Anthony T. Taft v. Lockheed Martin Corporation and ACE American Insurance Company (Board decision, May 21, 2018)

BRB interlocutory order. This unpublished decision is not precedent. Employer reconsideration motion denied; claimant appeal remains pending. A final Board decision ordinarily becomes final 60 days after issuance unless a timely petition for judicial review or Board reconsideration is filed under 20 C.F.R. § 802.406. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Lockheed Martin sought full Board reconsideration after its appeal of an administrative judge's decision was dismissed as premature. The Board held that a timely motion for reconsideration before the judge made the employer's appeal premature. The employer had not filed a new appeal after the judge ruled. The Board denied reconsideration; a separate claimant appeal remained pending.

Decision snapshot

• Authority: 20 C.F.R. §§ 802.206, 802.407.
• Outcome: Employer reconsideration motion denied; claimant appeal remains pending.
• Key point: A new appeal was required after the judge decided the timely reconsideration request.

Full text (DOL BRB public release)

U.S. Department of Labor
Benefits Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

BRB Nos. 17-0618 and 17-0618A

ANTHONY T. TAFT
)
)
Claimant-Respondent
)
Cross-Petitioner
)
)
v. )
)
LOCKHEED MARTIN CORPORATION
)
)
and
) DATE ISSUED: May 21, 2018
)
ACE AMERICAN INSURANCE
)
COMPANY
)
)
Employer/Carrier-
) ORDER on MOTION
Petitioners
) for RECONSIDERATION
Cross-Respondents
) EN BANC

Employer has filed a timely motion for reconsideration en banc of the Board’s Order dismissing the appeals in this case, Taft v. Lockheed Martin Corp., BRB Nos. 17-0618/A (Feb. 13, 2018). 33 U.S.C. §921(b)(5); 20 C.F.R. §802.407. Claimant responds, urging the Board to deny employer’s motion and to affirm the Order. We deny employer’s motion.

Employer contends the Board erred in dismissing its timely- filed appeal because its motion for reconsideration of the administrative law judge’s decision was not timely filed. We reject employer’s contention for the reasons set forth in the Board’s Order in this case. The Board explained that employer’s extension request filed on the 10th day after the underlying decision was filed by the district director and the subsequent filing of a substantive motion for reconsideration, which the administrative law judge addressed on the merits, constituted a timely motion for reconsideration under 20 C.F.R. §802.206(b)(1). Taft, slip op. at 3. In light of the timely- filed motion for reconsideration, any pending appeals had to be dismissed as premature pursuant to Section 802.206(f) of the Board’s Rules of Practice and Procedure, 20 C.F.R. §802.206(f). As employer did not file a notice of appeal after the administrative law judge’s denial of reconsideration,1 the time for appealing the administrative law judge’s decision expired.2

Accordingly, employer’s motion for reconsideration en banc is denied. 20 C.F.R.
§802.409.

SO ORDERED.

_______
BETTY JEAN HALL, Chief
Administrative Appeals Judge

_______
JUDITH S. BOGGS
Administrative Appeals Judge

_______
GREG J. BUZZARD
Administrative Appeals Judge

_______
RYAN GILLIGAN
Administrative Appeals Judge

_______
JONATHAN ROLFE
Administrative Appeals Judge

1 Claimant filed a timely appeal following the administrative law judge’s denial of reconsideration, BRB No. 18-0006, and that appeal remains pending.
2 We reject employer’s assertion that the Board’s dismissal of its appeal denies it due process. The requirement that a prematurely- filed appeal be dismissed and the right to file a new appeal after an administrative law judge issues a decision on reconsideration are well-established procedures under the Act. See Aetna Casualty & Surety Co. v. Director, OWCP [Jourdan], 97 F.3d 815, 30 BRBS 81(CRT) (5th Cir. 1996); Tideland Welding Service v. Sawyer, 881 F.2d 157, 22 BRBS 122(CRT) (5th Cir. 1989), cert. denied, 495 U.S. 904 (1990); 20 C.F.R. §802.206(f). Any loss of employer’s rights in this case was due to its failure to file a new appeal after the administrative law judge ruled on its motion for reconsideration. Jourdan, 97 F.3d at 821, 30 BRBS at 86(CRT); 20 C.F.R.
§802.206(d), (e).
2