JACKSONVILLE SHIPYARDS, INC., AND AETNA CASUALTY AND SURETY COMPANY, PETITIONERS,

v.

ESTATE OF EDWARD J. VERDERANE, AND THE DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, RESPONDENTS; JACKSONVILLE SHIPYARDS, INC., AND AETNA CASUALTY AND SURETY COMPANY, RESPONDENTS, V. ESTATE OF EDWARD J. VERDERANE, AND THE DIRECTOR, WORKERS' COMPENSATION PROGRAMS, PETITIONERS

11th Cir. | 1984-04-09

Nos. 81-5696, 81-5757

729 F.2d 726 Court of Appeals for the Eleventh Circuit (1984) Positive Treatment

Cited by 9 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Holding

A petition to review a Benefits Review Board order that determines liability but remands for recalculation of an award is not an appealable final order under the Act.

Facts & Procedural History

Jacksonville Shipyards and the Estate of Edward Verderane petitioned for review of a Benefits Review Board order. The Board affirmed an administrative…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

Topics

Benefits Review Board Finality Of Orders Administrative Law Judge Longshoremen'S And Harbor Workers' Compensation Act

Explore caselaw by topic → Browse Benefits Review Board cases and more on FLexlaw

Opinion of the Court

PER CURIAM:

Jacksonville Shipyards and the Estate of Edward Verderane each petitioned this court to review an order entered by the Benefits Review Board of the United States Department of Labor. The Board, by its order, affirmed an administrative law judge’s finding that Verderane was entitled to disability benefits under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950 (1976) (the Act). However, because it disagreed with the method used by the AU to calculate the statutory adjustments to Verderane’s compensation rate, the Board vacated the AU’s award of benefits and remanded for recomputation of the award.

After this court granted the petitions for review, the Director of the Office of Workers’ Compensation Programs, United States Department of Labor, moved this court to dismiss the consolidated appeal on the ground that no appealable final order had been entered by the Benefits Review Board. We agree with the Director and therefore dismiss the petitions for review.

Under section 21(c) of the Act, 33 U.S.C. § 921(c):

Any person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred, by filing in such court within sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside.

Without exception, this circuit has held that section 21(c) requires the Board’s order to be final1 and does not provide for review of a Board order that remands the case to an AU for further findings on a claimant’s award of benefits. See, e.g., United Fruit Co. v. Director, Office of Workers’ Compensation Programs, 546 F. 2d 1224, 1225 (5th Cir.1977); Gulfport Shipbuilding Corp. v. Vallot, 334 F. 2d 358, 360 (5th Cir.1964), cert. denied, 380 U.S. 974, 85 S.Ct. 1333, 14 L.Ed.2d 269 (1965). In fact, no circuit has reached a contrary conclusion on the issue. See Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F. 2d 399 (5th Cir.1984) (en banc) (collecting cases); Sun Shipbuilding & Dry Dock Co. v. Benefits Review Board, 535 F. 2d 758 (3d Cir.1976).

Following, as we must, the precedent in this circuit, we hold that a petition to review a Benefits Review Board order that determines liability but remands to an AU for recalculation of the award is not an appealable final order under section 21(c) of the Act.2 Accordingly, the petitions for review are

DISMISSED.

. Generally, a judgment or order is not final for purposes of appellate review unless the decision "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978), (quoting, Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)).

. We emphasize that our disposition of this petition for review does not call into question those exceptional cases in which appealable finality has been accorded even though the judgment or order sought to be reviewed did not completely terminate the litigation. See Huckeby v. Frozen Food Express, 555 F. 2d 542, 547-49 (5th Cir.1977) (certain narrow exceptions to rule of appealable finality recognized "where there is ‘an order, otherwise nonappealable, determining substantial rights of the parties which will be irreparably lost if review is delayed until final judgment____”’) (emphasis in original) (citation omitted).

The petition for review in this case, arising as it does under section 21(c) of the Longshoremen's and Harbor Workers’ Compensation Act, does not present such an exceptional situation. Therefore, the well-established requirement of appealable finality stands as a bar to our review of the Board's order.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Verderane v. Jacksonville Shipyards, Inc., 772 F.2d 775 (11th Cir. 1985)

…not been raised in a timely fashion. Both employer and claimant then filed petitions for review, which were consolidated. This Court dismissed the petitions for review because they were not final. Jacksonville Shipyards, Inc. v. Estate of Verderane, 729 F. 2d 726 (11th Cir.1984). Based on an intervening United States Supreme Court opinion clarifying the scope of section 2(3), the Director, OWCP, then moved the Board to vacate its 1981 decision and to reinstate AU Kim-ball’s 1976 decision awarding coverage. T…
Ortho Pharm. Corp. & Johnson & Johnson (Hong Kong) Ltd. v. Sona Distribs. & Elmcrest Trading, Ltd., 847 F.2d 1512 (11th Cir. 1988)

…concludes the litigation on the merits; the trial court has no more to do but execute the judgment. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); Jacksonville Shipyards, Inc. v. Estate of Verderane, 729 F. 2d 726, 727 n. 1 (11th Cir.1984). The order under appeal is clearly outside the ambit of section 1291: at the time the order issued, the case was still pending before the district court and had not even gone to trial. Appellants urge that the district cou…
Ila Redden (widow of Ray Redden) v. Dir., Off. of Workers' Comp. Programs, United States Dep't of Labor, 825 F.2d 337 (11th Cir. 1987)

…nly when there is “a final order of the Board.” 33 U.S.C. § 921(c); see 30 U.S.C. § 932(a). This Court has held “a Board order that remands a case to an AU for further findings” is not reviewable. Jacksonville Shipyards, Inc. v. Estate of Verderane, 729 F. 2d 726, 727 (11th Cir.1984). The order of the Board in this case neither fixes Mulga’s ultimate liability for Redden’s benefits, nor Redden’s right to benefits from Mulga in the first instance. It is, therefore, not a final order, even though a decision o…

Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Coopers & Lybrand v. Livesay, 437 U.S. 463 (U.S. 1978)
Catlin v. United States, 324 U.S. 229 (U.S. 1945)
Huckeby v. Frozen Food Express, 555 F.2d 542 (5th Cir. 1977)
Newpark Shipbuilding & Repair v. Roundtree, 723 F.2d 399 (5th Cir. 1984)
SUN Shipbuilding & DRY Dock Co. v. Benefits Review Bd., 535 F.2d 758 (3d Cir. 1976)
United Fruit Co. v. Dir., Off. OF Workers' Comp. Programs, United States Dep't OF Labor & Herman G. Hoff, 546 F.2d 1224 (5th Cir. 1977)
Gulfport Shipbuilding Corp. v. Vallot, 380 U.S. 974 (U.S. 1965)
Sams v. United States, 380 U.S. 974 (U.S. 1965)
Gulfport Shipbuilding Corp. & Tex. Emp'rs' Ins. Ass'n v. Maxime Vallot, 334 F.2d 358 (5th Cir. 1964)

Full citator, related cases, and AI research tools

Open in FLexlaw