(a), (d), (e) & (f). 

 

10See 20 C.F.R. §§ 802.205(a) and 802.206(d), (e) & (f). 

 

11881 F.2d at 160-61. 

7

A notice of appeal, other than a cross-appeal, must be filed

within 30 days from the date upon which a decision or order

has been filed in the office of the Deputy Commissioner....

To synthesize these interlocking regulations, then, when a

motion for reconsideration is filed by any party, a previously

filed notice of appeal is nullified ipso facto.8 Any party who

still desires review before the BRB, whether he be a party who has

previously filed a notice of appeal or a newly aggrieved party,

must wait until the motion for reconsideration has been resolved.9

Once the ALJ or deputy commissioner has filed his order or decision

on the reconsideration motion, the would-be appellant—old or

new—then has thirty more days to file a notice of appeal (a new one

if a previously filed notice of appeal had been nullified by the

filing of the motion for reconsideration).10

In Tideland Welding, we applied an almost identical former

version of section 802.206(f) and reversed a decision of the BRB.

We so ruled because the BRB had failed to dismiss as premature an

insurer's appeal filed prior to the timely filing by two claimants

of a motion for reconsideration; and we did so regardless of the

fact that the subject motion was eventually withdrawn.11 Other

courts have been no less firm in requiring strict adherence to
 

12See Harmar Coal Co. v. Director, Office of Workers'

Compensation Programs, 926 F.2d 302 (3rd Cir.1991) (vacating

Board's decision under section 802.206(f) where two parties' appeal

to the Board was filed simultaneously with timely motion for

reconsideration, motion remained pending before a deputy

commissioner, and parties never filed new notice of appeal); and

Jones v. Illinois Cent. Gulf R.R., 846 F.2d 1099, 1103 (7th

Cir.1988) (upholding Board's denial of claimant's appeal as

premature under section 802.206(f) where claimant failed to file

new notice of appeal with the Board following an ALJ's order

denying her motion for reconsideration). 

 

13See Duncanson-Harrelson Co. v. Director, Office of Workers'

Compensation Programs, 644 F.2d 827, 832 (9th Cir.1981); General

Dynamics Corp. v. Sacchetti, 681 F.2d 37, 40 (1st Cir.1981). 

8

section 802.206(f).12

Based on its own procedural rules and this court's decision in

Tideland Welding, the BRB dismissed Aetna's September 14th appeal

because it had been filed while the Director's August 22nd Motion

for Reconsideration was pending before the new ALJ. Aetna

challenges this apparently unremarkable decision on three primary

grounds, each of which we consider in turn.

1. The Fortuitous Copy

At the outset, Aetna contends that the BRB's September 27,

1994 receipt of the extra photocopy of Aetna's original Notice of

Appeal, intended for the New Orleans District Director of the OWCP,

constituted a timely "re-filing" of this Notice of Appeal, thereby

satisfying the requirements of section 802.206(f). This

imaginative argument, we note, was not raised before the BRB but

has now been raised for the first time in this appeal. The

argument should therefore be deemed waived.13 Even were we not to
 

14See 20 C.F.R. §§ 802.206(d) & 802.205(a). 

 

15See id. (emphasis added). 

9

disregard the argument as having thus been waived, however, it

would still fail for two equally compelling reasons.

First, as both Respondents point out, the 30-day period

during which Aetna could have filed its "new notice of appeal"

pursuant to section 802.206(f) did not commence until the new ALJ's

Decision and Order on Motion for Reconsideration was actually filed

by the District Director and mailed to the parties—on September 28,

1994.14 Any "re-filing" purportedly accomplished by Aetna before

this date, even if only one day earlier, could have no effect.

Additionally, even though Aetna notes that the BRB received the

extra copy of the Notice of Appeal after the new ALJ apparently

dated his Decision and Order on Motion for Reconsideration, the

governing regulations clearly specify the triggering date of the

thirty day appeal period in these circumstances as "the date the

subsequent decision or order on reconsideration is filed ... [in

the office of the Deputy Commissioner]."15 Thus, the fact that the

new ALJ rendered his Decision and Order on Motion for

Reconsideration prior to the BRB's accidental receipt of the copy

intended for the District Director is immaterial under the

regulations.

Even were we to consider the Board's receipt of the copy of

Aetna's Notice of Appeal to have occurred within the temporal
 

16See 20 C.F.R. 802.208(b) & (c). 

10

bounds of sections 802.205(a) and 802.206(d) & (f), we still could

not condone treating the accidental receipt of a misaddressed

photocopy of an initially filed and subsequently voided notice of

appeal as a "new notice of appeal" for the purposes of 802.206(f).

To do so would be to give the same effect to such an errant and

inadvertent photocopy of an otherwise void notice of appeal as we

give to one that is valid and timely filed. That would constitute

a stretch of such proportion as to be unreasonable at best.

In any event, section 802.206(f) does not require that there

be a "re-filing" of a premature appeal after disposition of a

motion for reconsideration, but rather that "a new notice of appeal

shall be filed ... by any party who wishes to appeal" the result of

the ALJ proceedings. We speculate that, given the liberal rules

governing what will suffice to constitute an effective notice of

appeal to the BRB,16 minor alterations of an earlier notice—or

perhaps even changes of the date of an attached cover letter or

certificate of service—might well be treated as a "new" notice of

appeal within the meaning of section 802.206(f). In some limited

circumstances—as, for example, when the appellant is an

unrepresented party—even a mere new mailing to the BRB of

additional copies of an unchanged original notice might be

considered as satisfying section 802.206(f), assuming that,

subsequent to the ALJ's disposition on reconsideration, an intent
11

to file the notice anew is clearly manifested. As the record of

this proceeding reflects, however, none of these variations were

present here. Simply put, we would be overreaching to excess if we

were to allow the serendipitous appearance of a misdirected copy of

Aetna's original Notice of Appeal to satisfy the "new notice of

appeal" requirement of section 802.206(f).

2. A "Real" Motion for Reconsideration

The second of Aetna's principal arguments constitutes an

attempt to evade the requirements of section of 802.206(f) and the

clear holding of Tideland Welding by contending that the Director's

August 22, 1994 Motion for Reconsideration in Part was not a "real"

Motion for Reconsideration within the meaning of section

802.206(f). Instead, claims Aetna, that motion should be regarded

merely as a motion for clarification. To buttress its argument,

Aetna asserts that the motion did not address the principal issues

in the case and also notes that no party opposed the motion.

But the Director's Motion for Reconsideration in Part did in

fact address a significant and substantive provision of the ALJ's

original order. Indeed, the question whether an employer is liable

for current and future benefits due to a claimant can hardly be

said to constitute a clerical or computational oversight of the

kind properly addressed by a motion for clarification under
 

17Compare Grimmett v. Director, Office of Workers' Compensation

Programs, 826 F.2d 1015, 1017-18 (11th Cir.1987) (holding that

omission of portion of ALJ's order which explained why medical

evidence rebutted interim presumption of total disability was not

mere clerical error so that 30 day limitations period for filing

appeal did not begin to run until original order was amended), with

Graham-Stevenson v. Frigitemp Marine Div., 13 Ben.Rev.Bd.Serv. 558,

559 (1981) (holding that ALJ's failure to multiply dollar amount of

miner's weekly compensation rate by appropriate percentage

constituted "oversight" or "omission" within Fed.R.Civ.P. 60(a) and

thus did not suspend the appeals period until ALJ issued sua sponte

correction). 

 

18See 881 F.2d at 161 ("Although the regulation does not

address the result when a legitimate motion for reconsideration is

withdrawn, as compared to a motion granted or dismissed by the ALJ,

we find the distinction between a withdrawn and a dismissed motion

inapposite in this situation."). 

12

Fed.R.Civ.P. 60(a).17 Furthermore, even if they engender some

appeal on grounds of fairness or equity, the facts that the

Director's Motion for Reconsideration In Part (1) addressed issues

different from those identified in Aetna's appeal, and (2) went

unopposed by all parties, including the employer, ultimately prove

to be immaterial. In Tideland Welding, the claimants' motion for

reconsideration, which triggered the application of section

802.206(f)'s predecessor, was also unrelated to the issues raised

by the insurer's appeal and, furthermore, was eventually withdrawn

on the claimants' own motion. Yet neither of these facts obviated

the need for all appealing parties, if they still desired review by

the BRB, to submit new notices of appeal after the motion for

reconsideration had been resolved.18 A fortiori, in this

proceeding, in which the Director's substantive motion for
13

reconsideration, although unopposed, was never withdrawn but in

fact was granted by the ALJ, no party can be excused from failing

to comply with the limitation period imposed by section 802.206(f).

Finally, we must harbor some concern for certainty and

predictability. If we were to agree with Aetna's contention and

allow the BRB to treat some motions for reconsideration as being

governed by section 802.206(f) while disregarding others, we might

undermine any certainty that the parties could otherwise have

regarding the effect of a pleading entitled "Motion for

Reconsideration" on the time for filing an appeal. Such

uncertainty would, at best, lead to many duplicative appeals being

filed by parties seeking to ensure compliance with the rules, and

would, at worst, burden the BRB and the courts with wasteful

litigation over which motions do or do not fit within the rule.

3. The Timing of the BRB's Dismissal

Aetna's third major theory can be disposed of with even

greater dispatch. In essence, Aetna urges that section 802.206(f)

should not be applied when the BRB does not dismiss an appeal until

after an ALJ has disposed of a motion for reconsideration.

Instead, urges Aetna, an appeal should be treated as having "become

ripe" when the ALJ takes such action if the appeal has not already

been dismissed. Aetna perceives support for this proposition in

the language of section 802.206(f), which directs that, subsequent

to the filing of a timely motion for reconsideration, any appeal

"shall be dismissed without prejudice." This argument fails for
 

19881 F.2d at 159. 

 

20See Illinois Central Gulf, 846 F.2d at 1102. 

14

two reasons. First, Aetna is again unable to distinguish Tideland

Welding, in which we dismissed an insurer's appeal that was

followed by a timely (albeit eventually withdrawn) motion for

reconsideration, even though the BRB did not at any time dismiss

the insurer's appeal.19 Second, Aetna's preoccupation with the

phrase "without prejudice" misses the point. Here, just as in

Tideland Welding, the BRB's dismissal of Aetna's appeal as

premature was effectively "without prejudice" in that the dismissal

itself had no negative effect on Aetna's right to obtain judicial

review. The prejudice that was suffered by Aetna—namely, the loss

of its right to appeal—was the result of Aetna's own failure timely

to file a new notice of appeal after the ALJ's disposition of the

Director's Motion for Reconsideration, as expressly required by the

regulation. Such prejudice was not the result of the BRB's

dismissal.

4. Equitable and Policy Considerations

As a final matter, we do acknowledge that the preclusion of

review that resulted from the BRB's dismissal of Aetna's appeal

does not seem to serve the policy rationale of section 802.206(f)

of avoiding unnecessary review by the BRB or presenting the BRB

with reasons for a decision different from or in addition to those

reflected in the original order.20 This is particularly true when,
 

21881 F.2d at 159 (citing Townsend v. Director, Office of

Worker's Compensation Programs, 743 F.2d 880 (11th Cir.1984)). 

 

22459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). Griggs,

however, has been partially overruled by the 1993 amendment of

Fed.R.App.P. 4(a)(4). See Burt v. Ware, 14 F.3d 256, 258 (5th

Cir.1994); Hatfield v. Board of County Commissioners for Converse

County, 52 F.3d 858, 861 nn. 1-2 (10th Cir.1995). 

15

as was the case here, all parties were aware that Aetna wanted

review and that the ALJ did not alter, or would not have altered,

the original decision in any respect relevant to Aetna's intended

appeal. Yet, as we observed in Tideland Welding, the LHWCA's

limitations period for appeals is "jurisdictional and there is no

equitable relief available if a party fails to object within the

prescribed time period."21 Moreover, our inclination to uphold the

BRB's adherence to a "bright line" rule is supported by the Supreme

Court's historical fidelity to an analogously strict interpretation

of the pre-1993 amendment version of Fed.R.App.P. 4(a)(4). This is

exemplified in Griggs v. Provident Consumer Discount Company,22

wherein the Court held that a federal court of appeals lacked

jurisdiction because a defendant's notice of appeal which had been

filed during the pendency of a post-decision motion to alter or

amend the judgment and was premature and therefore without effect

under the old version of Rule 4(a)(4). This was so, indicated the

Court, even though it was evident to all concerned that the

defendant still desired appellate review of the district court
 

23459 U.S. at 61, 103 S.Ct. at 403-04. 

 

24See Fed.R.App.Proc. 4(a)(4) Advisory Committee Note to

Paragraph 4(a)(4), 1993 Amendment; Burt, 14 F.3d at 259 (reviewing

policy considerations that provoked 1993 amendment of Rule

4(a)(4)). 

16

judgment.23 The BRB's regulations, establishing the same rule

concerning motions for reconsideration before an ALJ as old Rule

4(a)(4) had established for post-decision motions before district

courts, are no less imperative and jurisdictional. Even though the

BRB's regulations doubtlessly create the same kind of "trap for an

unsuspecting litigant" that motivated the Supreme Court to amend

Rule 4(a)(4),24 revision of the BRB's appellate regulations are not

and should not be the province of this court, no matter how arcane

or anachronistic those regulations might appear to be.

CONCLUSION

Even with these final considerations in mind, we are

constrained to conclude that the BRB properly dismissed Aetna's

appeal of the new ALJ's Order and Decision of August 16, 1994, as

premature under 20 C.F.R. § 802.206. Accordingly, the Board's

decision is

AFFIRMED.