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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies


ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit or contact the clerk of the relevant court.

Case Number: 
4:13-cv-01105 Search Pacer
ACE Group party(s): 
Opposing Party: 
Service Employees International Inc.
Court Type: 
US District Court: 
Southern District of Texas
Date Filed: 
Apr 18 2013

A. The Court should review Petitioners’ appeal because the BRB D&O is now a final order due to the ALJ’s recent factual findings on average weekly wage and Dimensions/ACE’s responsibility for temporary total disability benefits during Holguin’s employment for SEII that disposed of the previously unresolved issues.

In the Order issued on December 13, 2010, Judge Ellison determined that the BRB D&O was not a final order, and thus, it lacked subject matter jurisdiction and dismissed Petitioner’s appeal. Ex. D. at 6-8. Judge Ellison explained that because the BRB concluded that SEII was the responsible employer, but the ALJ made factual findings on the basis that Dimensions was the responsible employer, it was necessary that the ALJ make additional factual findings on remand, given the BRB’s reversal, for the BRB D&O to be final. Id. at 5-6.

Specifically, Judge Ellison identified two “unresolved issues” that the ALJ did not address after the BRB’s remand of this claim: Holguin’s average weekly wage and Dimensions/ACE’s responsibility for temporary total disability benefits during Holguin’s employment with SEII. Id. at 5. Upon the BRB’s conclusion that SEII was the responsible employer, there was no factual finding as to Holguin’s average weekly wage because the average weekly wage calculated by the ALJ was based on Holguin’s employment with Dimensions, not his employment with SEII. Id. Similarly, because the BRB determined that Dimensions was not the responsible employer, Dimensions could only be responsible for benefits up to June 23, 2007, the date of Holguin’s subsequent injury with SEII. Id.

These issues, however, were resolved in the ALJ’s Order on Remand, issued on January 8, 2013, in which the ALJ determined that Holguin’s average weekly wage was $2,688.00 and that Dimensions/ACE’s responsibility for benefits terminated as of June 20, 2007. Ex. E at 2. Judge Ellison indeed noted that “[o]nce the ALJ has entered his second order in this case, the parties may subsequently appeal not only the Board’s affirmance of the ALJ’s second order – which would then be a final order – but also the propriety of the Board’s April 16, 2009 remand order to the ALJ.” Ex. D at 10. As the issues identified in Judge Ellison’s Order were addressed by the ALJ and no unresolved issues remain, the BRB D&O is a final order, and thus, the Court has appellate jurisdiction to review it.

B. The Court has jurisdiction of this case because it is futile for the BRB to review the ALJ Order as there is nothing for the BRB to review.

It is true, however, that the BRB did not review the ALJ’s Order on Remand, but the Court nonetheless has jurisdiction in this case because it would be futile for Petitioner to appeal the ALJ’s Order on Remand to the BRB, and the United States Circuit Courts have interpreted the LHWCA to permit a petitioner to appeal directly to a federal court and bypass the BRB in the case of futility.

The Ninth Circuit held that it had jurisdiction to review a claim in which the ALJ’s decision was not appealed to the BRB. See Nat’l Steel & Shipbuilding v. Dir., OWCP, 703 F.2d 417, 418-19 (9th Cir. 1983). In National Steel, which is factually similar to this case, the employer/carrier appealed a BRB decision, but the Ninth Circuit dismissed the appeal due to lack of jurisdiction because the BRB’s reversal of the ALJ decision created unresolved issues and as such, was not a final order. Id. at 418. Thereafter, the ALJ issued a second decision addressing the remanded issues, but the employer/carrier did not appeal this decision to the BRB within the thirty-day time frame, and instead, appealed the decision directly to the Ninth Circuit. Id.
Nonetheless, the Ninth Circuit concluded that it had jurisdiction because the second decision was a final order, and it would be futile to require the employer/carrier to appeal to the BRB as “a summary affirmance adhering to a previous ruling in the same case may properly be viewed as a purely ministerial act.” Id. at 418-19. In that case, the Ninth Circuit’s review was appropriate because “[w]hen [the employer/carrier] filed its current petition for review, the time for further review before the BRB had passed and neither side had appealed to the Board,” and as such, “[t]he threat of confusion arising from concurrent jurisdiction no longer exists.” Id. Moreover, “[t]he very uncertainties that caused [the court] to dismiss [the employer/carrier]’s prior appeal ha[d] [then] been permanently laid to rest.” Id. at 418.

The Third Circuit also held that futility permits a party to bypass the BRB and to petition the federal court directly, but only if there is no threat of concurrent jurisdiction. See Elliot Coal Mining Company, Inc. v. Dir., OWCP, 956 F.2d 448, 449 (3d Cir. 1992). That court dismissed the petitioner’s appeal because the ALJ’s second decision was not yet a final order due to the fact that the petitioner filed a concurrent appeal with the BRB, and the BRB had not yet issued a decision. Id.

That case, however, is distinguishable from the present case because although an appeal was filed with the BRB, there is no “threat of confusion from concurrent jurisdiction” here. Unlike Elliot Coal Mining, where there was an appealable issue before the BRB, there are no appealable issues for the BRB to review arising out of the ALJ Order. The two unresolved issues that the BRB previously remanded to the ALJ, Holguin’s average weekly wage and Dimensions/ACE’s responsibility for temporary total disability benefits during Holguin’s employment with SEII, are not appealable because the parties stipulated to these facts, which comprised all of the ALJ’s factual findings in the Order on Remand. Ex. E.
The sole issue now is whether Petitioners are not the responsible employer/carrier in this claim. The BRB has already considered the responsible employer/carrier issue twice. It reversed the ALJ D&O, finding Petitioners to be the responsible employer/carrier, and then affirmed its D&O on reconsideration en banc. The BRB cannot now review the issue of responsible employer/carrier because this issue was not remanded to the ALJ, and as such, was not addressed in the ALJ Order.
For these reasons, there is nothing for the BRB to review. The BRB cannot issue anything beyond “a summary affirmance” of the ALJ Order. Thus, it would be futile for Petitioners to seek relief from the BRB, and requiring Petitioners to pursue an appeal before the BRB would cause undue delay.

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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