                  United States Court of Appeals,

                          Fifth Circuit.

                           No. 93-7077.

         INGALLS SHIPBUILDING, INC., Plaintiff/Appellee,

                                   v.

       ASBESTOS HEALTH CLAIMANTS, Intervenors-Appellants,

                                 and

 N. Sandra Kitchin, District Director for the Sixth Compensation
District, Office of Workers' Compensation Programs, United States
Department of Labor, Defendant/Appellant.

                          March 30, 1994.

Appeals from the United States District Court for the Southern
District of Mississippi.

Before JOHNSON, GARWOOD, and JOLLY, Circuit Judges.

     JOHNSON, Circuit Judge:

     Ingalls   Shipbuilding,   Inc.     ("Ingalls")   filed   the   instant

action seeking to compel N. Sandra Kitchin, the District Director

for the Sixth Compensation District (the "Director"), to transfer

the asbestos claims of approximately 3,100 former Ingalls' shipyard

workers to the Office of the Administrative Law Judge ("OALJ") for

a hearing.   The district court granted a writ of mandamus ordering

the Director to refer the cases.      The Director appeals.    We AFFIRM.

                   FACTS AND PROCEDURAL HISTORY

     On October 10, 1990, Ingalls filed with the OALJ a Motion to

Consolidate and Motion for Summary Decision concerning certain

asbestos claims by former Ingalls' shipyard workers on file with




                                   1
the Director.1     Along with that filing, Ingalls formally requested

that the Director transfer the enumerated claims to the OALJ for an

administrative hearing.       On November 2, 1990, and February 15,

1991,    Ingalls   made   identical   filings   with   respect   to   newly

identified claims bringing the total number of claims that it

requested the Director to transfer to the OALJ for a hearing to

approximately 3,100.2

     1
      N. Sandra Kitchin is the local District Director of the
Department of Labor's Office of Workers' Compensation Programs
("OWCP"). She is responsible for the general administration of
the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33
U.S.C. § 901 et seq., in the Sixth Compensation District.
     2
      Ingalls compiled this list of nearly 3,100 claims by
searching the records to find all claims against it wherein the
claimants had accepted one or more tort settlements with
third-party defendants without obtaining Ingalls' formal, written
approval. This action by Ingalls was prompted by our opinion in
Nicklos Drilling Co. v. Cowart, 907 F.2d 1552 (5th Cir.1990). In
Cowart, a panel of this Court held that, pursuant to 33 U.S.C. §
933(g)(1), failure of a claimant to obtain the approval of both
the employer and the employer's insurance carrier before entering
into a settlement would result, without exception, in forfeiture
of benefits under the LHWCA. Id. at 1553; See also, Petroleum
Helicopters, Inc. v. Barger, 910 F.2d 276, 278 (5th Cir.1990);
Petroleum Helicopters, Inc. v. Collier, 784 F.2d 644, 647 (5th
Cir.1986). On rehearing en banc of the Cowart case, this Court
affirmed the panel's opinion and further made it clear that this
approval-or-forfeiture provision applied even if the employer was
not paying benefits at the time of settlement. Nicklos Drilling
Co. v. Cowart, 927 F.2d 828, 830 (5th Cir.1991) (en banc ).
Finally, the United States Supreme Court granted certiorari and
affirmed the en banc opinion of this Court. Estate of Cowart v.
Nicklos Drilling Co., --- U.S. ----, 112 S.Ct. 2589, 120 L.Ed.2d
379 (1992).

          Ingalls argues that these decisions entitle it to
     summary judgment defeating the listed claims and thus
     Ingalls seeks to force these claims to adjudication on the
     merits so as to dispose of them. Whether Ingalls is correct
     and is therefore entitled to summary judgment is not before
     this Court. That must be decided on the particular facts of
     each case by the ALJ to whom such cases are assigned and we
     express no opinion in that regard. Instead, the issue we

                                      2
      In December of 1990, at Ingalls' request, the Director did

refer a group of fifty-five of these claims3 to the OALJ for a

hearing and disposition on Ingalls' substantive motions.               However,

the Director then refused to transfer the balance of the cases.

Instead, over the next several years, the Director continued in

devising new and inventive rationales for deferring the referral of

these claims.         Hence, on October 10, 1991, Ingalls filed the

instant mandamus action seeking to force the Director to transfer

the claims.

      The district court ruled in favor of Ingalls finding that the

Director had a nondiscretionary duty under the LHWCA to order a

hearing before the OALJ when requested by an interested party.

Thus, on January 7, 1993, the district court issued an order

compelling the Director to transfer the asbestos claims to the

OALJ.     The parties now appeal.

1. JURISDICTION

      Initially, we must respond to the Director's contention that

the   district    court   lacked   jurisdiction     to   issue   the   instant

mandamus order.       Subject matter jurisdiction is a question of law

over which we exercise plenary review.            Ceres Gulf v. Cooper, 957

F.2d 1199, 1204 (5th Cir.1992).

          In   this   case,   jurisdiction   in    the   district   court   is

predicated on the Mandamus and Venue statute. That statute broadly


      face today is whether the district court was correct in
      compelling the Director to order a hearing before the OALJ.
      3
      This group of cases was identified as the "Pate cases"
after the name of the plaintiffs' attorney who had filed them.

                                      3
provides   that   "[t]he      district   courts     shall   have   original

jurisdiction of any action in the nature of mandamus to compel an

officer or employee of the United States or any agency thereof to

perform a duty owed to the plaintiff."            28 U.S.C. § 1361.       The

current action was brought in an attempt to compel the Director, an

officer of the United States, to perform a duty allegedly owed to

the plaintiff pursuant to the LHWCA, a federal statute.            Thus, it

is clear that this action falls squarely within the ambit of this

statute.

     Nevertheless, the Director contends that we should remove this

action   from   the   reach   of   section   1361   on   the   strength    of

Telecommunications Research & Action Center v. FCC, 750 F.2d 70

(D.C.Cir.1984) (hereinafter TRAC).       In TRAC, the D.C. Circuit held

that where an agency's governing statute vests jurisdiction for

review of agency action in the court of appeals, that court also

has the power to compel agency action in aid of that jurisdiction.4

TRAC 750 F.2d at 77.     Further, the TRAC court explained that the

existence in the appellate court of the power to compel agency

     4
      The TRAC court identified two sources of authority to
support its conclusion that the court of appeals was empowered to
compel agency actions when review over that agency's action is
entrusted by statute in the court of appeals. First, the court
held that the All Writs Act, 28 U.S.C. § 1651, provided that
court with the authority to issue all writs necessary to protect
its prospective jurisdiction. TRAC, 750 F.2d at 76. Second, the
TRAC court found support in the language of the Administrative
Procedure Act (APA) which states that the reviewing court shall
"compel agency actions unlawfully withheld or unreasonably
delayed ..." 5 U.S.C. § 706(1). From this language, the D.C.
Circuit gleaned a congressional intent that the courts designated
by statute to review agency actions play an important role in
compelling agency action that has been improperly withheld or
delayed. Id. at 77.

                                     4
action   defeated   mandamus   jurisdiction   in   the   district   court

pursuant to 28 U.S.C. § 1361 because mandamus is not available when

review by other means is possible.     Id. at 77-78.

     Even if we chose to follow our sister circuit's holding in

TRAC, we do not believe that this would compel a holding in this

case that the district court lacked jurisdiction.        This is because

in TRAC, the appellate court's jurisdiction to compel action by the

FCC was based on the statutorily conferred jurisdiction to review

final FCC actions.    While the LHWCA does provide for review by the

court of appeals, that review is limited to final orders of the

Benefits Review Board (the "Board"). 33 U.S.C. § 921(c). However,

the action or inaction at issue in the instant case is attributable

to the Director and not the Board.

     Prior to 1972, the Director had both the administrative duties

and the full adjudicatory authority under the LHWCA.5          In 1972,

though, Congress amended the LHWCA and split the authority for

these two functions.6     The Director retains authority for the

     5
      Moreover, compensation orders issued by the deputy
commissioners were reviewable in the district court. In re
Compensation Under Longshore & Harbor Workers' Compensation Act,
889 F.2d 626, 629 (5th Cir.1989).
     6
      Under 33 U.S.C. § 919(d), the authority to act as hearing
officer was transferred from the deputy commissioners (the
Director herein) to the OALJ. Specifically, that section
provides that

           "Any such hearing shall be conducted by a [sic]
           administrative law judge.... All powers, duties, and
           responsibilities vested by this chapter, on October 27,
           1972, in the deputy commissioners with respect to such
           hearings shall be vested in such administrative law
           judges."


                                   5
overall administration of the statute.        Substantive legal or

factual disputes arising under the LHWCA, however, are to be

decided by the OALJ with review to the Board.7   Director, Office of

Workers' Compensation Programs v. O'Keefe, 545 F.2d 337, 343 (3d

Cir.1976).

     Review by this Court is limited to final orders made by the

Board in the exercise of its adjudicatory authority.    33 U.S.C. §

921(c). The LHWCA does not, however, extend to this Court original

jurisdiction over the actions of the Director in the exercise of

her administrative authority.

     As we have no statutorily conferred jurisdiction over the

actions of the Director, the All Writs Act would not provide this

Court with jurisdiction to compel action by the Director.        28

U.S.C. § 1651(a).   Hence, review is not otherwise available in the

court of appeals and thus, even under the reasoning of the TRAC

court, there is no basis to defeat the mandamus jurisdiction of the

district court under 28 U.S.C. § 1361.   See TRAC 750 F.2d at 77-78.

     Therefore, we conclude that jurisdiction in the district court

to issue the instant order was proper pursuant to the Mandamus and

Venue statute, 28 U.S.C. § 1361.

2. MANDAMUS


     33 U.S.C. § 919(d).
     7
      The Board is authorized "to hear and determine appeals
raising a substantial question of law or fact ... from decisions
with respect to claims of employees...." 33 U.S.C. § 921(b)(3).
It is a "quasi-judicial body presented with select cases and not
an agency involved in the overall administration of the statute."
O'Keefe, 545 F.2d at 343; See also Ryan-Walsh Stevedoring Co.,
Inc. v. Trainer, 601 F.2d 1306, 1314 n. 7 (5th Cir.1979).

                                   6
        Mandamus is only appropriate when the claim is "clear and

certain and the duty of the officer is ministerial and so plainly

prescribed as to be free from doubt."            Giddings v. Chandler, 979

F.2d 1104, 1108 (5th Cir.1992);            See also Nova Stylings, Inc. v.

Ladd, 695 F.2d 1179, 1180 (9th Cir.1983).              Mandamus is thus not

generally available to review the discretionary acts of public

officials.   Giddings, 979 F.2d at 1108.         Though this is a difficult

burden for a plaintiff to meet, we believe that the plaintiff

herein has shown that it is entitled to relief.

        The duty in this case stems from the text of the LHWCA.            That

statute provides that "[t]he [Director] shall make or cause to be

made such investigation as [she] considers necessary in respect of

the claim, and upon application of any interested party shall order

a hearing thereon."       33 U.S.C. § 919(c) (emphasis added).             That

this section creates a clear, non-discretionary duty on the part of

the    Director   was   decided   by   this    Court   in   Atlantic   &   Gulf

Stevedores, Inc. v. Donovan, 274 F.2d 794, 802 (5th Cir.1960);              See

also Pyro Mining Co. v. Slaton, 879 F.2d 187, 190 (6th Cir.1989).

       The facts in Atlantic & Gulf are very similar to the case at

bar.    In Atlantic & Gulf, the employer requested a hearing, and

when the director refused, the employer sought a mandatory order in

the district court to compel a hearing.            After dismissal in the

district court, the case came before this Court presenting the

issue of whether the district court could properly order the




                                       7
Director to proceed to a hearing.8     Atlantic & Gulf, 274 F.2d at

796.

       After reviewing the LHWCA, this Court found that, under 33

U.S.C. § 919(c), the Director had a clear and mandatory duty to

proceed to a hearing.    Id. at 802.   Further, the Atlantic & Gulf

Court found that the Director was in derogation of that duty and

that the district court was empowered to issue a suitable mandatory

order to compel compliance with that duty.9

       The Director herein does not seriously dispute the mandatory

nature of this duty. Instead, she contends that she has discretion

to delay the performance of that duty.        The exercise of this

discretion is justified, she argues, because delaying the referral

of these cases would not prejudice Ingalls and because of the

administrative concerns she has raised.10

       8
      This case was decided prior to the 1972 Amendments to the
LHWCA which split the administrative and adjudicatory functions
between the Director and the OALJ respectively. Thus, at the
time that the Atlantic & Gulf case was decided, the Director not
only handled the administrative duties under the LHWCA, but he
also served as the hearing officer. See 33 U.S.C. § 919(d).
       9
      The Atlantic & Gulf Court found that this power to compel
action by the Director was inherent in the LHWCA itself.
However, even if were not, the Court explained that it certainly
did exist under the provisions of the APA. Specifically, the
Court found that every agency has a duty to conclude any matter
before it with reasonable dispatch and that the courts are
specifically empowered to review the inaction of an agency and to
"compel agency action unlawfully withheld or unreasonably
delayed." Atlantic & Gulf, 274 F.2d at 802 (quoting 5 U.S.C. §
706(1)).
       10
      Specifically, she argues that immediate referral of so
large a number of cases will overburden her office and inundate
the OALJ. Accordingly, she claims she has discretion to manage
the referral of these cases to the OALJ so as to conserve
administrative resources and maximize the efficiency of the

                                  8
     We cannot agree that the Director possesses discretion to

delay ordering a hearing after a request for one has been made.

Under the LHWCA, the Director is expressly granted broad discretion

in the early stages of a claim.   As the majority of claims involve

problems that result from misunderstandings or mistakes of fact or

law which "seldom require resolution through formal hearings....

the [Directors] are empowered to amicably and promptly resolve such

problems by informal procedures."     20 C.F.R. § 702.301.   These

efforts usually take the form of informal discussions, written

communications or informal conferences at the Director's office.

20 C.F.R. § 702.317.

     However, if it becomes apparent that the claim cannot be

settled amicably, or on application of an interested party, the

Director's discretion ends and she must refer the case to the OALJ

for a hearing.   This is clear from the governing regulations which

state that

     if [the Director] is satisfied that any further conference
     would be unproductive, or if any party has requested a
     hearing, the [Director] shall prepare the case for transfer to
     the Office of the Chief Administrative Law Judge.

20 C.F.R. § 702.316 (emphasis added).    Further, it is clear from

the LHWCA itself which mandates that the Director "upon application



administrative process. Moreover, she argues that referral of
the cases should be delayed until after disposition of the "Pate"
cases which are already before the OALJ. Disposition of these
cases, the Director contends, will narrow the scope of the
dispute and help speed adjudication of the remaining cases
without the administrative burden of transferring all the cases
to the OALJ. Lastly, the Director claims to have discretion to
defer transferring the claims to allow her to develop the claims
better through further informal investigation.

                                  9
of any interested party shall order a hearing thereon."         33 U.S.C.

§ 919(c).

     To allow the Director discretion, after a request for a

hearing has been made, to delay performance of this duty until such

time as she, in her discretion, decides that such a hearing is

either necessary or administratively convenient would effectively

defeat the mandatory language of these provisions.              We do not

believe that this would be consistent with either the statute or

the regulations.   Therefore, whether Ingalls would be prejudiced

and whatever the merits of the administrative concerns that the

Director has raised, we hold that the Director lacked discretion to

delay the ordering of a hearing.11

     In sum, we note that Ingalls, an interested party herein, has

specifically and repeatedly requested that the Director transfer

the claims in issue to the OALJ for a hearing.         Further, in her

reply brief to this Court, the Director admits that disposition of

these cases through informal means is highly unlikely. Under these

circumstances, we find that the Director had a clear, ministerial

and nondiscretionary   duty   pursuant   to   33   U.S.C.   §   919(c)   to

transfer the claims in issue to the OALJ for a hearing.         Moreover,

like the Atlantic & Gulf Court, we believe that mandamus was the


     11
      A reviewing court will generally give judicial deference
to a reasonable statutory interpretation by an administrative
agency, Chevron United States, Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694
(1984); however, the court "should not defer to an agency
position which is contrary to an intent of Congress expressed in
unambiguous terms." Estate of Cowart, --- U.S. at ----, 112
S.Ct. at 2594.

                                 10
proper remedy to redress the Director's failure to carry out this

duty. Atlantic & Gulf, 274 F.2d at 802.           Accordingly, the district

court did not err in granting mandatory relief to Ingalls ordering

the Director to comply with her statutory duty.

3. PROTECTIVE CLAIMS

        More than ninety percent of the workers who filed the claims

in issue herein allege to have been exposed to asbestos in the

workplace,     but   at   present   they    display   only   minor    or   benign

pulmonary changes without showing any current disability.                  Thus,

they    have   no    present   claim   against    Ingalls    for     disability.

Nevertheless, these workers filed claims with the Director pursuant

to an old administrative practice whereby a worker would make a

"protective filing" to prevent the running of the statute of

limitations and thus preserve his or her right to seek compensation

for any possible future disability.12            See Generally Pillsbury v.

United Engineering Co., 342 U.S. 197, 199, 72 S.Ct. 223, 224, 96

L.Ed. 225 (1952).

       In light of this, the Director contends that even if Ingalls

would otherwise have a right to demand that the Director transfer

       12
      Under the old LHWCA provisions, the one year limitations
period for the right to compensation for disability under the
LHWCA began to run at the time of the "injury." Marathon Oil Co.
v. Lunsford, 733 F.2d 1139, 1141 (5th Cir.1984). In some cases,
however, disability might not arise from an on the job "injury"
until much later. In such a case, a worker's right to receive
compensation for his disability could be time-barred before it
even accrued. To alleviate this problem, the Director would
accept "protective filings" from workers who showed no current
disability to satisfy the requirement that claimants file within
one year of their injury. Then, the claim would be held in
abeyance until such time as a compensable injury developed, if
one ever did. See Pillsbury, 342 U.S. at 199, 72 S.Ct. at 224.

                                       11
contested LHWCA claims to the OALJ for a hearing, we should hold

that these particular claims should be held in abeyance.              This is

because they are not present claims for compensation and, as such,

maintenance of these claims in no way prejudices Ingalls.                    In

short, the Director would have us separate out these types of

claims and exempt them from the purview of the duty imposed by 33

U.S.C. § 919(c).

       We do not choose to do this.       First, as the Director's counsel

admitted in oral argument, there is nothing on the face of these

claims to distinguish them as different from any other claim.

Second,    nothing    in   the   LHWCA    or   the    governing   regulations

authorizes the filing of protective claims or even recognizes their

existence.      Moreover, the Board has specifically ruled that, under

the Act, there is no provision for protective filings.             All claims

filed with the Director are to be treated as active claims and,

once   filed,    section   919(c)   directs    an    investigation,    and   if

requested by an interested party, a hearing.              Black v. Bethlehem

Steel Corp., 16 B.R.B.S. 138, 142 (1984).            Finally, the practice of

filing protective claims is no longer necessary.             This is because

the 1984 amendments to the LHWCA make it clear that the limitations

period does not begin to run until a worker knows (or should know)

of the true nature of his condition, i.e., that it interferes with

his employment by impairing his ability to work, and its causal

connection with his employment.          33 U.S.C. § 913(b)(2);       See also

Marathon, 733 F.2d at 1141-42. As this administrative practice has

been outdated for a decade, we do not wish to issue a ruling that


                                     12
would perpetuate this archaic and unnecessary procedure.

     For these reasons, we hold that the protective claims filed in

the instant case enjoy no special status which would exempt them

from the reach of 33 U.S.C. § 919(c).

4. WITHDRAWAL

     The Director related to the district court that if the court

were to rule that the claims must be referred to the OALJ, then

many claimants would likely seek to withdraw13 their claims rather

than bear the expense of, and risk an adverse ruling from, an

administrative hearing at the present time.14       Hence, the Director

argued that should the court rule that Ingalls was entitled to a

prompt hearing, the claimants should be given an opportunity to

move for withdrawal and the Director should be entitled to consider

and act on those motions prior to, and in lieu of, referring the

claims to the OALJ.    The district court, however, did not address

this argument,   but   rather   it   simply   ordered   the   Director   to

     13
      Under the governing regulations, the Director is
authorized to permit such withdrawal, before the adjudication of
a claim, if it is "for a proper purpose and in the claimant's
best interest...." 20 C.F.R. § 702.225(a)(3). Moreover, the
withdrawal is without prejudice to the filing of a later claim,
subject to the time limitations of the LHWCA. 20 C.F.R. §
702.225(c).
     14
      This would be an unsurprising choice, particularly for
those who suffer no current disability and thus only made
protective filings. This is because their only purpose in filing
was to protect against the running of the statute of limitations
should disability later develop. As they are now protected by
the new limitations period, there is little benefit in
maintaining their protective claims. 33 U.S.C. § 913(b)(2);
Marathon, 733 F.2d at 1141-42. Also, as disability may never
develop, they may never have a claim to pursue. Until such time
as they do have a claim to pursue, there is scant reason to wage
this administrative battle.

                                     13
transfer the claims within a reasonable time, not to exceed thirty

days.

     On appeal to this Court, the Director continues to argue that

she should be allowed to consider motions for voluntary withdrawal

filed by the claimants.       Ingalls, however, objects arguing that to

allow the     Director   to   consider      motions   to   withdraw   would   be

contrary to the mandamus order.              Further, Ingalls argues that

withdrawal should not be allowed because Ingalls has joined issue

by its substantive motions.            Lastly, Ingalls contends that the

issue is not properly before the district court.

     We think that this issue was properly before the district

court and should have been addressed.           Our review of this issue is

hampered, however, because the record is not sufficiently developed

on this point.    Nothing in the record discloses when, or even if,

proper motions to withdraw have been filed.            Moreover, the effect

of the district court's mandamus order on the Director's power to

consider motions to withdraw is unclear.          Accordingly, we think it

best to remand this issue to the district court for further

development and explication on this issue.

                                 CONCLUSION

     For the foregoing reasons, we AFFIRM the district court's

issuance of a writ of mandamus compelling the Director to perform

her duty under 33 U.S.C. § 919(c) and order a hearing on the

controverted LHWCA claims in issue. However, we REMAND the case to

allow   the   district   court    to    further   consider     the    issue   of

withdrawal.


                                       14
15
