United States Court of Appeals


Argued April 13, 2001 Decided June 19, 2001 

No. 00-1318

Florence Snowden, 


Director, Office of Workers' Compensation Programs, 
United States Department of Labor, et al., 

On Petition for Review of an Order of the 
Benefits Review Board

Richard W. Galiher, Jr. argued the cause and filed the 
briefs for petitioner.

Joshua T. Gillelan, II, Senior Attorney, argued the cause 
for respondent Director, Office of Workers' Compensation 
Programs. With him on the brief was Carol A. De Deo, 
Associate Solicitor.

Roger S. Mackey argued the cause and filed the brief for 
respondents Washington Hospital Center and Travelers 
Property Casualty Company.

Before: Williams, Ginsburg and Rogers, Circuit Judges.

Rogers, Circuit Judge: This case is one of the last claims 
likely to be brought by a District of Columbia employee under 
the Longshore and Harbor Workers' Compensation Act, 33 
U.S.C. ss 901-950 (1994).1 Florence Snowden appeals an 
order of the Benefits Review Board of the United States 
Department of Labor overturning a supplementary compen-
sation order of the Office of Workers' Compensation Pro-
grams. The underlying controversy is whether Ms. Snow-
den's compensation rate should include annual cost of living 
adjustments under s 910(f) of the Act for the years between 
her 1978 injury and the 1990 classification of her disability as 
permanent and total. The only question the court reaches, 
however, is whether the Board erred in asserting jurisdiction 
to review the supplementary compensation order. We join 
the other circuits that have addressed this question in holding 
that the Board lacked jurisdiction to review the order because 
it was issued pursuant to s 918(a), and thus became final 
when issued, with relief available only from the district court. 
Accordingly, we vacate the November 15, 1999 decision and 
order of the Board.


Florence Snowden injured her back in 1978 while working 

1 The Longshore and Harbor Workers' Compensation Act ap-
plies to injuries suffered by private-sector workers in the District of 
Columbia before July 24, 1982. Thereafter, the District of Colum-
bia Workers' Compensation Act of 1979, D.C. Code s 36-301 to 
36-345 (1981), applies. See District of Columbia Self-Government 
and Governmental Reorganization Act, Pub. L. No. 93-198, ss 204, 
302, 404, 87 Stat. 774, 783-84, 787-88 (1973). Because Ms. Snow-
den's injury occurred in 1978, we refer to the Longshore and 
Harbor Workers' Compensation Act as it applies in the District of 
Columbia as "the Act."

as a psychiatric nurse at the Washington Hospital Center.2 
After a formal hearing, an Administrative Law Judge issued a 
compensation order in 1992 awarding her benefits under the 
Act for permanent total disability, "commencing December 
18, 1990 and continuing for a period of 104 weeks thereafter, 
including periodic increases to which she may be entitled 
under the Act." Both the Office of Workers' Compensation 
Programs ("OWCP") and Aetna appealed to the Benefits 
Review Board; OWCP appealed the award of s 908(f)3 relief 
to Aetna, while Aetna challenged the determination of perma-
nent total disability. The Benefits Review Board affirmed 
the award of compensation but remanded the claim for 
s 908(f) relief.4

The 1992 compensation order did not specify the manner in 
which Ms. Snowden's benefit payments were to be calculated. 
Rather, the order simply stated that Aetna must "pay all 
periodic permanent total disability benefits ... including 
periodic increases to which she may be entitled under the 
Act." Thus, the order did not explicitly state whether Ms. 
Snowden's compensation rate should reflect the annual cost of 
living adjustments under s 910(f), i.e., the "catch-up" adjust-
ments, that had accrued in the years between her injury and 

2 For ease of reference, we refer to Ms. Snowden's employer, 
the Washington Hospital Center, and its insurer, Aetna Casualty & 
Surety Company (now known as Travelers Insurance Company) as 
"Aetna." We also refer to "OWCP," the Office of Workers' Com-
pensation Programs, without distinguishing between actions taken 
by various officials in or on behalf of OWCP.

3 Pursuant to s 908(f), the Special Fund, established in 33 
U.S.C. s 944, will assume responsibility for permanent total disabil-
ity payments after 104 weeks if "the employee is totally and 
permanently disabled, and the disability is found not to be due 
solely to that injury...." 33 U.S.C. s 908(f)(1).

4 On remand, the Administrative Law Judge ruled that s 908(f) 
was inapplicable and denied Aetna's request for reconsideration. 
The Board affirmed on Aetna's second appeal. Aetna thereafter 
reimbursed the Special Fund for payments it had made to Ms. 
Snowden since December 1992 and reinstated payments at rates 
that included catch-up adjustments.

the classification of her injury as a permanent and total 
disability.5 Consistent with Brandt v. Stidham Tire Co., 785 
F.2d 329 (D.C. Cir. 1986), OWCP advised Aetna that Ms. 
Snowden's weekly compensation rate would increase from the 
$192.80 that she had received for temporary total disability to 
$357.80 for permanent total disability, a figure reflecting the 
s 910(f) catch-up adjustments compounded since her 1978 
injury. Aetna paid Ms. Snowden as OWCP instructed.

Aetna did not challenge OWCP's methodology for comput-
ing Ms. Snowden's benefit payments until June 11, 1998. 
Then, relying on the Board's recent decision in Bailey v. 
Pepperidge Farm, Inc., BRB No. 97-1156, 1998 WL 285563 
(Benefits Review Bd. May 19, 1998), Aetna unilaterally cut 
Ms. Snowden's weekly benefit payments by nearly half, from 
$438.00 to $236.00, and requested an order from OWCP 
allowing it to take a credit under s 914(j) for $76,626.31 in 
alleged overpayments.6 Ms. Snowden filed a claim under 

5 Under s 910, "Determination of Pay," subsection (f) provides 
that cost of living adjustments to compensation benefits are avail-
able only to those claimants whose disability is classified by OWCP 
as permanent and total. See 33 U.S.C. s 910(f).

6 In Brandt, 785 F.2d at 332, this court adopted the interpreta-
tion of s 910(f) set forth in Holliday v. Todd Shipyards Corp., 654 
F.2d 415, 417, 422 (5th Cir. 1981), whereby s 910(f) catch-up 
adjustments were retroactive to the date of injury. In this opinion, 
we refer to "Brandt/Holliday" as the rule that applied when OWCP 
issued Ms. Snowden's 1992 compensation order. In 1990, the Fifth 
Circuit, sitting en banc, overruled Holliday. See Phillips v. Ma-
rine Concrete Structures, Inc., 895 F.2d 1033, 1035 (5th Cir. 1990). 
Some years later, in 1998, the Board held in Bailey that 
Brandt/Holliday "no longer applies to cases arising under the [ ] 
Act." Bailey, 1998 WL 285563, at *4. Henceforth, catch-up bene-
fits under s 910(f) would no longer be retroactive to the date of 
injury but would apply only to periods after an injury was classified 
by OWCP as permanent and total. See id. In contrast to the 
request made by Aetna for a credit reimbursement, no retroactive 
adjustment arose in Bailey, 1998 WL 285563, at *1-*4, because the 
employer had never commenced paying at the retroactive catch-up 

s 914(f)7 for additional compensation for overdue installments 
based on Aetna's failure to pay in accord with Brandt/Holli-
day. OWCP issued a "supplementary compensation order" in 
1998, finding Aetna in violation for failure to make more than 
$3500 in benefit payments, and liable, therefore, under 
s 914(f) for a penalty equal to 20% of the shortfall. Aetna 
paid Ms. Snowden the past-due benefits but not the 20% 
penalty.8 Aetna then appealed the supplementary compensa-
tion order to the Benefits Review Board.

The Board reversed OWCP's award of catch-up adjust-
ments in the 1998 supplementary compensation order, while 
noting that because the penalty had not been paid, it "lack[ed] 
jurisdiction to address the propriety of the penalty." On 
reconsideration, the Board rejected OWCP's argument that 
the Board lacked jurisdiction because the 1998 supplementary 
compensation order was issued pursuant to s 918(a), and thus 
was subject only to review by the district court. The Board 
took the position that there had never been a formal determi-
nation in the 1992 compensation order that Ms. Snowden was 
entitled to s 910(f) catch-up adjustments retroactive to the 
date of her injury, and thus the alleged default of the catch-
up adjustments was not "compensation due under any award 

rate, and in Phillips, 895 F.2d at 1035-36, the employer and the 
Board agreed not to seek reimbursement from the claimant.

7 Section 914(f), "Additional Compensation for Overdue Install-
ment Payments Payable Under Terms of Award," provides:

If any compensation, payable under the terms of an award, is 
not paid within ten days after it becomes due, there shall be 
added to such unpaid compensation an amount equal to 20 per 
centum thereof, which shall be paid at the same time as, but in 
addition to, such compensation, unless review of the compensa-
tion order making such award is had as provided in section 921 
of this title and an order staying payment has been issued by 
the Board or court.

33 U.S.C. s 914(f).

8 After Ms. Snowden filed for a default under s 918(a), OWCP 
issued a second supplementary compensation order in 1999 declar-
ing the 20% penalty in default.

of compensation" pursuant to s 918(a). In the Board's view, 
the 1998 supplementary compensation order was "an original 
adjudication of the Brandt/Holliday issue which is subject to 
review by the Board." The Board also ruled that Aetna 
would not receive credit for catch-up adjustments made prior 
to the Bailey decision but would be entitled to reduce Ms. 
Snowden's payments subsequent to Bailey so as to recover 
the amount of Brandt/Holliday overpayments.


As a threshold matter, Ms. Snowden, joined by OWCP, 
contends that the Benefits Review Board lacked jurisdiction 
to review the 1998 supplementary compensation order be-
cause the order was issued under s 918(a), not s 921(a).

Our review of decisions and orders of the Benefits Review 
Board is for errors of law and for confirmation that the Board 
acted within the scope of its review in evaluating the decision 
of the administrative law judge. See Brown v. I.T.T./Conti-
nental Baking Co., 921 F.2d 289, 293 (D.C. Cir. 1990) (citing 
Stark v. Washington Star Co., 833 F.2d 1025, 1027 (D.C. Cir. 
1987); Stevenson v. Linens of the Week, 688 F.2d 93, 96-97 
(D.C. Cir. 1982); Sun Shipbuilding & Dry Dock Co. v. 
McCabe, 593 F.2d 234, 237 (3d Cir. 1979)). The Board does 
not make policy; "its interpretation of the [Act] thus is not 
entitled to any special deference from the courts." Potomac 
Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n.18 
(1980) (citing Hastings v. Earth Satellite Corp., 628 F.2d 85, 
94 (D.C. Cir. 1980); Tri-State Terminals, Inc. v. Jesse, 596 
F.2d 752, 757 n.5 (7th Cir. 1979)). We hold that the Board 
lacked the jurisdiction to review the 1998 supplementary 
compensation order because it was a final order unreviewable 
by the Board.

The Act provides for review of compensation orders in two 
principal ways. Section 921 provides generally for the review 
of compensation orders by the Board.9 Specifically, s 921(a) 

9 Section 921, "Review of Compensation Orders," provides in 
subsection (b)(3):

provides that a compensation order shall become "effective" 
upon its filing pursuant to s 919, "unless proceedings for the 
suspension or setting aside [the] order are instituted" within 
thirty days. 33 U.S.C. s 921(a). Until that time, the Board 
has jurisdiction to "determine appeals raising a substantial 
question of law or fact taken by any party in interest from 
decisions with respect to claims of employees...." Id. 
s 921(b)(3). In contrast, s 918(a) addresses the collection of 
defaulted payments under an award of compensation.10 Thus, 

The Board shall be authorized to hear and determine appeals 
raising a substantial question of law or fact taken by any party 
in interest from decisions with respect to claims of employees 
under this chapter and the extensions thereof. The Board's 
orders shall be based upon the hearing record. The findings of 
fact in the decision under review by the Board shall be conclu-
sive if supported by substantial evidence in the record consid-
ered as a whole. The payment of the amounts required by an 
award shall not be stayed pending final decision in any such 
proceeding unless ordered by the Board. No stay shall be 
issued unless irreparable injury would otherwise ensue to the 
employer or carrier.

33 U.S.C. s 921(b)(3).

10 Section 918, "Collection of Defaulted Payments; Special 
Fund," provides in subsection (a):

In case of default by the employer in the payment of compensa-
tion due under any award of compensation for a period of thirty 
days after the compensation is due and payable, the person to 
whom such compensation is payable may, within one year after 
such default, make application to the deputy commissioner 
making the compensation order or a supplementary order 
declaring the amount of the default. After investigation, no-
tice, and hearing, as provided in section 919 of this title, the 
deputy commissioner shall make a supplementary order, de-
claring the amount of the default, which shall be filed in the 
same manner as the compensation order.... The applicant 
may file a certified copy of such supplementary order with the 
clerk of the Federal district court for the judicial district in 
which the employer has his principal place of business or 
maintains an office, or for the judicial district in which the 
injury occurred.... Such supplementary order of the deputy 

where an employer has failed to make payment for thirty 
days after a payment is due under a compensation award, the 
claimant may file for a supplementary order declaring the 
amount in default; the supplementary order becomes "final" 
when issued. Id. s 918(a). Review is not available by the 
Board, but only in an enforcement proceeding in the district 
court. See id. The Ninth Circuit has described the three 
prime distinctions between s 918 orders and s 921 orders:

(1) [O]rders issued under s 918, unlike s 921 orders, are 
not appealable to the Board; (2) s 918 orders are final 
when issued unlike s 921 orders which do not become 
final until after 30 days or, if appealed, after appeal; and 
(3) as a result, s 918 supplementary orders can immedi-
ately be filed with the federal district court for enforce-

Providence Wash. Ins. Co. v. Director, OWCP, 765 F.2d 1381, 
1385 (9th Cir. 1985). OWCP maintains that "finality" under 
s 918(a) means that "such an order is not subject to the 
ordinary review process of s [9]21, at least where the amount 
declared in default has not been paid in full, because such 
review would be duplicative of that available from the district 

As other circuits have observed, the Longshore and Harbor 
Workers' Compensation Act is "explicitly designed to encour-
age the prompt payment by employers of obligations under a 
compensation order notwithstanding the existence of an ap-
peal." Id. at 1384. Thus, the Fifth Circuit stated that where 
employers fail to meet their obligations, s 918(a) "provides a 
quick and inexpensive mechanism for the prompt enforcement 

commissioner shall be final, and the court shall upon the filing 
of the copy enter judgment for the amount declared in default 
by the supplementary order if such supplementary order is in 
accordance with law. Review of the judgment so entered may 
be had as in civil suits for damages at common law. Final 
proceedings to execute the judgment may be had by writ of 
execution in the form used by the court in suits at common law 
in actions of assumpsit....

33 U.S.C. s 918(a) (footnote omitted).

of unpaid compensation awards, a theme central to the spirit, 
intent, and purposes of the [Act]." Tidelands Marine Serv. 
v. Patterson, 719 F.2d 126, 129 (5th Cir. 1983). With that 
statutory purpose in mind, it follows that a s 914 order and a 
s 918 standard default order differ only in immaterial ways; 
under the former, OWCP must compute the 20% penalty 
amount that should be added to the default amount. An 
order issued under s 914(f) thus "is nothing more than a 
standard default order, plus an additional arithmetic compu-
tation." Providence, 765 F.2d at 1386. Because s 914 di-
rects that both the default amount and the penalty amount be 
paid at the same time, the terms of the statute explicitly 
reject any distinction between s 918 awards of "existing 
compensation" and s 914(f) awards of "additional compensa-
tion." Id. Both awards are "based on an appealable prior 
compensation order that resolves the substantive rights of the 
parties." Id.

Both the statute and caselaw indicate that whether the 
award of additional compensation for overdue installments 
and the declaration of the default are separately issued 
orders or combined into a single supplementary order is 
irrelevant. See id. at 1385; Tidelands, 719 F.2d at 128-29 & 
128 n.3. In Tidelands, when the employer failed to pay the 
s 914(f) penalty due within thirty days after the filing of the 
award, OWCP issued a supplementary compensation order, 
finding the employer in default of the penalty under s 914(f). 
See Tidelands, 719 F.2d at 128 & n.3. The Fifth Circuit held 
that the second order was not a s 914(f) order because the 
clear "substance [of] the order was a 'supplementary order 
declaring the amount of the default' within the meaning of 
Section [9]18(a) of the [Act]...." Id. at 128 n.3. In Provi-
dence, the supplementary compensation order awarding a 
20% penalty and the supplementary compensation order de-
claring default of the 20% penalty were combined into a 
single supplementary compensation order. See Providence, 
765 F.2d at 1385. The Ninth Circuit adopted the Fifth 
Circuit's approach, observing that were the s 914(f) supple-
mentary order "subject to s 921 procedures, it would be far 
more difficult and cumbersome for a claimant to collect both 

awards at the same time," as the Act contemplates. Id. at 
1386. For, as the Ninth Circuit noted, the default amount 
would be immediately collectible, while the 20% penalty could 
be collected only after waiting for the expiration of the 30-
day review period under s 921 and then obtaining from 
OWCP a second supplementary order under s 918 declaring 
the first supplementary order in default. See id. The latter 
scheme, the court concluded, "is obviously needlessly duplica-
tive and time consuming and completely at variance with 
Congress' intent," id. (citing Tidelands, 719 F.2d at 129), 
namely, to provide "a quick and streamlined mechanism for 
the collection of compensation under the [Act]." Id.

Consequently, "notwithstanding the general grant of juris-
diction to the Benefits Review Board contained in 33 U.S.C. 
s 921(b)(3)," the circuits to address the issue have concluded 
that "actions for the enforcement of orders declaring default 
in the payment of [installments] due under either s 914(f) or 
any other substantive section of the [Longshore and Harbor 
Workers' Compensation Act] are to be brought in the district 
court and, only subsequent thereto, by appeal to the appropri-
ate court of appeals." Tidelands, 719 F.2d at 129; see also 
Sea-Land Serv., Inc. v. Barry, 41 F.3d 903, 907 (3d Cir. 
1994); Providence, 765 F.2d at 1386. We agree, for reasons 
set forth by the Fifth and Ninth Circuits, that such an 
interpretation is consistent with the statutory language and 
"far better" conforms to Congressional intent. Providence, 
765 F.2d at 1386.

The 1998 supplementary compensation order was sought by 
Ms. Snowden pursuant to s 914(f) and resulted in OWCP's 
issuance of a supplementary order declaring Aetna in default 
of paying installments due under the 1992 compensation 
order. See supra n.8. As such, the 1998 order was manifest-
ly an order for the collection of defaulted payments within the 
meaning of s 918(a). As OWCP states, the 1992 compensa-
tion order was "plainly premised on th[e] view" that 
Brandt/Holliday applied to all awards for permanent total 
disability under the Act, and "on the consequent proposition 
that the compensation [ ] calculated and declared in default 
was 'due under' the [1992 compensation order]." Respon-

dent's Brief at 15. The Board's characterization of the 1998 
supplementary compensation order as "an original adjudica-
tion of the Brandt/Holliday issue" ignores both this circuit's 
law at the time the 1992 compensation order was issued and 
OWCP's contemporaneous understanding of the compensa-
tion rate for permanent total disability benefits in the District 
of Columbia. The Board's interpretation would also mean 
delays in receipt of amounts due to claimants contrary to the 
purposes of the Act and the specific provisions of s 918 to 
ensure quick payment of defaulted amounts. See Providence, 
765 F.2d at 1386.

Essentially then, the Board failed to acknowledge the dis-
tinction between appeals of compensation orders and proceed-
ings relating to compensation orders that are not direct 
appeals of the underlying compensation orders, but are "ap-
plication[s] for a supplementary order declaring a default in 
the payment of compensation under s [9]18(a)...." Bray v. 
Director, OWCP, 664 F.2d 1045, 1047 (5th Cir. 1981). "Such 
a deficiency is distinct from an error of fact or law, which 
must be asserted within 30 days after the filing of a compen-
sation order." Id. (citing s 921(a)). Given the undisputed 
record that Aetna paid Ms. Snowden pursuant to the 1992 
compensation order on the basis that she was entitled to the 
benefit of the catch-up adjustments, the fact that s 910(f) was 
not explicitly mentioned in the 1992 compensation order is not 
dispositive of the jurisdictional issue. The reference was 
implicit in light of Brandt/Holliday, and for years Aetna paid 
without challenging OWCP's methodology for calculating Ms. 
Snowden's compensation rate. When Aetna did challenge the 
methodology, it relied on the Board's decision in Bailey, 
which acknowledged a change of law in ruling that the 
Brandt/Holliday rule "no longer applies to cases arising 
under the [ ] Act." Bailey, 1998 WL 285563, at *4.

Finally, although Ms. Snowden and OWCP ask the court to 
address whether Brandt/Holliday is still law in this circuit, 
we decline to do so in view of our holding that the Board 
lacked jurisdiction to review the supplementary compensation 
order. Once the court has determined that the agency did 
not have jurisdiction to act, the court has declined to consider 

the merits of contentions that the agency erred. See, e.g., 
Stoddard v. Board of Governors of the Fed. Reserve Sys., 868 
F.2d 1308, 1312 (D.C. Cir. 1989); see also Synovus Fin. Corp. 
v. Board of Governors of the Fed. Reserve Sys., 952 F.2d 426, 
428 (D.C. Cir. 1991); Seatrain Lines, Inc. v. Federal Mari-
time Comm'n, 460 F.2d 932, 949 (D.C. Cir. 1972), aff'd, 411 
U.S. 726 (1973). In view of our practice, which is binding 
absent en banc review, the court has no occasion to decide 
whether it has jurisdiction to reach the substantive conten-
tions. Cf. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 
(1998); Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 
541 (1986).11

Accordingly, because the Benefits Review Board lacked 
jurisdiction to review the 1998 supplementary compensation 
order issued pursuant to s 918(a), we vacate the November 
15, 1999 decision and order of the Board.

11 The court, therefore, also does not reach Ms. Snowden's 
contentions that any modification to Brandt/Holliday be prospec-
tive, and that the Board erred in ruling that the lower compensation 
rates should be applied as of the date of Bailey. The court likewise 
does not reach OWCP's contentions that the Board misread Brandt, 
that this court should overrule Brandt, and that, in any event, 
Aetna waived any objection to the application of Brandt by failing 
timely to raise its objection.