Allen B. Flores v. Pacific Crane Maintenance Company, L.P. (Board decision, July 27, 2021)

BRB interlocutory order. This unpublished order is not precedent. The Benefits Review Board affirmed an administrative law judge's decision to hold Allen Flores's modification request while his earlier appeal remained pending in the Ninth Circuit, and dismissed this appeal. The modification request remains pending. A final Board decision ordinarily becomes final 60 days after issuance absent timely judicial review or reconsideration under 20 C.F.R. § 802.406; a party may request Board reconsideration within 30 days under § 802.407.

Plain-English summary

Allen Flores, representing himself, sought to modify an earlier denial of Longshore Act benefits while his appeal of that denial was pending in the Ninth Circuit. An administrative law judge suspended action on the modification request until the court appeal was resolved or stayed, then denied Flores's request to reconsider that suspension. The Board held that the judge correctly identified the court as the body with jurisdiction during the appeal. It affirmed the suspension order and dismissed Flores's Board appeal without deciding the merits of his modification request. The judge may address the request after the court decides the appeal or stays it for that purpose.

Decision snapshot

• Authority: Court review under 33 U.S.C. § 921(c) and modification under 33 U.S.C. § 922.
• Outcome: Suspension order affirmed and Board appeal dismissed; modification remains pending.
• Key point: A pending court appeal prevented the administrative law judge from acting on the modification request until the court resolved or stayed the appeal.

Full text (DOL BRB public release)

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

BRB No. 21-0356

ALLEN B. FLORES
)
)
Claimant-Petitioner
)
)
v. )
)
PACIFIC CRANE MAINTENANCE
)
COMPANY, L.P.
)
)
and
) DATE ISSUED: 07/27/2021
)
SIGNAL MUTUAL INDEMNITY
)
ASSOCIATION, LIMITED
)
)
Employer/Carrier-
)
Respondents
)
)
ILWU-PMA WELFARE PLAN
)
)
Intervenor
) ORDER

Claimant, who is without legal representation, appeals Administrative Law Judge Richard M. Clark’s Order Regarding Request for Modification Proceedings and Order Regarding Motion for Reconsideration and Request for Judicial Notice (2017-LHC- 00773). Employer has not responded to Claimant’s appeal.

This case has previously been before the Benefits Review Board. The Board affirmed the administrative law judge’s Decision and Order Denying Benefits for Claimant’s alleged cumulative trauma orthopedic injuries and lung conditions. Flores v. Pacific Crane Maint. Co., L.P., BRB No. 19-0386 (Jan. 14, 2020) (unpub.), recon. denied, Mar. 13, 2020). Claimant appealed the Board’s decision to the United States Court of Appeals for the Ninth Circuit; that appeal remains pending (Docket No. 20-71297).
Claimant also filed a motion for modification under Section 22 of the Act, 33 U.S.C.
§922, with the Board, which the Board denied because it is not authorized to address motions for modification in the first instance. The Board advised that Claimant should initiate his motion for modification with the district director. Flores v. Pacific Crane Maint. Co., L.P., BRB No. 19-0386 (May 27, 2020) (Order). The Board subsequently denied as moot Claimant’s motion for reconsideration of the Board’s Order denying Claimant’s motion for modification, as Claimant informed the Board he had filed a motion for modification with the administrative law judge based on the advice of the Office of Workers’ Compensation Programs. Flores v. Pacific Crane Maint. Co., L.P., BRB No. 19- 0386 (July 30, 2020) (Order).

On October 2, 2020, the administrative law judge issued an order suspending his taking any action on Claimant’s motion for modification while Claimant’s appeal remains pending before the Ninth Circuit. Claimant filed a motion for reconsideration of the administrative law judge’s Order and further requested the administrative law judge take judicial notice of a stay that the Ninth Circuit granted in his appeal on the basis of his pending motions before the Board. The administrative law judge denied Claimant’s motion for reconsideration and also declined to give effect to the Ninth Circuit’s stay because the basis for the stay was already resolved by virtue of the Board’s July 30, 2020 Order.1 The administrative law judge further clarified that Claimant’s motion for modification remains pending before the Office of Administrative Law Judges (OALJ) but noted it will not be acted upon until the Ninth Circuit either decides Claimant’s pending appeal or issues a stay of the appeal pending the OALJ’s resolution of Claimant’s motion for modification.

Claimant now appeals the administrative law judge’s Order denying his motion for reconsideration. The administrative law judge correctly stated that jurisdiction of Claimant’s case remains only with the Ninth Circuit while his appeal is pending there, 33 U.S.C. §921(c), and any relief can be granted only by that court, i.e., Claimant may seek a stay of his appeal before the Ninth Circuit in order to proceed with his motion for modification before the OALJ. Alternatively, the OALJ will address Claimant’s motion for modification once the Ninth Circuit issues a decision on Claimant’s appeal.

1
The Ninth Circuit lifted the stay on April 16, 2021.

2
Accordingly, we affirm the administrative law judge’s Order Regarding Request for Modification Proceedings and Order Regarding Motion for Reconsideration and Request for Judicial Notice, and dismiss Claimant’s appeal.2

SO ORDERED.

JUDITH S. BOGGS, Chief
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge

DANIEL T. GRESH
Administrative Appeals Judge

2
Thus, we decline to address Claimant’s contentions in support of his motion for modification.