UNITED STATES COURT OF APPEALS
For the Fifth Circuit
ANDREW T. GALLE, deceased,
Petitioner - Cross-Respondent,
DIRECTOR, OFFICE OF WORKERS' COMPENSATION
U.S. DEPARTMENT OF LABOR,
INGALLS SHIPBUILDING, INC.; AETNA CASUALTY
& SURETY COMPANY,
Respondents - Cross-Petitioners.
Petition for Review of an Order
of the Benefits Review Board
March 26, 2001
Before REAVLEY, SMITH, and DeMOSS, Circuit
DeMOSS, Circuit Judge:
The Court is asked to review final decisions
of the Benefits Review Board determining that Galle's notice of appeal
to the Board was timely and awarding a limited amount of compensation benefits
under the Longshore and Harbor Worker's Compensation Act ("LHWCA"), 33
U.S.C. § 901 et seq. Plaintiff Andrew T. Galle appeals the
Board's decision on the merits of his claim for disability benefits. Galle
argues that the Board properly held that his notice of appeal from the
ALJ's decision was timely, but that the Board erroneously limited his benefits
by finding only a permanent
partial disability, rather than a permanent
total disability, by excluding certain medical services, and by
refusing to award fees to Galle's representative. Defendant-employer Ingalls
Shipbuilding, Inc. ("Ingalls") and Aetna Casualty and Surety Company ("Aetna"),
which is Ingalls' LHWCA carrier, cross-appeal, arguing that the Board erroneously
determined that Galle's notice of appeal to the Board was timely, but that
the Board properly limited Galle's benefits. The Director of the Office
of Workers' Compensation Programs ("OWCP") filed a brief limited to the
question of whether Galle filed a timely notice of appeal to the Board.
The Director construes the relevant federal rules and regulations to require
the conclusion that Galle's notice of appeal was timely. We agree, and
affirm the Board's determination that Galle filed a timely appeal with
the Board. We likewise affirm the Board's decision on the merits of Galle's
claim for disability benefits.
In November 1984, Galle was injured on the
job when he tripped over debris left by other workers, and fell hard on
his knee and right shoulder. Galle filed this claim for compensation benefits
under the LHWCA in 1988. See 33 U.S.C. § 919. In June 1989,
the ALJ held an evidentiary hearing on Galle's claim. On March 23, 1990,
the ALJ issued a decision ordering Ingalls and Aetna to pay Galle temporary
total disability benefits from November 1984 until October 1985, and permanent
partial disability benefits from October 1985 forward. The ALJ excluded
benefits for certain medical expenses claimed by Galle, see 33 U.S.C.
§ 907, and ordered the defendants to pay certain penalties, see
33 U.S.C. § 914(e). The decision was filed in the deputy commissioner's
office on April 19, 1990. See 33 U.S.C. § 921 (a) (compensation
orders become effective when filed in the office of the deputy commissioner).
Galle moved for reconsideration, which was denied. See 20 C.F.R.
§ 802.206(b)(1) (permitting motions for reconsideration of an ALJ's
benefit determination). Galle filed a timely appeal to the Board.
20 C.F.R. § 802.205.
In July 1992, the Board affirmed the ALJ's
decision, as modified to include additional benefits for medical services.
On August 25, 1992, Galle moved for reconsideration of the Board's decision.
See 20 C.F.R. § 802.219(i). Shortly thereafter, in January
1993, Galle unexpectedly died. Galle's counsel withdrew and his widow,
Margaret Galle, continued as his "representative." In April 1993, Galle,
represented pro se by his widow, filed a second motion for reconsideration
of the Board's decision. In November 1993, the Board issued an order granting
Galle's motion for reconsideration in part by changing the date upon which
total temporary disability ended and permanent partial disability began
from October 1985 to June 18, 1987, thus affording Galle an additional
twenty months of benefits for total disability. In January 1994, Galle
filed a petition for review of the Board's decision with this Court, see
33 U.S.C. § 921(c), thus ending the first complete round of administrative
In January 1994, and while the petition for
review was pending in this Court, the defendants filed a motion to alter
or amend the November 12, 1993 Board decision. The defendants' motion was
based upon new information indicating that Galle may have sought pre-authorization
for certain medical services, as to which compensation had been denied
on the theory that he had not sought such pre-authorization. In October
1994, the Board granted that motion, remanding the case to the ALJ with
instructions to receive evidence on the pre-authorization issue and to
re-evaluate whether the challenged medical expenses were compensable on
the basis of that evidence. In November 1994, this Court dismissed the
pending petition for review on the basis of the Board's remand order. Between
February 1995 and November 1995, Galle filed several motions for reconsideration
of certain aspects of the Board's October 1994 remand order. In December
1995, the Board issued an order stating that no further filings would be
accepted by the Board because the case was on remand to the ALJ.
On remand, the ALJ received evidence on the
pre-authorization issue. On June 5, 1998, the ALJ issued an order expanding
the award in Galle's favor by including some of the previously excluded
medical expenses requested by Galle. Ingalls and Aetna were ordered to
pay interest on the additional amount. The ALJ also awarded Galle $220
for travel expenses associated with receiving medical care, and denied
Mrs. Galle's request for fees, which was based upon the premise that she
was Galle's legal representative. On June 19, 1998, the decision was filed
in the deputy commissioner's office.
On July 1, 1998, Galle filed a motion for
reconsideration of the June 19, 1998, decision. The LHWCA regulations recognizing
the right to file a motion for reconsideration of an ALJ's benefits determination
provide that the motion must be "filed not later than ten days from the
date the [ALJ's] decision or order was filed in the Office of the Deputy
Commissioner." 20 C.F.R. § 802.206(b)(1). The issue to be decided
in this case is whether parties should exclude or include weekends and
holidays when calculating that ten- day time period. Galle and the Director
maintain, and the Board held, that § 802.206(b)(1)'s ten-day time
period must be calculated with reference to Federal Rule of Civil Procedure
6(a), which excludes weekends and holidays from the time computation. The
parties agree that, if Rule 6(a) applies, Galle's motion for reconsideration
was timely because it was filed before Monday, July 3, 1998. The defendants
maintain that § 802.206(b)(1)'s ten-day time period must be calculated
with reference to 29 C.F.R. § 18.4, which requires that intervening
weekends and holidays be included in the time computation. The parties
agree that if § 18.4 applies, Galle's motion for reconsideration was
untimely because it was not filed on or before June 29, 1998.
The ALJ denied Galle's July 1, 1998 motion
for reconsideration on August 20, 1998. In the course of that denial, the
ALJ stated that the motion was filed two days late, accepting the defendants'
position that § 802.206(b)(1) required that the motion be filed on
or before June 29, 1998. The ALJ nonetheless addressed the merits of Galle's
motion for reconsideration, stating that Galle's pro se status entitled
him to some leniency in application of the controlling time period. The
ALJ's August 20, 1998 order denying Galle's July 1, 1998 motion for reconsideration
was filed in the deputy commissioner's office on August 28, 1998.
On September 21, 1998, Galle filed an appeal
of the ALJ's decisions on remand. A notice of appeal to the Board must
be filed within thirty days from the date on which an ALJ's decision or
order is filed in the office of the deputy commissioner. See 20
C.F.R. § 802.205. Failure to file within the proscribed period will
"foreclose all rights to review by the Board," and an untimely notice of
appeal will be summarily dismissed by the Board "for lack of jurisdiction."
Id. The thirty-day time period is suspended, however, during
the pendency of a timely filed motion for reconsideration of the ALJ's
decision. See 20 C.F.R. § 802.206(a). Galle's appeal to the
Board was filed more than one-hundred days after the ALJ's decision on
remand, but only twenty-four days after the ALJ's denial of his motion
for reconsideration. Thus, Galle's September 21, 1998 notice of appeal
to the Board was timely if and only if his July 1, 1998 motion for reconsideration
was also timely, and therefore effective to suspend the thirty-day time
period for filing an appeal.
On September 20, 1999, the Board affirmed
the ALJ's decisions on remand. Rather than to rely upon the ALJ's theory
that Galle was entitled to leniency in the application of the filing period,
however, the Board held that Galle's motion for reconsideration before
the ALJ, and thus, his appeal to the Board, was timely filed because the
ten-day time period in 20 C.F.R. § 802.206 must be calculated using
the computation method specified in Federal Rule of Civil Procedure 6(a).
The Board then affirmed the ALJ's disposition on the merits of Galle's
Galle moved for reconsideration of the Board's
order to the extent it affirmed the ALJ's decision on the merits of his
disability benefits claim, which the Board denied. See 20 C.F.R.
§ 802.219(i). Galle then filed a timely petition for review of the
Board's decision with this Court. See 33 U.S.C. § 921(c). The
defendants followed suit with a timely cross-appeal.
The case presents an important question of
first impression concerning the interplay of specific regulations and federal
rules when calculating the time period for filing a motion for reconsideration
of an Administrative Law Judge's benefit determination under the LHWCA.
We begin with an analysis of the potentially controlling provisions.
Department of Labor ("DOL") regulations governing
administrative review of LHWCA claims for compensation benefits are divided
into three regulatory parts defined by the pertinent level of administrative
review. The first set of regulations is found at 20 C.F.R. Part 702. These
regulations govern administration and procedure for LHWCA claims before
a district director. There is nothing in Part 702 recognizing any right
to request reconsideration of an ALJ's decision or order.
The second set of regulations is found at
29 C.F.R. Part 18. These regulations are captioned "Rules of Practice and
Procedure for Administrative Hearings before the Office of Administrative
Law Judges" ("the OALJ rules or regulations"). Section 18.1 defines the
scope of those rules as follows:
(a) General application. These rules of practice
are generally applicable to adjudicatory proceedings before the Office
of Administrative Law Judges, United States Department of Labor. Such proceedings
shall be conducted expeditiously and the parties shall make every effort
at each stage of a proceeding to avoid delay. To the extent that these
rules may be inconsistent with a rule of special application as provided
by statute, executive order, or regulation, the latter is controlling.
The Rules of Civil Procedure for the District Courts of the United States
shall be applied in any situation not provided for or controlled by these
rules, or by any statute, executive order or regulation.
(b) Waiver, modification, or suspension. Upon
notice to all parties, the administrative law judge may, with respect to
matters pending before him or her, modify or waive any rule herein upon
a determination that no party will be prejudiced and that the ends of justice
will be served thereby. These rules may, from time to time, be suspended,
modified or revoked in whole or part.
29 C.F.R. § 18.1. Section 18.4 provides
a method for computing time periods specified "under these rules." Section
18.4 provides, in relevant part:
a) Generally. In computing any period of time
under these rules or in an order issued hereunder the time begins with
the day following the act, event, or default, and includes the last day
of the period, unless it is a Saturday, Sunday or legal holiday observed
by the Federal Government in which case the time period includes the next
business day. When the period of time prescribed is seven (7) days or less,
intermediate Saturdays, Sundays, and holidays shall be excluded in the
(b) Date of entry of orders. In computing
any period of time involving the date of the entry of an order, the date
of entry shall be the date the order is served by the Chief Docket Clerk.
(c) Computation of time for delivery by mail.
(1) Documents are not deemed filed until received
by the Chief Clerk at the Office of Administrative Law Judges. However,
when documents are filed by mail, five (5) days shall be added to the prescribed
(2) Service of all documents other than complaints
is deemed effected at the time of mailing.
(3) Whenever a party has the right or is required
to take some action within a prescribed period after the service of a pleading,
notice, or other document upon said party, and the pleading, notice or
document is served upon said party by mail, five (5) days shall be added
to the prescribed period.
29 C.F.R. § 18.4. Section 18.4 adds five
days to a prescribed filing period whenever the party files by mail, §
18.4(c)(1), or the party is required to take action within a prescribed
period after receiving service by mail, § 18.4(c)(3). Significantly,
there is nothing in the OALJ rules set out in 29 C.F.R. Part 18 granting,
defining, or limiting any right to request reconsideration of an ALJ's
The third set of regulations is found at 20
C.F.R. Part 802. These regulations ("the Board rules") set out the rules
of practice and procedure governing the operation of the Benefits Review
Board, and apply "to all appeals taken by any party from decisions or orders"
relating to the entitlement to compensation or benefits under the LHWCA.
20 C.F.R. § 802.101(a). Section 802.205 sets out the requirement that
a notice of appeal to the Board be filed within thirty days after the ALJ's
decision or order is filed in the office of the deputy commissioner. As
set forth above, § 802.205 further provides that the Board has no
jurisdiction to consider an untimely appeal. See 20 C.F.R. §
802.205. Immediately following § 802.205 is § 802.206, the only
regulatory provision in the DOL scheme recognizing and defining the right
to seek reconsideration of an ALJ's decision. That provision, which is
captioned "[e]ffect of motion for reconsideration on time for appeal,"
provides, in relevant part:
(a) A timely motion for reconsideration of
a decision or order of an administrative law judge or deputy commissioner
shall suspend the running of the time for filing a notice of appeal.
(b)(1) In a case involving a claim filed under
the Longshore and Harbor Workers' Compensation Act or its extensions (see
§ 802.101(b)(1)-(5)), a timely motion for reconsideration for purposes
of paragraph (a) of this section is one which is filed not later than 10
days from the date the decision or order was filed in the Office of the
* * *
(c) If the motion for reconsideration is sent
by mail and the fixing of the date of delivery as the date of filing would
result in a loss or impairment of reconsideration rights, it will be considered
to have been filed as of the date of mailing. The date appearing on the
U.S. Postal Service postmark (when available and legible) shall be prima
facie evidence of the date of mailing. If there is no such postmark or
it is not legible, other evidence such as, but not limited to, certified
mail receipts, certificates of service and affidavits may also be used
to establish the mailing date.
20 C.F.R. § 802.206. We note that nothing
in § 802.206 provides that the time period for filing motions for
reconsideration is mandatory or that untimely motions will be summarily
dismissed. Cf. 20 C.F.R. § 802.205 (specifying that the time
period for appeal from the Board's decision is mandatory and jurisdictional).
To the contrary, subsection 802.206(c) provides that the date of mailing,
rather than the date of filing, may be used when the movant's reconsideration
rights would be otherwise impaired.
Section 802.221 sets out a computation of
time rule for those matters governed by the Board rules. The computation
of time rule set out in the Board rules is different from that set out
in the OALJ rules (29 C.F.R. Part 18). Section 802.221 provides:
(a) In computing any period of time prescribed
or allowed by these rules, by direction of the Board, or by any applicable
statute which does not provide otherwise, the day from which the designated
period of time begins to run shall not be included. The last day of the
period so computed shall be included, unless it is a Saturday, Sunday,
or legal holiday, in which event the period runs until the end of the next
day which is not a Saturday, Sunday, or legal holiday.
(b) Whenever a paper is served on the Board
or on any party by mail, paragraph (a) of this section will be deemed complied
with if the envelope containing the paper is postmarked by the U.S. Postal
Service within the time period allowed, computed as in paragraph (a) of
this section. If there is no such postmark, or it is not legible, other
evidence, such as, but not limited to, certified mail receipts, certificate
of service and affidavits, may be used to establish the mailing date.
(c) A waiver of the time limitations for filing
a paper, other than a notice of appeal, may be requested by proper motion
filed in accordance with §§ 802.217 and 802.219.
20 C.F.R. § 802.221. We note that §
802.221 recognizes a substantial amount of flexibility in filing periods.
Indeed, § 802.221 permits a motion requesting a waiver of any time
period, aside from that defining the time period for an appeal to the Board.
In sum, § 802.206 is the only DOL regulatory
provision recognizing the right to seek reconsideration of an ALJ's benefit
That right is inextricably intertwined with the timing for and a party's
right to seek further review by the Board. Both the OALJ rules found at
29 C.F.R. Part 18 and the Board rules found at 20 C.F.R. Part 802, specify
a method for computing the time for filing documents governed by those
rules. The computation rules, however, are different. The computation method
specified in § 18.4 of the OALJ rules requires that weekends and holidays
be included when the time period for filing is seven days or less. The
computation method specified in § 802.221 of the Board rules provides
for flexibility in the calculation of most time periods, but does not expressly
address whether weekends and holidays are included or excluded from the
calculation of filing periods specified in the Board rules. Having set
forth the potentially controlling regulatory provisions, we turn to an
analysis of whether the computation of time method specified in §
802.221 should be supplemented by Federal Rule of Civil Procedure 6(a).
The Federal Rules of Civil Procedure are generally
applicable to proceedings for the enforcement or review of LHWCA compensation
orders, except to the extent that procedural matters are provided for in
the Act. See Fed. R. Civ. P. 81(a)(6). Federal Rule of Civil Procedure
6(a) sets out the general method for calculating filing time when the rules
(a) Computation. In computing any period of
time prescribed or allowed by these rules, by the local rules of any district
court, by order of court, or by any applicable statute, the day of the
act, event, or default from which the designated period of time begins
to run shall not be included. The last day of the period so computed shall
be included, unless it is a Saturday, a Sunday, or a legal holiday, or,
when the act to be done is the filing of a paper in court, a day on which
weather or other conditions have made the office of the clerk of the district
court inaccessible, in which event the period runs until the end of the
next day which is not one of the aforementioned days. When the period of
time prescribed or allowed is less than 11 days, intermediate Saturdays,
Sundays, and legal holidays shall be excluded in the computation. As used
in this rule and in Rule 77(c), "legal holiday" includes New Year's Day,
Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day,
Christmas Day, and any other day appointed as a holiday by the President
or the Congress of the United States, or by the state in which the district
court is held.
Fed. R. Civ. P. 6(a). Neither the Act nor
the Board rules specify whether weekends and holidays should be included
or excluded when calculating the time period for filing a motion for reconsideration
of the ALJ's decision. Thus, Federal Rule of Civil Procedure 6(a) could
be used to supplement the computation of time rule found at 20 C.F.R. §
802.221. The OALJ rules, however, specify that holidays and weekends must
be included when the filing period is less than eleven days. Thus, Federal
Rule of Civil Procedure 6(a) is inconsistent with and cannot be used to
supplement that regulatory rule. The question then becomes whether §
18.4 of the OALJ rules or § 802.221 of the Board rules, as supplemented
by Federal Rule of Civil Procedure 6(a), provides the appropriate computation
of time rule for a motion for reconsideration.
Galle and the Director maintain, and the Board
held, that Federal Rule of Civil Procedure 6(a) provides the computation
of time rule when determining whether a motion for reconsideration of an
ALJ decision is timely. This position relies heavily upon the historical
relationship between motions for reconsideration of an ALJ's decision,
on the one hand, and motions to amend or alter a judgment pursuant to Federal
Rule of Civil Procedure 59(e), on the other.
Federal Rule of Civil Procedure 59(e) provides
that "any motion to alter or amend a judgment shall be filed no later than
10 days after entry of the judgment." Fed. R. Civ. P. 59(e). The filing
of a timely Rule 59(e) motion suspends the time period for filing an appeal
until there is a ruling on that motion. See Fed. R. App. P. 4(a);
see also Richardson v. Oldham, 12 F.3d 1373, 1377-78
(5th Cir. 1994). Moreover, it is well established that Federal
Rule of Civil Procedure 6(a) provides the rule for determining whether
a Rule 59(e) motion is timely filed. See, e.g., Vincent
v. Consolidated Operating Co., 17 F.3d 782, 785 n.11 (5th
Richardson, 12 F.3d at 1377 n.9.
Prior to the time that § 802.206 was
enacted, there were no statutory or regulatory provisions specific to the
LHWCA that permitted the filing of a motion for reconsideration of an ALJ's
decision. The Board filled that gap in its very first published decision,
by holding that Federal Rule of Civil Procedure 59(e) provides the authority
and procedure for the filing of a motion for reconsideration of an ALJ's
decision. See General Dynamics Corp. v. Hines, 1 B.R.B.S.
3, 5-7 (1974). In reaching that decision, the Board relied, as did the
Board in this case, upon Federal Rule of Civil Procedure 81(a)(6), together
with the absence of any statutory or regulatory provisions authorizing
or setting out the time period for the filing of such motions. See
id. The Board also relied upon the operation of Federal Rule
of Appellate Procedure 4(a) to hold in Hines that a timely
filed motion for reconsideration of the ALJ's decision would suspend the
time period for filing an appeal to the Board. Id. at 6.
Galle and the Director maintain that subsequent regulatory provisions permitting
motions for reconsideration (20 C.F.R. § 802.206(b)(1)) and specifying
a method for computing time periods set out in the Board rules (20 C.F.R.
§ 802.221) were derived from the Board's decision in Hines
and patterned after the analogous provisions of the Federal Rules of Civil
Procedure. See Sebben v. Director, OWCP, 10 B.R.B.S.
136 (1970) (noting that the recently passed computation of time rule in
20 C.F.R. Part 802 is "in conformity with rule 6(a)").
Galle and the Director also argue that the
Board's decision to apply Federal Rule of Civil Procedure 6(a) to the ten-day
time period set out in § 802.206(b)(1) is consistent with the purpose
and effect of the controlling statutes and regulations. Like most workers'
compensation schemes, the LHWCA represents a statutory compromise between
the interests of injured employees and potentially liable employers and
insurers. See, e.g., Ceres Gulf v. Cooper,
957 F.2d 1199, 1204 (5th Cir. 1992). The compromise is intended
to provide covered employees with a prompt and certain recovery. Id.
In exchange, employers and insurers enjoy substantial limitations upon
their potential liability. Id.
Galle and the Director argue that the purpose
of the regulatory provision permitting the filing of a motion for reconsideration
was to provide a mechanism for avoiding a time consuming appeal to the
Board, which in turn provides for an expeditious handling of compensation
claims, an important concept underlying the LHWCA's statutory scheme. At
the time Galle's claim was pending before the Board, an appeal to that
body might take several years to process. Galle's own case is illustrative.
Galle's first appeal to the Board was pending for more than two years before
any decision was reached. Galle's subsequent motion for reconsideration
required an additional year to process. Moreover, an additional four years
passed between the time that the defendants first moved to alter or amend
the Board's judgment and the time that the case was finally received for
re-evaluation by the ALJ pursuant to the Board's remand order. While a
small amount of this time is no doubt attributable to motions for reconsideration
filed by Galle, the fact is that this appeal was pending before the Board
for a length of time that seems inconsistent with the statutory purpose
of providing prompt and certain benefits.
Galle and the Director also argue that the
interest in promoting an expeditious handling of claims justifies a construction
of § 802.206(b)(1) (granting the right to seek reconsideration) that
does not unfairly constrict the right given. The controlling regulations
require that an ALJ's order be served upon the parties by mail. See
29 C.F.R. § 18.3(c). When the time period for mailing is considered,
parties are often left with only a very few days in which to seek reconsideration.
The Director maintains that parties are often foreclosed from filing any
such motion altogether. Once again, Galle's own case is illustrative. Galle
produced a post office receipt evidencing an attempted delivery of the
ALJ's order to Galle on June 29, 1998, the very day that the defendants
say Galle should have filed the motion for reconsideration. Thus, Galle
and the Director conclude that there are no inconsistent regulatory provisions
prohibiting the application of Federal Rule of Civil Procedure 6(a) to
the ten-day time period defined in 20 C.F.R. § 802.206(b)(1). See
Fed. R. Civ. P. 81(a)(6). Moreover, application of that rule is consistent
with the statutory and regulatory purpose of facilitating an expeditious
handling of LHWCA claims.
The defendants rely upon the OALJ rule found
at 29 C.F.R. § 18.4 to argue that Galle and the Director are ignoring
a more specific LHWCA regulation requiring that weekends and holidays be
excluded when calculating the ten-day filing period in 20 C.F.R. §
802.206(b)(1). The defendants' argument in this regard is premised almost
entirely upon that language in 29 C.F.R. § 18.1 providing that 29
C.F.R. Part 18 applies to all "adjudicatory proceedings before the Office
of Administrative Law Judges." The defendants note that § 18.4 is
similar, but not identical to Federal Rule of Civil Procedure 6(a). The
defendants maintain that the differences in those rules are no oversight,
but instead reflect a considered decision to narrow time periods of seven
days or more by including weekends and holidays in the calculation of those
The Board rejected the defendants' text-based
argument that 29 C.F.R. § 18.4 is necessarily applicable to the right
granted in 20 C.F.R. § 802.206(b)(1), a separate regulatory part.
The Board reasoned that 29 C.F.R. § 18.4 by its own terms, is applicable
only to those time periods defined "under these rules or in an order issued
hereunder." The Board reasoned that the regulatory reference in §
18.4 to time periods time specified "under these rules or in an order issued
hereunder" expressly limits the application of § 18.4 to those time
periods established or defined
by 29 C.F.R. Part 18 or contained in an ALJ's
order issued pursuant to the OALJ rules.
The Director argues in favor of the Board's
resolution of this issue. While neither the ALJ's nor the Board's legal
interpretation of the controlling regulations is entitled to deference,
see H.B. Zachary Co. v. Quinones, 206 F.3d 474, 478
(5th Cir. 2000), the Director's interpretation of the agency's
own regulations is controlling unless that interpretation is plainly erroneous
or inconsistent with the text of the relevant regulations. See Auer
v. Robbins, 117 S. Ct. 905, 911-12 (1997).; see also Ceres
Marine Terminal v. Hinton, __ F.3d __, 2001 WL 170653 at *2 (5th
Cir. 2001) ("The Director's interpretations of the Act and articulations
of administrative policy are accepted as controlling, unless they are unreasonable
readings of the statutory terms or contrary to clearly expressed legislative
intent on the point in issue.")
The regulation recognizing a right to seek
reconsideration from the ALJ is placed exclusively in 20 C.F.R. Part 802,
the set of regulations governing proceedings before the Board. Without
some sound justification, it is difficult to ignore the computation provision
located in Part 802 and jump to a functionally separate set of regulations
for a time computation provision. This is particularly true when, as here,
the separate set of regulations set forth in 29 C.F.R. Part 18 is facially
limited to the rules defined in that part. Moreover, the Director's position
that Federal Rule of Civil Procedure 6(a) may be used to supplement the
time computation provision set forth at 20 C.F.R. § 802.221 is consistent
with the statutory and regulatory purpose of providing for an expeditious
handling of LHWCA claims. We conclude that the Director's interpretation
of the relevant provisions is entitled to deference. Accordingly, we hold
that the ten-day time period for the filing of motions for reconsideration
of an ALJ's decision, as set forth in 20 C.F.R. § 802.206(b)(1), must
be calculated using the computation method set forth in Federal Rule of
Civil Procedure 6(a).
Federal Rule of Civil Procedure 6(a) requires
that weekends and holidays be excluded when calculating time periods of
less than eleven days. For that reason, Galle's July 1, 1998, motion for
reconsideration of the ALJ's decision filed June 19, 1998, was timely.
It follows that Galle's September 21, 1998, notice of appeal to the Board
was timely, and that the Board had jurisdiction to consider Galle's appeal.
Having established that the Board had jurisdiction to entertain Galle's
appeal, we proceed to consideration of the Board's disposition on the merits
of Galle's claim.
An ALJ's benefit determination is reviewed
using the substantial evidence rule. See Avondale Indus. v.
Pulliam, 137 F.3d 326, 328 (5th Cir. 1998). If
the ALJ's decision is free from legal error, then the Board must affirm
if there is substantial evidence in the record to support the ALJ's determination.
See 33 U.S.C. § 921(b)(3). "Substantial evidence is evidence
that a reasonable mind might accept as adequate to support a conclusion."
Pulliam, 137 F.3d at 328. This Court reviews the Board's
final decision for legal error and for confirmation that the Board adhered
to the substantial evidence standard of review applicable to the ALJ's
underlying decision. See Port Cooper/T. Smith Stevedoring
Co., Inc. v. Hunter, 227 F.3d 285, 287 (5th Cir. 2000);
137 F.3d at 328.
Galle raises a number of issues relating to
the Board's affirmance of the ALJ's decisions on the merits. Specifically,
Galle challenges: (1) the ALJ's determination that Galle did not suffer
from a permanent total disability because he could perform available alternative
work, and (2) the ALJ's determination that certain medical services were
not compensable. Galle also raises several arguments attacking the accuracy
or comprehensiveness of the ALJ's review of the record.
Having reviewed each of these arguments in
light of the parties' arguments and the record on appeal, we conclude that
the ALJ's factual determinations are supported by substantial evidence,
and that the decisions of the ALJ and the Board are free from legal error.
We therefore affirm the Board's final orders limiting Galle's disability
benefits to payment for permanent partial disability and excluding certain
Mrs. Galle also challenges the ALJ's determination
that she was not entitled to a "representative's" fee in addition to her
stake in the outcome of the case. We agree with the ALJ's holding that
non-attorneys proceeding pro se cannot receive attorney's fees under the
LHWCA. See Todd Shipyards Corp. v. Dir., OWCP, 545
F.2d 1176, 1181 (9th Cir. 1976) (examining statutory language framing the
availability of fees in terms of an attorney's services). We therefore
affirm the Board's order, which likewise affirmed the ALJ's determination
that Mrs. Galle is not entitled to a representative's fee, in addition
to her stake in the outcome.
The final decisions of the Benefits Review
Board are in all respects AFFIRMED.