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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br>No. 96-2299 <br> <br>                         MARTIN J. NEELY, <br>                           Petitioner, <br> <br>                                v. <br> <br>                  BENEFITS REVIEW BOARD, ET AL., <br>                           Respondents. <br> <br>                       ____________________ <br> <br>             ON PETITION FOR REVIEW OF A FINAL ORDER <br> <br>                   OF THE BENEFITS REVIEW BOARD <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                      Boudin, Circuit Judge, <br>John R. Gibson, Senior Circuit Judge, <br>and Pollak, Senior District Judge. <br> <br>                      _____________________ <br> <br> <br>    Gary A. Gabree, with whom Stinson, Lupton, Weiss & Gabree, <br>P.A. was on brief for petitioner. <br>    Joshua T. Gillelan II, Senior Attorney, Division of Employee <br>Benefits, with whom J. Davitt McAteer, Acting Solicitor of Labor, <br>and Carol A. De Deo, Associate Solicitor, were on brief for <br>respondent Director, Office of Workers' Compensation. <br>    Stephen Hessert, with whom Norman, Hanson & DeTroy was on <br>brief for respondent Bath Iron Works Corporation. <br> <br>                     _______________________ <br>                         March 24, 1998 <br> <br>                     _______________________ <br>

  BOUDIN, Circuit Judge.  Martin Neely suffered a back <br>injury while employed by Bath Iron Works ("Bath") and sought <br>compensation under the Longshore and Harborworkers' Compensation <br>Act, 33 U.S.C.  901 et seq. ("The Longshore Act" or the "Act").  <br>Compensation was denied on the ground that Bath had voluntarily <br>paid in full for Neely's temporary disability and for all <br>outstanding medical expenses.  Neely, supported by the Secretary of <br>Labor, seeks review in this court. <br>  The pertinent facts are undisputed.  Bath maintains a <br>shipyard for construction and repair in Bath, Maine.  Neely, while <br>employed as a tinsmith, suffered back injuries on September 29 and <br>30, 1992.  Neely incurred some medical expenses and was out of work <br>for about two weeks in October 1992, but then returned to work.  <br>Bath paid Neely compensation for his temporary disability and for <br>his medical expenses. <br>  There have been no further periods of disability due to <br>the injury.  However, under the Longshore Act, the compensation <br>regime is one of continuing protection:  subject to statute of <br>limitations provisions, 33 U.S.C.  913, employer liability for a <br>covered accident can involve ongoing responsibility to pay <br>compensation where partial or complete disability occurs or <br>reoccurs, and for medical expenses as they accumulate.  33 U.S.C. <br> 907, 908. <br>  In October 1992, Bath filed a notice of injury with the <br>federal Office of Workers' Compensation Programs, the agency within <br>the Labor Department that administers workers' compensation under <br>the Longshore Act.  Bath also filed a notice that it was <br>controverting Neely's right to compensation under that statute, see33 U.S.C.  914(d), because "Claimant [is] pursuing [compensation] <br>under State Act."  It is common for workers like Neely to be <br>protected both by the federal statute and by Maine's counterpart <br>workers' compensation law.  See, e.g., Reich v. Bath Iron Works <br>Corp., 42 F.3d 74, 76 (1st Cir. 1994). <br>    Then, on May 4, 1994, Neely filed an "Employee's Claim <br>for Compensation" with the Labor Department on account of the same <br>injury and on June 9, 1994, Bath filed a new notice of <br>contravention containing the following, apparently boilerplate, <br>response:  "Bath . . . disputes the fact of injury, nature and <br>extent of disability, timeliness of filing, and responsible <br>carrier."  It appears that Bath had continued to pay ongoing <br>medical expenses for Neely's injury while refusing to acknowledge <br>to Neely that he was entitled to such payments under the Longshore <br>Act. <br>    After informal proceedings failed to resolve the dispute, <br>the case was referred to an administrative law judge.  See 33 <br>U.S.C.  919(c), (d).  At the start of the hearing, Neely agreed <br>that he was not seeking a monetary award but said that he wanted an <br>order requiring Bath to file forms with the Labor Department to <br>acknowledge "that payments in fact made were as much under the <br>Longshore Act as under the state act."  The Longshore Act requires <br>the employer to file notices upon making a first payment of <br>compensation under the Act, or suspending payment, or making a <br>final payment.  33 U.S.C.  914(c),(g). <br>    In response, Bath told the ALJ--contrary to its earlier <br>filings--that it did not now dispute that Neely and his accident <br>were covered by the Longshore Act.  However, Bath said correctly <br>that it was entitled to a credit against Longshore Act liability <br>for payments made for the same injury under state law.  33 U.S.C. <br> 903(e).  Therefore, it argued it should not be required to file <br>additional forms suggesting that benefits were due under the <br>Longshore Act. <br>    The ALJ then ruled that Neely was not entitled to relief.  <br>He said that the payments had been made under state law, so that no <br>forms had to be filed under the Longshore Act.  He also said that <br>Neely was not prejudiced because Neely's claim of compensation <br>tolled the statute of limitations.  Neely appealed the decision to <br>the Benefits Review Board, which sustained the ALJ, quoting <br>language from our Reich decision that payments made under the Maine <br>statute "erase[ ] . . . liability under the federal statute."  42 <br>F.3d at 76. <br>    Neely then appealed to this court, this time eliciting a <br>brief in partial support of his position filed by the Solicitor of <br>the Labor Department, on behalf of the Director of the Office of <br>Workers Compensation Programs.  Recasting the case somewhat, the <br>Solicitor urged that Neely was entitled to an order determining <br>that his injury was covered by the Act but not to an order <br>requiring Bath to file the forms in question.  Bath defended the <br>Benefits Review Board in full, adding tersely that no case or <br>controversy existed and that Neely's request was essentially one <br>for "an advisory opinion." <br>    We obtained supplemental memoranda on the jurisdictional <br>question and now turn to the issues on appeal.  At the outset, a <br>majority of the panel concludes that a case or controversy exists <br>under Article III of the Constitution.  For Article III purposes, <br>it does not matter whether we look to Neely's original request that <br>notices be filed or to the Solicitor's argument for a declaratory <br>ruling:  in substance both seek a ruling that Neely's accident was <br>covered by the Act. <br>    The "case or controversy" label is used to embrace a <br>number of related but different problems of judicial authority, <br>including the requirement of a concrete dispute between <br>adversaries, standing, ripeness, mootness and limitations relating <br>to political questions.  See E. Chemerinsky, Federal Jurisdiction 2.1, at 41 (1989).  In this case, there are adverse parties; <br>Neely has standing as to his coverage under the Act; the coverage <br>issue will not be narrowed or illuminated ("ripened") by further <br>events; and the issue certainly does not present a political <br>question.   <br>    Rather, our concern is whether this is actually a "live" <br>controversy or whether the likelihood of any practical effect from <br>a ruling is so slight as to raise nothing more than a hypothetical <br>question.  See Raines v. Byrd, 117 S. Ct. 2312, 2317 (1997), Aetna <br>Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937).  The absence <br>of any request for a dollar award is not fatal; declaratory relief <br>alone may be sought where it may have some meaningful effect.  See <br>id.  But Article III requires some minimum likelihood that the <br>relief sought actually does or could matter.  See id. <br>    In this instance it is undisputed that Neely suffered an <br>injury severe enough to cause some temporary disability and medical <br>treatment, that the disability abated, and that the medical <br>treatment continued for a period.  The ALJ decision tells us-- <br>without dispute from the employer--that Neely's filed claim alone <br>has tolled the statute of limitations.  Thus, a renewed disability <br>traced to the same injury, or further medical expenses, could <br>conceivably give rise to a further award under the federal statute. <br>    Now, whether this will happen is uncertain, but it <br>certainly could.  Neely's was a back injury, an injury famously a <br>source of recurring problems; and Neely's injury was not a trivial <br>one since it involved two episodes of inability to work at all, <br>albeit brief ones; also, his medical expenses are said to have <br>continued thereafter, possibly up to the time that he filed his <br>claim almost a year and a half after the initial disability.  At <br>the very least, Neely had some basis for fearing that he might have <br>to make a further claim. <br>    If he did make such a claim, the ruling now sought would <br>remove from dispute the question whether his injury was a covered <br>accident, a matter about which there are often quite difficult <br>disputes.  See, e.g., Pittman Mechanical Contractors, Inc. v. <br>Director, Office of Workers' Compensation Programs, 35 F.3d 122, <br>123 (1994).  Here, in fact, Bath disclaimed coverage when Neely <br>filed his claim.  Its later admissions before the ALJ would make <br>further dispute by Bath more difficult but not necessarily <br>impossible. <br>    Thus, what Neely would gain from a ruling now amounts to <br>this: the emotional assurance of coverage; a resolution of the <br>issue--if Bath chooses to dispute it--while memories are fresh and <br>records easily available; and administrative speed, in the event of <br>a future claim by Neely based on the same accident, so long as <br>coverage was the only issue in dispute.  The Solicitor tells us <br>that ALJ dockets are crowded and that any dispute about a claim can <br>delay resolution for many months, if not more. <br>    These are not overwhelming effects.  They are surely less <br>than the practical consequences of a declaratory ruling about <br>insurance coverage, in advance of an incident, where a ruling <br>against coverage will induce the insured to seek new coverage or <br>take some other action.  See, e.g., Wisconsin Power & Light Co. v. <br>Century Indemnity Co., ___ F.3d ___, 1997 WL 730714, at *4-*5 (7th <br>Cir. Nov. 25, 1997).  But they are also not trivial advantages and <br>might seem significant to a worker with limited resources faced <br>with pursuing an administrative claim against an experienced <br>corporate opponent.  We think that there is enough at stake for <br>Neely to permit the case to proceed under Article III. <br>    This brings us to the merits.  The relief originally <br>sought by Neely, it will be recalled, was the enforcement of <br>provisions in 33 U.S.C.  914 that require the employer to file <br>forms with the Labor Department at the time the first payment is <br>made, 33 U.S.C.  914(c), and on the suspension or termination of <br>compensation, 33 U.S.C.  914(c), (g).  The purpose of these <br>provisions appears to be to permit the Department of Labor to keep <br>track of payments and to take remedial action on its own <br>initiative, as it is allowed to do.  33 U.S.C.  914(h). <br>    We are inclined to agree with the Solicitor that these <br>filing provisions are not designed to confer rights on the employee <br>or to be enforced by him or her.  The employee, after all, knows <br>whether compensation payments have started or ceased.  Further, the <br>filing of the forms would not itself settle coverage definitively <br>in Neely's favor; they might be an admission but Neely already has <br>that from the ALJ conference.  What Neely really needs--to protect <br>against later disputes as to coverage--is a declaration of <br>coverage. <br>    The Solicitor says that such an order is supported by <br>statutory language and by court and administrative precedent.  The <br>statutory argument is based on requirements that a hearing "shall" <br>be ordered on disputed claims, 33 U.S.C.  919(c), and that the ALJ <br>"shall" file an order "rejecting the claim or making the award <br>(referred to in this chapter as a compensation order) . . . , "  33 <br>U.S.C.  919(e).  But whether a request for a declaratory ruling as <br>to coverage falls within the rubric of "claim for compensation," or <br>is otherwise appropriate, is not answered by referring to repeated <br>uses of the term "shall." <br>    Nor do we think much help is provided by Ingalls <br>Shipbuilders v. Asbestos Health Claimants, 17 F.3d 130 (5th Cir. <br>1994), the main judicial precedent relied on by the Solicitor.  <br>There, the district director refused to refer numerous filed <br>asbestos claims to an ALJ for resolution.  On suit by the employer, <br>the court of appeals ruled that the district director had a <br>mandatory obligation to transfer claims to the administrative law <br>judge on request of "any interested party."  Id. at 133 (quoting 33 <br>U.S.C.  919(c)).  But Ingalls did not decide whether and when an <br>ALJ could or must issue declaratory orders to address coverage <br>issues.. <br>    Finally, the administrative precedent cited is weak.  <br>Kinnes v. General Dynamics Corp., 25 B.R.B.S. 311 (1992), sustained <br>a federal proceeding filed after a state award where the former was <br>for the purpose of securing "additional compensation."  In the <br>other case cited, Hoodye v. Empire/United Stevedores, 23 B.R.B.S. <br>341 (1990), the employer who admitted that continuing disability <br>payments were due to the employee sought to prevent entry of an <br>award by admitting such liability in the course of the proceeding; <br>in the present case there is no proven continuing disability, nor <br>proof of any unpaid medical expenses. <br>    Our problem is not one of ambiguity in the Act but of a <br>typical gap in a complex statutory scheme.  See, e.g., United <br>States v. Vaknin, 112 F.3d 579, 589 (1st Cir. 1997).  It is <br>doubtful that Congress considered, or that its language was drafted <br>to deal with, the relatively rare problem of the claimant who <br>suffered an injury creating disability, was fully compensated for <br>the disability, and was then interested in a declaratory ruling to <br>guard against recurrence or further medical expenses.  Indeed, the <br>Solicitor's brief tells us that no legislative history on the issue <br>can be found, nor are we surprised. <br>    The Secretary has rulemaking power, 33 U.S.C.  939, but <br>has not used it to close the gap in question (for example, by <br>defining compensation orders to cover cases like this one).  In <br>this context, the omission is not fatal:  most of the time, policy <br>choices can be made by the agency either through rule making or <br>adjudication.  See SEC v. Chenery Corp., 332 U.S. 194, 202-03 <br>(1947).  Here, however, the ALJ and the Benefits Review Board <br>decided the issue the other way.  And because of the peculiar <br>structure of the Act, the Secretary and her delegate do not review <br>individual decisions. <br>    One might ask why this should matter.  Policy-making <br>authority under the Longshore Act belongs to the Secretary, not to <br>the ALJ or the Benefits Review Board.  See Wood v. United States <br>Dep't of Labor, 112 F.3d 592, 595 (1997).  The Solicitor has told <br>us, on behalf of the Secretary's policy-making delegate (the <br>Director) that this kind of compensation order is proper.  But <br>substantial precedent, backed by the leading treatise on <br>administrative law, tells us that briefs submitted in litigation <br>are not the proper place for agencies to "make policy." <br>    Whether this should always be so might be debated.  To be <br>sure, on matters peculiarly within the knowledge of the parties, an <br>adjudicatory finding--however imbued with policy considerations-- <br>might be sometimes unfair unless and until the parties had been <br>heard.  In other instances, one might have some doubt whether the <br>view expressed informally through a brief was really that of the <br>policy maker (as opposed to counsel).  It is not apparent that any <br>of the reasons have much bearing on the present case. <br>    In all events, the Supreme Court, has been willing to <br>treat the views of the Secretary of Labor expressed in a brief as <br>entitled to some deference, even though not the full deference due <br>under the Chevron doctrine, see Chevron U.S.A., Inc. v. NRDC, Inc., <br>467 U.S. 837 (1984), to a policy-making judgment made in the course <br>of a formal proceeding.  See Metropolitan Stevedore Co. v. Rambo, <br>117 S. Ct. 1953, 1962 (1997); see also Massachusetts v. FDIC, 102 <br>F.3d 615, 621 (1st Cir. 1996) (stating that "less formal agency <br>determinations may be accorded something less than full Chevrondeference"). <br>    Rambo is also pertinent to the merits of the present <br>case.  There, a longshoreman injured on the job was awarded <br>permanent, partial disability but later, payments were discontinued <br>because his earnings had increased beyond his pre-injury wages.  <br>The employee sought a continuing award of nominal compensation to <br>toll the statute of limitations and permit a future claim if his <br>wages declined and resumed disability payments might otherwise have <br>been proper.  33 U.S.C.  913(b)(2) (final sentence).  The ALJ <br>refused. <br>    Ultimately, the Supreme Court held that such award of <br>nominal compensation could and should be entered, assuming "a <br>significant potential that the injury will cause diminished <br>capacity under future conditions."  Id. at 1963.  Rambo is thus <br>authority for a compensation order without any actual harm <br>presently uncompensated.  Further, the nominal compensation order <br>in Rambo undercut the statute of limitations and, in that sense, <br>was more in tension with an express provision of the Act than is <br>the kind of relief sought by Neely in this case.   <br>    Of course, the context in Rambo was somewhat different.  <br>The consequences for a worker there, in the absence of nominal <br>compensation, was a risk of being completely foreclosed from future <br>recovery by the statute of limitations.  Here, the statute is <br>supposedly tolled, and we are talking only about administrative <br>inconvenience and delay if relief now is denied.  About the most <br>one can say is that Rambo removes any statutory bar to declaratory <br>compensation orders and, in an analogous situation, encouraged a <br>protective approach somewhat akin to what the Solicitor urges here. <br>    Rambo required, as a condition of nominal compensation, <br>that the claimant show "a significant possibility" of future <br>disability based on the past injury.  117 S. Ct. at 1964.  We think <br>that the declaratory relief sought here is sufficiently similar <br>that the same showing, as to either disability or expenses, should <br>be imposed on Neely before the employer is required to litigate or <br>the ALJ to resolve an issue of disputed coverage.  On remand, Bath <br>can insist upon such a showing as a part of Neely's claim. <br>    The Secretary is free to fine-tune or adjust such <br>requirements by regulation.  The Supreme Court in Rambo made clear <br>that the Secretary does have rule-making authority in this realm.  <br>See 117 S. Ct. at 1962.  Its exercise would give guidance to <br>litigants, ALJs and the Review Board and would save time, expense <br>and confusion in future court proceedings. <br>    The decision of the Benefits Review Board is vacated, and <br>the matter remanded for further proceedings consistent with this <br>decision.  No costs will be awarded to any party. <br>                                               Dissent follows.

Pollak, J., concurring in part and dissenting in part.  I regret <br>that I am not able fully to subscribe to the court's eminently <br>reasonable opinion.  I agree that it makes good sense to adopt the <br>generous construction of the Longshore and Harbor Workers' <br>Compensation Act, 33 U.S.C. 901 et seq. ("Longshore Act"), contended <br>for by the Secretary of Labor.  Under the regime espoused by the <br>Secretary, a worker who has, without having filed a claim with the <br>Office of Workers' Compensation Programs ("OWCP"), actually received <br>compensation for an injury assertedly compensable under the <br>Longshore Act would have standing to ask the OWCP for a formal <br>declaration of coverage.  In the event that the worker should at <br>some later time suffer a disability alleged to be a recurrence of, <br>or derivative from, the original injury, the existence of the <br>declaration of coverage would obviate litigation of the coverage <br>issue at a point in the future when some witnesses might have <br>disappeared and the memories of available witnesses might have <br>dimmed.  The court -- correctly, in my view -- reads the Longshore <br>Act as not mandating the regime advocated by the Secretary; but the <br>court also -- again correctly, in my view -- finds, in effect, that <br>the Secretary has made a persuasive case that the regime would be <br>a salutary elaboration of the Act's prescribed procedures, and that <br>measured judicial respect for the Secretary's policy-making <br>responsibilities counsels acquiescence in the Secretary's position.  <br>But to all this the court adds a significant caveat -- one which I <br>also agree with -- namely, that a claimant is not entitled to a <br>declaration of coverage unless the claimant is able to establish <br>"'a significant possibility' of future disability based on the past <br>injury."      <br>    Given my agreement with the core of the court's opinion, <br>what is it I disagree with?  My disagreement has nothing to do with <br>the court's analysis of the circumstances in which the issuance of <br>a declaration of coverage is appropriate.  My disagreement with the <br>court is with its decision --  namely, that the order of the <br>Benefits Review Board is to be vacated and the case remanded to the <br>Board with a view, presumably, to a further remand to <br>Administrative Law Judge Tureck with instructions to entertain a <br>motion to be submitted by Neely for a declaration of coverage.  <br>This would be the proper disposition of Neely's petition for review <br>if Neely had sought a declaration of coverage from Judge Tureck and <br>had been turned down, and had then on appeal sought the same relief <br>from the Benefits Review Board and again been turned down, and had, <br>finally, come to this court on petition for review seeking judicial <br>vindication of a procedural claim incorrectly held to be non- <br>cognizable at two levels of administrative adjudication.  But that <br>is not what happened. <br>    What did happen is this: <br>    As the court's opinion explains, Neely, an employee of <br>Bath Iron Works, suffered work-related back injuries on September <br>29 and 30, 1992.  On October 1 Bath received word that Neely had <br>hurt his back, and on that date Bath authorized Neely to seek <br>treatment from a physician.  On October 2 Bath filed a report of <br>injury under the Longshore Act with the OWCP.  Four days later, on <br>October 6, Bath filed a "Notice of Controversion of Right to <br>Compensation", the ground of controversion being "Claimant pursuing <br>under State Act." Because of his injuries, Neely was off  work from <br>October 5 to October ll, and from October 12 through October 18.  <br>Bath, without delay, (1) paid compensation for Neely's two <br>sequential weeks of disability, and (2) took care of Neely's <br>medical expenses. <br>    A year and half later, in the spring of 1994, Neely filed <br>an "Employee's Claim for Compensation" under the Longshore Act;  <br>Bath promptly countered with what the court rightly characterizes <br>as an "apparently boilerplate" controversion, disputing all aspects <br>of liability.  When the matter came before Judge Tureck in the <br>summer of 1995, Bath's attorney, Stephen Hessert, presented a more <br>coherent legal position on his client's behalf: <br>         Bath Iron Works paid various periods of <br>    temporary total disability benefits for the <br>    injury under the State of Maine Workers' <br>    Compensation Act, and they paid all <br>    outstanding medical bills.  As far as I know, <br>    there is no claim for additional monetary <br>    benefits. <br> <br>         A first report was filed under the <br>    Longshore Act, but nothing else was filed <br>    under the Longshore Act.  I think the issue is <br>    whether Mr. Gabree is entitled -- or his <br>    client is entitled to some sort of protective <br>    decree. . . .     <br>             <br>Gary Gabree, Neely's attorney, responded: <br>         I generally agree with what Mr. Hessert <br>    has said. . . . There really is no claim for <br>    additional benefits.  We are seeking a <br>    protective decree at this time. . . . <br>Judge Tureck asked: <br>         What do you mean by a protective decree? . . . . <br>Mr. Gabree replied: <br>         . . . . I think what we're -- the real <br>    dispute here, I guess, is the reluctance of <br>    the employer to file the LS -206 or the 208[]acknowledging that payments have been made <br>    under the Longshore Act.  I think 14(g) [33 <br>    U.S.C. 914(g)] requires that, and down the <br>    road, I think that could be a potential <br>    problem. <br> <br>     ADMINISTRATIVE LAW JUDGE: <br>          So what is it you want me to do here? <br>     MR. GABREE: <br>          Well, I mean, if we could -- I'd settle <br>     for an order requiring the employer to file <br>     the LS-206, 208, acknowledging that this claim <br>     is compensable under the Longshore Act, and <br>     that payments in fact made were as much under <br>     the Longshore Act as under the state act.  I <br>     think it comes down to a choice of remedy, and <br>     I believe that's the employee's choice, not <br>     the employer's. <br> <br>Judge Tureck then interjected: "Okay, are any benefits ongoing <br>right now?" After being assured by Mr. Gabree that "all [benefits] <br>have been paid, in the amounts that we would be seeking," and <br>indeed that "the payments were made contemporaneously" [i.e., in <br>1992], Judge Tureck put a further question: <br>          Assuming I went ahead and issued the <br>     kind of order that you want required the <br>     employer to file the appropriate forms, what <br>     would you do with them?  I mean, at this point <br>     in time, what effect would it have even if <br>     they acknowledged the fact that this was a <br>     potential Longshore Act claim? <br> <br>     MR. HESSERT:         <br>          I can tell you -- do you mind if I respond to <br>that? <br>     MR. GABREE: <br>          No, go ahead. <br>     MR. HESSERT: <br>          From my client's point of view, what <br>     this is about is attorney's fees.  We are in a <br>     situation where cases like this happen; Bath <br>     accepts responsibility for them; they pay the <br>     benefits; file the federal first report; file <br>     the state first report; and make payments.  <br>     Mr. Gabree brings a, you know, asks for <br>     Longshore filed, the 206 and 208, and then <br>     asks for an attorney's fee based on the <br>     assumption that somehow provides a benefit to <br>     his client. . . . <br> <br>     MR. GABREE: <br>          Conversely, Your Honor, it seems to be <br>     a relatively simple matter to file the LS-206 <br>     or 208, and it also seems to be the <br>     appropriate course in claims that are clearly <br>     made under the Longshore Act once payments are <br>     made, so that the employer's reluctance to do <br>     so indicates something to me, and while I <br>     admit that we have discussed and I have kicked <br>     around for many hours what apparent advantage <br>     it gives us, and I'm prepared to address that <br>     issue in my brief, I can say that it's not a <br>     particularly strong argument, and there isn't <br>     a lot. <br> <br>          There is a possibility that some of the <br>     case law might support -- it might <br>     strengthen our case in future cases if and <br>     when we seek to pursue this claim and are <br>     confronted with the failure to prosecute <br>     defense arguably, and as far as the fees issue <br>     goes, perhaps this is to some degree a <br>     reaction to the administrative requirements we <br>     face in dealing with the U.S. Department of <br>     Labor.  I have in the past run into problems <br>     when there is an appropriate fee to be made, <br>     in getting that fee paid, because the employer <br>     fails to file the 206 or the 208 when clearly <br>     the work was done under the Longshore Act, but <br>     the additional step of filing that paperwork <br>     seems to be essential for the OWCP to award us <br>     any fees for whatever we've achieved for a <br>     client up to that point.  I say all this, <br>     recognizing that the additional work we do in <br>     this case in presenting this issue to you <br>     hopefully is a one-time deal, and I don't <br>     necessarily hold out any great hopes for <br>     making a lot of money on this case. <br> <br>     As the court notes in its opinion, Judge Tureck was not <br>persuaded that he should direct Bath to file LS-206 and LS-208.  <br>Judge Tureck ruled that because Bath had made its payments under <br>Maine law the Longshore Act's requirement that an employer file <br>notices relating to compensation payments were without application: <br>"nothing in the Act or the regulations requires an employer to file <br>notices of payment or termination of compensation which was not <br>paid pursuant to the Act." In declining to order Bath to file the <br>forms,  Judge Tureck reached the right result but for the wrong <br>reason.  The correct reason is the one which was urged upon this <br>court in the brief of the Solicitor of Labor -- "The reporting <br>requirements are intended to serve administrative purposes in the <br>district director's and Director's offices -- neither to establish <br>nor to safeguard the claimant's right to benefits" -- and which <br>this court very sensibly accepts in its opinion: "[T]hese filing <br>provisions are not designed to confer rights on the employee or to <br>be enforced by him or her." <br>     On appeal to the Benefits Review Board, Neely evidently <br>hewed to the line taken before Judge Tureck.  The Board, in its per <br>curiam affirmance, summarized Neely's contentions as follows: <br>          Claimant contends the administrative <br>     law  judge erred in failing to find that: his <br>     claim is compensable under the Act; payments <br>     made under the Maine Act are also required <br>     under the Longshore Act; employer is liable <br>     for these payments and should be ordered to <br>     file the appropriate forms and acknowledge its <br>     liability under the Act; and employer is <br>     liable for payment of the Section 14(g) <br>     penalty[] and for an attorney's fee. <br> <br>The Board's analysis of the Longshore Act was in accord with Judge <br>Tureck's: "[P]ayments made under another compensation law need not <br>be reported to the district director on forms provided by the <br>Secretary under this Act.  Therefore, we agree with the <br>administrative law judge's conclusion that payments made under the <br>Maine Act do not compel the employer to file forms LS-206 or LS-208 <br>in compliance with Section 14 of the Longshore Act." (Like the <br>administrative law judge, the Board reached the right result, <br>albeit for the wrong reason).  In a footnote, the Board opined: "In <br>light of our decision herein, we need not address claimant's <br>argument regarding counsel's entitlement to an attorney's fee.   <br>However, we note that as claimant has neither sought nor been <br>awarded additional benefits beyond those voluntarily paid by <br>employer, counsel is not entitled to a fee." <br>     In his petition for review in this court Neely has again <br>advanced the arguments which Judge Tureck and the Benefits Review <br>Board found unavailing.  In his "Summary of Argument" Neely states <br>his contentions in three paragraphs, the gist of which is as <br>follows: (1) "The decision below improperly denies the employee the <br>right to choose his remedy and the right to pursue his claim under <br>the Longshore and Harbor Workers' Compensation Law. . . ."  (2) <br>"Since the parties stipulated to the essential elements of the <br>Longshore claim and the employer voluntarily paid comparable <br>benefits under the state workers' compensation law, it was error <br>for the administrative law judge and the Benefits Review Board <br>below to hold otherwise.  Accordingly, the employer's failure to <br>file the paperwork acknowledging their responsibility under 914(g) <br>of the Longshore and Harbor Workers' Compensation Act subjects them <br>to the penalties mandated by that section."  (3) "Lastly, under the <br>reasoning in Kinnes[v. General Dynamics Corp., 25 B.R.B.S. 311 <br>(1992)], the employee has successfully established that he is <br>entitled to an award and consequently has prevailed in this <br>proceeding.  Therefore he has successfully prosecuted this claim <br>and is entitled to an attorney fee." <br>     This completes my prcis of the procedural history of <br>this case up to the point at which it appeared on this court's <br>docket.   I have canvassed this procedural history in what may <br>arguably be regarded as superfluous (and hyper-tedious) detail with <br>a view to making a single point.  At no point in the proceedings <br>before the administrative law judge or the Benefits Review Board, <br>or in his opening brief in this court, did Neely present the <br>contention -- namely, that he might at some point in the future <br>suffer a disability linked to his 1992 disability, and that he was <br>therefore entitled to a present determination of Bath's liability <br>under the Longshore Act -- acquiescence in which is the centerpiece <br>of today's opinion.  But because the Benefits Review Board -- <br>following the lead taken by Judge Tureck -- did not see the merit <br>of a contention not advanced, the Board's decision is today vacated <br>and this case remanded for further proceedings harmonious with <br>today's wisdom. <br>     A thoughtful reader might well break in at this point to <br>tell me that my concerns are both finicky and misdirected -- that <br>what has happened here is an instance of the not-all-that unusual  <br>scenario in which a legal argument that had not come into focus, or <br>that had not even been conceived, at earlier stages of the <br>litigation, emerges (whether through the efforts of counsel or of <br>the court) and carries the day on appeal.  That perception of what <br>has happened here may be thought to be implicit in the court's <br>observation that the entry into this case of the Solicitor of <br>Labor, "in partial support of [Neely's] position" in this court, was <br>reflected in the Solicitor's "[r]ecasting the case somewhat." But <br>the Solicitor's impressive "recasting" was not simply  a rethinking <br>of what arguments should be deployed to yield a result that had <br>eluded Neely before Judge Tureck and the Board.  The "recasting" was <br>a restructuring of the case designed to achieve a result Neely had <br>not sought.  The Solicitor has, in effect, undertaken to substitute <br>a new cause of action for the non-cognizable one Neely vainly <br>deployed.  The Solicitor's advocacy has been of a high order, as <br>is demonstrated by the fact that this court has, in its well- <br>reasoned opinion, accepted the bulk of the Solicitor's arguments.  <br>But even the Solicitor's alchemy is insufficient to turn a sow's <br>ear into a silk purse.  I have no quarrel with the proposition that <br>a future claimant should be able to seek a declaration of coverage <br>on the terms marked out by the court.  But I am not persuaded that <br>the new cause of action should redound to the benefit of the <br>claimant who is before this court. <br>     In noting that the court's opinion has accepted "the bulk" <br>of the arguments made by the Solicitor, I think it appropriate to <br>point out that in one crucial particular the court has <br>circumscribed the new cause of action, imposing a limitation not <br>expressly called for by the Solicitor.  In insisting that one who <br>seeks a declaration of coverage "show a 'significant possibility' <br>of future disability based on the past injury," the court has built <br>into the new cause of action an element of objectively demonstrable <br>potential harm -- harm which a declaration of coverage may at least <br>soften the impact of.  The addition of this ingredient probably <br>suffices to make the new cause of action a sufficiently ripe case <br>or controversy so as to be litigable in an Article III court, such <br>as this one.  However, Neely's case, as it comes to this court, <br>does not even prima facie fall within the stated limitation.  <br>Nothing in the record lends credence to the notion that Neely might <br>some day suffer a disability traceable in any way to the 1992 <br>episode.  The only wisp of potential nexus is to be found in the <br>court's observation that "Neely's was a back injury, an injury <br>famously a source of recurring problems." With all respect, I do <br>not think that a judicial observation of this sort has sufficient <br>grounding to elevate a conjecture into a controversy. <br>     In sum, I am in accord with the court's explication of a <br>new cause of action under the Longshore Act -- a cause of action <br>that seeks a declaration of coverage as the court has defined such <br>a declaration.  But I am not persuaded that Martin Neely, having <br>never sought a declaration of this kind with respect to his 1992 <br>disability, should now acquire the opportunity to drag Bath into <br>litigation all over again.</pre>

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