AUTHORITY: 5 U.S.C. 301; Reorganization Plan No. 6 of 1950,
15 FR 3174; 33 U.S.C. 901 et seq.; 30 U.S.C. 901 et
seq.; Secretary of Labor's Order 38-72, 38 FR 90, January 3,
1973.
SOURCE: 52 FR 27292, July 20, 1987, unless otherwise noted.
(a) The purpose of Part 802 is to establish the rules of
practice and procedure governing the operation of the Benefits
Review Board.
(b) Except as otherwise provided, the rules promulgated in
this part apply to all appeals taken by any party from decisions
or orders with respect to claims for compensation or benefits
under the following Acts:
(1) The Longshore and Harbor Workers' Compensation Act
(LHWCA), 33 U.S.C. 901 et seq.;
(2) The Defense Base Act (DBA), 42 U.S.C. 1651 et seq.;
(3) The District of Columbia Workmen's Compensation Act
(DCWCA), 36 D.C. Code 501 et seq. (1973);
(4) The Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C.
1331 et seq.;
(5) The Nonappropriated Fund Instrumentalities Act (NFIA), 5
U.S.C. 8171 et seq.;
(6) Title IV, Section 415 and Part C of the Federal Mine
Safety and Health Act of 1977, Pub. L. 95-164, 91 Stat. 1290
(formerly the FCMHSA of 1969), as amended by the Black Lung
Benefits Reform Act of 1977, Pub. L. 95-239, 92 Stat. 95, the
Black Lung Benefits Revenue Act of 1977, Pub. L. 95-229, 92 Stat.
11, and the Black Lung Benefits Amendments of 1981, Pub. L.
97-119, 95 Stat. 1643 (30 U.S.C. 901 et seq.).
Part 801 of this chapter VII sets forth rules of general
applicability covering the composition, authority, and operation
of the Benefits Review Board and definitions applicable to this
chapter. The provisions of Part 801 of this chapter are fully
applicable to this Part 802.
(a) Conduct of proceedings. Pursuant to section 27(a) of the
LHWCA, the Board shall have power to preserve and enforce order
during any proceedings for determination or adjudication of
entitlement to compensation or benefits or for liability for
payment thereof, and to do all things in accordance with law
which may be necessary to enable the Board to effectively
discharge its duties.
(b) Contumacy. Pursuant to section 27(b) of the LHWCA, if any
person in proceedings before the Board disobeys or resists any
lawful order or process, or misbehaves during a hearing or so
near the place thereof as to obstruct the same, the Board shall
certify the facts to the Federal district court having
jurisdiction in the place in which it is sitting (or to the U.S.
District Court for the District of Columbia if it is sitting in
the District) which shall thereupon in a summary manner hear the
evidence as to the acts complained of, and if the evidence so
warrants, punish such person in the same manner and to the same
extent as for a contempt committed before the court, or commit
such person upon the same conditions as if the doing of the
forbidden act had occurred with reference to the process or in
the presence of the court.
(a) Cases may, in the sole discretion of the Board, be
consolidated for purposes of an appeal upon the motion of any
party or upon the Board's own motion where there exist common
parties, common questions of law or fact or both, or in such
other circumstances as justice and the administration of the Acts
require.
(b) Upon its own motion, or upon motion of any party, the
Board may, for good cause, order any proceeding severed with
respect to some or all issues or parties.
(a) As provided in section 14(f) of the LHWCA and sections 415
and 422 of the Black Lung Benefits Act, the payment of the
amounts required by an award of compensation or benefits shall
not be stayed or in any way delayed beyond ten days after it
becomes due pending final decision in any proceeding before the
Board unless so ordered by the Board. No stay shall be issued
unless irreparable injury would otherwise ensue to the employer,
coal mine operator or insurance carrier. Any order of the Board
permitting any stay shall contain a specific finding, based upon
evidence submitted to the Board and identified by reference
thereto, that irreparable injury would result to such employer,
operator or insurance carrier, and specify the nature and extent
of the injury.
(b) When circumstances require, the Board, in its discretion,
may issue a temporary order not to exceed 30 days granting a
motion for stay of payment prior to the expiration of the ten-day
period allowed for filing responses to motions pursuant to §
802.219(e). Following receipt of a response to the motion or
expiration of the response time provided in § 802.219(e),
the Board will issue a subsequent order ruling on the motion for
stay of payment.
[52 FR 27292, July 20, 1987, as amended at 53 FR 16519, May 9,
1988]
(a) A party. (1) Any party or party-in-interest adversely
affected or aggrieved by a decision or order issued pursuant to
one of the Acts over which the Board has appellate jurisdiction
may appeal a decision or order of an administrative law judge or
deputy commissioner to the Board by filing a notice of appeal
pursuant to this subpart. (See § 802.205(b) and (c) for
exceptions to this general rule.) A party who files a notice of
appeal shall be deemed the petitioner. The Director, OWCP, when
acting as a representative of the Special Fund established under
the Longshore and Harbor Workers' Compensation Act or the Black
Lung Disability Trust Fund established by the Black Lung Benefits
Act, or, when appealing a decision or order which affects the
administration of one of the Acts, shall be considered a party
adversely affected.
(2) When a decision or order is favorable to a party (i.e.,
the prevailing party), the prevailing party may file a
cross-appeal pursuant to § 802.205(b) to challenge any
adverse findings of fact or conclusions of law in the same
proceeding.
(b) Representative parties. In the event that a party has not
attained the age of 18, is not mentally competent, or is
physically unable to file and pursue or defend an appeal, the
Board may permit any legally appointed guardian, committee, or
other appropriate representative to file and pursue or defend the
appeal, or it may in its discretion appoint such representative
for purposes of the appeal. The Board may require any legally
appointed representative to submit evidence of that person's
authority.
(a) Appearances. Any party or intervenor or any representative
duly authorized pursuant to § 802.201(b) may appear before
and/or submit written argument to the Board by attorney or any
other person, including any representative of an employee
organization, duly authorized pursuant to paragraph (d)(2) of
this section.
(b) Any individual petitioner or respondent or his duly
authorized representative pursuant to § 802.201(b) or an
officer of any corporate party or a member of any partnership or
joint venture which is a party may participate in the appeal on
his or her own behalf, or on behalf of such business entity.
(c) For each instance in which appearance before the Board is
made by an attorney or duly authorized person other than the
party or his legal guardian, committee, or representative, there
shall be filed with the Board a notice of appearance. Any
attorney or other duly authorized person of record who intends to
withdraw from representation shall file prior written notice of
intent to withdraw from representation of a party or of
substitution of counsel or other representative.
(d) Qualifications--(1) Attorneys. An attorney at law who is
admitted to practice before the Federal courts or before the
highest court of any State, the District of Columbia, or any
territory or commonwealth of the United States, may practice
before the Board unless he or she has been disqualified from
representing claimants under the Act pursuant to 33 U.S.C.
931(b)(2)(C), or unless authority to appear has been denied
pursuant to § 802.202(e)(1) and (3). An attorney's own
representation that he or she is in good standing before any of
such courts shall be sufficient proof thereof, unless otherwise
ordered by the Board.
(2) Persons not attorneys. Any person who is not an attorney
at law may be admitted to appear in a representative capacity
unless he or she has been disqualified from representing
claimants under the Act pursuant to 33 U.S.C. 931(b)(2)(C). An
application by a person not an attorney at law for admission to
appear in a proceeding shall be submitted in writing to the Board
at the time such person's appearance is entered. The application
shall state such person's name, address, telephone number,
general education, any special training or experience in claims
representation, and such person's relationship, if any, to the
party being represented. The Board may, at any time, make further
inquiry as to the qualification or ability of such person to
render assistance. In the event of a failure to make application
for admission to appear, the Board shall issue an order to show
cause why admission to appear should not be denied. Admission to
appear in a particular case shall not be deemed a blanket
authorization to appear in other cases.
(e) Denial of authority to appear.--(1) Attorneys. The Board
may deny the privilege of appearing to any attorney, within
applicable statutory constraints, e.g., 5 U.S.C. 555, who has
been disbarred or suspended from the practice of law; who has
surrendered his or her license while under investigation or under
threat of disciplinary action; or who, after notice of an
opportunity for hearing in the matter is found by the Board to
have engaged in any conduct which would result in the loss of his
or her license. No provision hereof shall apply to any attorney
who appears on his or her own behalf.
(2) Persons not attorneys. The Board may deny the privilege of
appearing to any person who, in the Board's judgment, lacks
sufficient qualification or ability to render assistance. No
provision hereof shall apply to any person who appears on his or
her own behalf.
(3) Denial of authority to appear may be considered, after
notice of and opportunity for a hearing, by the panel
(constituted pursuant to § 801.301) which is assigned to
decide the appeal in which the attorney or other person has
entered an appearance. If such proceeding reveals facts
suggesting that one of the circumstances described in 33 U.S.C.
931(b)(2)(C) exists, the Board shall refer that information to
the Director, OWCP, for further proceedings pursuant to 33 U.S.C.
931(b)(2)(C) and 907(j). An attorney or other person may appeal a
panel's decision to deny authority to appear to the entire
permanent Board sitting en banc.
[52 FR 27292, July 20, 1987, as amended at 53 FR 16519, May 9,
1988]
(a) No fee for services rendered on behalf of a claimant in
the successful pursuit or successful defense of an appeal shall
be valid unless approved pursuant to 33 U.S.C. 928, as
amended.
(b) All fees for services rendered in the successful pursuit
or successful defense of an appeal on behalf of a claimant shall
be subject to the provisions and prohibitions contained in 33
U.S.C. 928, as amended.
(c) Within 60 days of the issuance of a decision or
non-interlocutory order by the Board, counsel or, where
appropriate, representative for any claimant who has prevailed on
appeal before the Board may file an application with the Board
for a fee. Where the Board remands the case and the
administrative law judge on remand issues an award, a fee
petition may be filed within 60 days of the decision on remand.
In the event that a claimant who was unsuccessful before the
Board prevails on appeal to the court of appeals, his or her
representative may within 60 days of issuance of the court's
judgment file a fee application with the Board for services
performed before the Board.
(d) A fee application shall include only time spent on
services performed while the appeal was pending before the Board
and shall be complete in all respects, containing all of the
following specific information:
(1) A complete statement of the extent and character of the
necessary work done;
(2) The professional status of each person for whom a fee is
claimed who performed services on behalf of the claimant (if such
professional status is other than attorney, a definition of the
professional status of such individual must be included in the
fee petition, including a statment of that individual's
professional training, education and experience) and a statement
that the attorney was a member in good standing of a state bar at
the time the services were performed;
(3) The number of hours, in 1/4 hour increments, devoted by
each person who performed services on behalf of the claimant and
the dates on which such services were performed in each category
of work;
(4) The normal billing rate for each person who performed
services on behalf of the claimant. The rate awarded by the Board
shall be based on what is reasonable and customary in the area
where the services were rendered for a person of that particular
professional status.
(e) Any fee approved shall be reasonably commensurate with the
necessary work done and shall take into account the quality of
the representation, the complexity of the legal issues involved,
the amount of benefits awarded, and, when the fee is to be
assessed against the claimant, shall also take into account the
financial circumstances of the claimant. A fee shall not
necessarily be computed by multiplying time devoted to work by an
hourly rate.
(f) No contract pertaining to the amount of a fee shall be
recognized.
(g) A fee application shall be served on all other parties and
accompanied by a certificate of service. The Board will not take
action on the fee application until such service is effected. Any
party may respond to the application within 10 days of receipt of
the application. The response shall be filed with the Board and
served on all other parties.
Any notice of appeal shall be sent by mail or otherwise
presented to the Clerk of the Board at 800 K Street, NW., suite
500, Washington, DC 20001-8001. A copy shall be served on the
deputy commissioner who filed the decision or order being
appealed and on all other parties by the party who files a notice
of appeal. Proof of service of the notice of appeal on the deputy
commissioner and other parties shall be included with the notice
of appeal.
[52 FR 27292, July 20, 1987, as amended at 56 FR 54538, Oct. 22,
1991]
(a) A notice of appeal, other than a cross-appeal, must be
filed within 30 days from the date upon which a decision or order
has been filed in the Office of the Deputy Commissioner pursuant
to section 19(e) of the LHWCA or in such other office as may be
established in the future (see §§ 702.349 and 725.478
of this title).
(b) If a timely notice of appeal is filed by a party, any
other party may initiate a cross-appeal by filing a notice of
appeal within 14 days of the date on which the first notice of
appeal was filed, or within the time prescribed by paragraph (a)
of this section, whichever period last expires. In the event that
such other party was not properly served with the first notice of
appeal, such party may initiate a cross-appeal by filing a notice
of appeal within 14 days of the date that service is effected.
(c) Failure to file within the period specified in paragraph
(a) or (b) of this section (whichever is applicable) shall
foreclose all rights to review by the Board with respect to the
case or matter in question. Any untimely appeal will be summarily
dismissed by the Board for lack of jurisdiction.
(a) A timely motion for reconsideration of a decision or order
of an administrative law judge or deputy commissioner shall
suspend the running of the time for filing a notice of appeal.
(b)(1) In a case involving a claim filed under the Longshore
and Harbor Workers' Compensation Act or its extensions (see
§ 802.101(b)(1)-(5)), a timely motion for reconsideration
for purposes of paragraph (a) of this section is one which is
filed not later than 10 days from the date the decision or order
was filed in the Office of the Deputy Commissioner.
(2) In a case involving a claim filed under title IV of the
Federal Mine Safety and Health Act, as amended (see §
802.101(b)(6)), a timely motion for reconsideration for purposes
of paragraph (a) of this section is one which is filed not later
than 30 days from the date the decision or order was served on
all parties by the administrative law judge and considered filed
in the Office of the Deputy Commissioner (see §§
725.478 and 725.479(b), (c) of this title).
(c) If the motion for reconsideration is sent by mail and the
fixing of the date of delivery as the date of filing would result
in a loss or impairment of reconsideration rights, it will be
considered to have been filed as of the date of mailing. The date
appearing on the U.S. Postal Service postmark (when available and
legible) shall be prima facie evidence of the date of mailing. If
there is no such postmark or it is not legible, other evidence
such as, but not limited to, certified mail receipts,
certificates of service and affidavits may also be used to
establish the mailing date.
(d) If a motion for reconsideration is granted, the full time
for filing an appeal commences on the date the subsequent
decision or order on reconsideration is filed as provided in
§ 802.205.
(e) If a motion for reconsideration is denied, the full time
for filing an appeal commences on the date the order denying
reconsideration is filed as provided in § 802.205.
(f) If a timely motion for reconsideration of a decision or
order of an administrative law judge or deputy commissioner is
filed, any appeal to the Board, whether filed prior to or
subsequent to the filing of the timely motion for
reconsideration, shall be dismissed without prejudice as
premature. Following decision by the administrative law judge or
deputy commissioner pursuant to either paragraph (d) or (e) of
this section, a new notice of appeal shall be filed with the
Clerk of the Board by any party who wishes to appeal. During the
pendency of an appeal to the Board, any party having knowledge
that a motion for reconsideration of a decision or order of an
administrative law judge or deputy commissioner has been filed
shall notify the Board of such filing.
(a) Date of receipt. (1) Except as otherwise provided in this
section, a notice of appeal is considered to have been filed only
as of the date it is received in the office of the Clerk of the
Board.
(2) Notices of appeal submitted to any other agency or
subdivision of the Department of Labor or of the U.S. Government
or any State government shall be promptly forwarded to the office
of the Clerk of the Board. The notice shall be considered filed
with the Clerk of the Board as of the date it was received by the
other governmental unit if the Board finds that it is in the
interest of justice to do so.
(b) Date of mailing. If the notice of appeal is sent by mail
and the fixing of the date of delivery as the date of filing
would result in a loss or impairment of appeal rights, it will be
considered to have been filed as of the date of mailing. The date
appearing on the U.S. Postal Service postmark (when available and
legible) shall be prima facie evidence of the date of mailing. If
there is no such postmark or it is not legible, other evidence,
such as, but not limited to, certified mail receipts, certificate
of service and affidavits, may be used to establish the mailing
date.
(a) A notice of appeal shall contain the following
information:
(1) The full name and address of the pettioner;
(2) The full name of the injured, disabled, or deceased
employee;
(3) The full names and addresses of all other parties,
including, among others, beneficiaries, employers, coal mine
operators, and insurance carriers where appropriate;
(4) The case file number which appears on the decision or
order of the administrative law judge;
(5) The claimant's OWCP file number;
(6) The date of filing of the decision or order being
appealed;
(7) Whether a motion for reconsideration of the decision or
order of the administrative law judge has been filed by any
party, the date such motion was filed, and whether the
administrative law judge has acted on such motion for
reconsideration (see § 802.206);
(8) The name and address of the attorney or other person, if
any, who is representing the petitioner.
(b) Paragraph (a) of this section notwithstanding, any written
communication which reasonably permits identification of the
decision from which an appeal is sought and the parties affected
or aggrieved thereby, shall be sufficient notice for purposes of
§ 802.205.
(c) In the event that identification of the case is not
possible from the information submitted, the Clerk of the Board
shall so notify the petitioner and shall give the petitioner a
reasonable time to produce sufficient information to permit
identification of the case. For purposes of § 802.205, the
notice shall be deemed to have been filed as of the date the
insufficient information was received.
Upon receipt of a copy of the notice of appeal or upon request
of the Board, the deputy commissioner or other office having
custody of such record shall immediately forward to the Clerk of
the Board the official record of the case, which record includes
the transcript or transcripts of all formal proceedings with
exhibits, all decisions and orders rendered in the case.
Upon receipt by the Board of a notice of appeal, the Clerk of
the Board shall as expeditiously as possible notify the
petitioner and all other parties and the Solicitor of Labor, in
writing, that a notice of appeal has been filed.
(a) Within 30 days after the receipt of an acknowledgment of a
notice of appeal issued pursuant to § 802.210, the
petitioner shall submit a petition for review to the Board which
petition lists the specific issues to be considered on appeal.
(b) Each petition for review shall be accompanied by a
supporting brief, memorandum of law or other statement which:
Specifically states the issues to be considered by the Board;
presents, with appropriate headings, an argument with respect to
each issue presented with references to transcripts, pieces of
evidence and other parts of the record to which the petitioner
wishes the Board to refer; a short conclusion stating the precise
result the petitioner seeks on each issue and any authorities
upon which the petition relies to support such proposed result.
The Longshore Desk Book and Black Lung Desk Book are not intended
as final legal authorities and should not be cited or relied upon
as such.
(c) Copies of the petition for review and accompanying
documents must be served upon all parties and the Solicitor of
Labor.
(d) Failure to submit a petition for review and brief within
the 30-day period or to comply with any part of this section may,
in the discretion of the Board, cause the appeal to be deemed
abandoned (see § 802.402).
(e) When a party appears pro se the Board may, in its
discretion, waive formal compliance with the requirements of this
section and may, depending upon the particular circumstances,
prescribe an alternate method of furnishing such information as
may be necessary for the Board to decide the merits of any such
appeal.
(a) Within 30 days after the receipt of a petition for review,
each party upon whom it was served may submit to the Board a
brief, memorandum, or other statement in response to it.
(b) Arguments in response briefs shall be limited to those
which respond to arguments raised in petitioner's brief and to
those in support of the decision below. Other arguments will not
be considered by the Board (see § 802.205(b)).
(a) Within 20 days after the receipt of a brief, memorandum,
or statement submitted in response to the petition for review
pursuant to § 802.212, any party upon whom it was served may
file a brief, memorandum, or other statement in reply to it.
(b) Arguments in reply briefs shall be limited to those which
reply to arguments made in the response brief. Any other
arguments in a reply brief will not be considered by the Board.
(a) If a person or legal entity shows in a written petition to
intervene that his, her, or its rights are affected by any
proceeding before the Board, the Board may permit that person or
legal entity to intervene in the proceeding and to participate
within limits prescribed by the Board.
(b) The petition to intervene shall state precisely:
(1) The rights affected, and
(2) The nature of any argument the person or legal entity
intends to make.
(a) All papers filed with the Board, including notices of
appeal, petitions for review, briefs and motions, shall be
secured at the top and shall have a caption, title, signature of
the party (or his attorney or other representative), date of
signature, and certificate of service.
(b) For each paper filed with the Board, the original and two
legible copies shall be submitted.
(c) A copy of any paper filed with the Board shall be served
on each party and the Solicitor of Labor, by the party submitting
the paper.
(d) Any paper required to be given or served to or by the
Board or any party shall be served by mail or otherwise
presented. All such papers served shall be accompanied by a
certificate of service.
(e) All papers (exclusive of documentary evidence) submitted
to the Benefits Review Board shall conform to standard letter
dimensions (8.5x11 inches).
(a) The time periods specified for submitting papers described
in this part, except that for submitting a notice of appeal, may
be enlarged for a reasonable period when in the judgment of the
Board an enlargement is warranted.
(b) Any request for an enlargement of time pursuant to this
section shall be directed to the Clerk of the Board and must be
received by the Clerk on or prior to the date on which the paper
is due.
(c) Any request for an enlargement of time pursuant to this
section shall be submitted in writing in the form of a motion,
shall specify the reasons for the request, and shall specify the
date to which an enlargement of time is requested.
(d) Absent exceptional circumstances, no more than one
enlargement of time shall be granted to each party.
(e) Absent a timely request for an enlargement of time
pursuant to this section and the Board's granting that request,
any paper submitted to the Board outside the applicable time
period specified in this part shall be accompanied by a separate
motion stating the reasons therefor and requesting that the Board
accept the paper although filed out of time.
(f) When a paper filed out of time is accepted by the Board,
the time for filing a response shall begin to run from the date
of a party's receipt of the Board's order disposing of the motion
referred to in paragraph (e) of this section.
(a) Failure to file any paper when due pursuant to this part,
may, in the discretion of the Board, constitute a waiver of the
right to further participation in the proceedings.
(b) When a petition for review and brief has not been
submitted to the Board within the time limitation prescribed by
§ 802.211, or within an enlarged time limitation granted
pursuant to § 802.217, the petitioner shall be ordered to
show cause to the Board why his or her appeal should not be
dismissed pursuant to § 802.402.
(a) An application to the Board for an order shall be by
motion in writing. A motion shall state with particularity the
grounds therefor and shall set forth the relief or order
sought.
(b) A motion shall be a separate document and shall not be
incorporated in the text of any other paper filed with the Board,
except for a statement in support of the motion. If this
paragraph is not complied with, the Board will not consider and
dispose of the motion.
(c) If there is no objection to a motion in whole or in part
by another party to the case, the absence of an objection shall
be stated on the motion.
(d) The rules applicable to service and form of papers, §
802.216, shall apply to all motions.
(e) Within 10 days of the receipt of a copy of a motion, a
party may file a written response with the Board.
(f) As expeditiously as possible following receipt of a
response to a motion or expiration of the response time provided
in paragraph (e) of this section, the Board shall issue a
dispositive order.
(g) Orders granted by Clerk. The Clerk of the Board may enter
orders on behalf of the Board in procedural matters, including
but not limited to:
(1) First motions for extensions of time for filing briefs and
any papers other than notices of appeal or cross-appeal;
(2) Motions for voluntary dismissals of appeals;
(3) Orders to show cause why appeals should not be dismissed
for failure to timely file a petition for review and brief (see
§ 802.218(b)); and
(4) Unopposed motions which are ordinarily granted as of
course, except that the Clerk may, in his or her discretion,
refer such motions for disposition to a motions panel as provided
by paragraph (h) of this section.
(h) All other motions. All other motions will be referred for
disposition to a panel of three members constituted pursuant to
§ 801.301. Any member may request that any motion be
considered by the entire permanent Board en banc except as
provided in § 801.301(d).
(i) Reconsideration of orders. Any party adversely effected by
any interlocutory order issued under paragraph (g) or (h) may
file a motion to reconsider, vacate or modify the order within 10
days from its filing, stating the grounds for such request. Any
motion for reconsideration, vacation or modification of an
interlocutory order shall be referred to a three-member panel
that may include any member who previously acted on the matter.
Suggestions for en banc reconsideration of interlocutory orders
shall not be accepted. Reconsideration of all other orders will
be treated under § 802.407 of this part.
A party to an appeal who is not represented by an attorney
shall comply with the procedural requirements contained in this
part, except as otherwise specifically provided in §
802.211(e). In its discretion, the Board may prescribe additional
informal procedures to be followed by such party.
(a) In computing any period of time prescribed or allowed by
these rules, by direction of the Board, or by any applicable
statute which does not provide otherwise, the day from which the
designated period of time begins to run shall not be included.
The last day of the period so computed shall be included, unless
it is a Saturday, Sunday, or legal holiday, in which event the
period runs until the end of the next day which is not a
Saturday, Sunday, or legal holiday.
(b) Whenever a paper is served on the Board or on any party by
mail, paragraph (a) of this section will be deemed complied with
if the envelope containing the paper is postmarked by the U.S.
Postal Service within the time period allowed, computed as in
paragraph (a) of this section. If there is no such postmark, or
it is not legible, other evidence, such as, but not limited to,
certified mail receipts, certificate of service and affidavits,
may be used to establish the mailing date.
(c) A waiver of the time limitations for filing a paper, other
than a notice of appeal, may be requested by proper motion filed
in accordance with §§ 802.217 and 802.219.
(a) The Benefits Review Board is not empowered to engage in a
de novo proceeding or unrestricted review of a case brought
before it. The Board is authorized to review the findings of fact
and conclusions of law on which the decision or order appealed
from was based. Such findings of fact and conclusions of law may
be set aside only if they are not, in the judgment of the Board,
supported by substantial evidence in the record considered as a
whole or in accordance with law.
(b) Parties shall not submit new evidence to the Board. Any
evidence submitted by a party which is not part of the record
developed at the hearing before the administrative law judge will
be returned without being considered by the Board.
(c) Any party who considers new evidence necessary to the
adjudication of the claim may apply for modification pursuant to
section 22 of the Longshore and Harbor Workers' Compensation Act,
33 U.S.C. 922. A party who files a petition for modification
shall promptly notify the Board of such filing. Upon receipt of
such notification, the Board shall dismiss the case without
prejudice. Should the petition for modification be declined, the
petitioner may file a request for reinstatement of his or her
appeal with the Board within 30 days of the date the petition is
declined. Should the petition for modification be accepted, any
party adversely affected by the decision or order granting or
denying modification may file a new appeal with the Board within
30 days of the date the decision or order on modification is
filed.
[52 FR 27292, July 20, 1987, as amended at 53 FR 16519, May 9,
1988]
(a) Maintenance of dockets. A docket of all proceedings shall
be maintained by the Board. Each proceeding shall be assigned a
number in chronological order upon the date on which a notice of
appeal is received. Correspondence or further applications in
connection with any pending case shall refer to the docket number
of that case.
(b) Inspection of docket; publication of decision. The docket
of the Board shall be open to public inspection. The Board shall
publish its decisions in a form which is readily available for
inspection, and shall allow the public to inspect its decisions
at the permanent location of the Board.
(a) In the event that no oral argument is ordered pursuant to
§ 802.306, the Board shall proceed to review the record of
the case as expeditiously as possible after all briefs,
supporting statements, and other pertinent documents have been
received.
(b) Each case shall be considered in the order in which it
becomes ready for decision, regardless of docket number, although
for good cause shown, upon the filing of a motion to expedite by
a party, the Board may advance the order in which a particular
case is to be considered.
(c) The Board may advance an appeal on the docket on its own
motion if the interests of justice would be served by so doing.
(a) During the pendency of an appeal, but not later than the
expiration of 20 days from the date of receipt of the response
brief provided by § 802.212, any party may request oral
argument. The Board on its own motion may order oral argument at
any time.
(b) A request for oral argument shall be submitted in the form
of a motion, specifying the issues to be argued and justifying
the need for oral argument (see § 802.219).
(c) The party requesting oral argument shall set forth in the
motion suggested dates and alternate cities convenient to the
parties when and where they would be available for oral argument.
As expeditiously as possible after the date upon which a
request for oral argument is received, the Board shall determine
whether the request shall be granted or denied.
(a) In cases where a request for oral argument has been
approved or where oral argument has been ordered, the Board shall
give all parties a minimum of 30 days' notice, in writing, by
mail, of the scope of argument and of the time when, and place
where, oral argument will be held.
(b) Once oral argument has been scheduled by the Board,
continuances shall not be granted except for good cause shown by
a party, such as in cases of extreme hardship or where attendance
of a party or his or her representative is mandated at a
previously scheduled judicial proceeding. Unless the ground for
the request arises thereafter, requests for continuances must be
received by the Board at least 15 days before the scheduled date
of oral argument, must be served upon the other parties and must
specify good cause why the requesting party cannot be available
for oral argument.
(c) The Board may cancel or reschedule oral argument on its
own motion at any time.
(a) Oral argument shall be held in Washington, DC, unless the
Board orders otherwise, and shall be conducted at a time
reasonably convenient to the parties. For good cause shown, the
presiding judge of the panel may, in his or her discretion,
postpone an oral argument to a more convenient time.
(b) The proceedings shall be conducted under the supervision
of the Chairman or, if the Chairman is not on the panel, the
senior judge, who shall regulate all procedural matters arising
during the course of the argument.
(c) Within the discretion of the Board, oral argument shall be
open to the public and may be presented by any party,
representative, or duly authorized attorney. Presentation of oral
argument may be denied by the Board to a party who has not
significantly participated in the appeal prior to oral
argument.
(d) The Board shall determine the scope of any oral argument
presented and shall so inform the parties in its notice
scheduling oral argument pursuant to § 802.307.
(e) The Board in its discretion shall determine the amount of
time allotted to each party for argument and rebuttal.
The unexcused absence of a party or his or her authorized
representative at the time and place set for argument shall not
be the occasion for delay of the proceeding. In such event,
argument on behalf of other parties may be heard and the case
shall be regarded as submitted on the record by the absent party.
The presiding judge may, with the consent of the parties present,
cancel the oral argument and treat the appeal as submitted on the
written record.
(a) At any time prior to the issuance of a decision by the
Board, the petitioner may move that the appeal be dismissed. If
granted, such motion for dismissal shall be granted with
prejudice to the petitioner.
(b) At any time prior to the issuance of a decision by the
Board, any party or representative may move that the appeal be
dismissed.
(a) Upon motion by any party or representative or upon the
Board's own motion, an appeal may be dismissed upon its
abandonment by the party or parties who filed the appeal. Within
the discretion of the Board, a party may be deemed to have
abandoned an appeal if neither the party nor his representative
participates significantly in the review proceedings.
(b) An appeal may be dismissed on the death of a party only if
the record affirmatively shows that there is no person who wishes
to continue the action and whose rights may be prejudiced by
dismissal.
(a) The Board shall issue written decisions as expeditiously
as possible after the completion of review proceedings before the
Board. The transmittal of the decision of the Board shall
indicate the availability of judicial review of the decision
under section 21(c) of the LHWCA when appropriate.
(b) The original of the decision shall be filed with the Clerk
of the Board. A copy of the Board's decision shall be sent by
certified mail or otherwise presented to all parties to the
appeal and the Director. The record on appeal, together with a
transcript of any oral proceedings, any briefs or other papers
filed with the Board, and a copy of the decision shall be
returned to the appropriate deputy commissioner for filing.
(c) Proof of service of Board decisions shall be certified by
the Clerk of the Board or by another employee in the office of
the Clerk of the Board who is authorized to certify proof of
service.
(a) In its decision the Board shall affirm, modify, vacate or
reverse the decision or order appealed from, and may remand the
case for action or proceedings consistent with the decision of
the Board. The consent of the parties shall not be a prerequisite
to a remand ordered by the Board.
(b) In appropriate cases, such as where the issues raised on
appeal have been thoroughly discussed and disposed of in prior
cases by the Board or the courts, or where the findings of fact
and conclusions of law are both correct and adequately discussed,
the Board in its discretion may issue a brief, summary decision
in writing, disposing of the appeal.
(c) In cases which cannot be disposed of as in paragraph (b)
of this section, a full, written decision discussing the issues
and applicable law shall be issued.
(a) By the Board. Where a case is remanded, such additional
proceedings shall be initiated and such other action shall be
taken as is directed by the Board.
(b) By a court. Where a case has been remanded by a court, the
Board may proceed in accordance with the court's mandate to issue
a decision or it may in turn remand the case to an administrative
law judge or deputy commissioner with instructions to take such
action as is ordered by the court and any additional necessary
action.
A decision rendered by the Board pursuant to this subpart
shall become final 60 days after the issuance of such decision
unless a written petition for review praying that the order be
modified or set aside, pursuant to section 21(c) of the LHWCA, is
filed in the appropriate U.S. court of appeals prior to the
expiration of the 60-day period herein described, or unless a
timely request for reconsideration by the Board has been filed as
provided in § 802.407. If a timely request for
reconsideration has been filed, the 60-day period for filing such
petition for review will run from the issuance of the Board's
decision on reconsideration.
(a) Any party-in-interest may, within 30 days from the filing
of a decision or non-interlocutory order by a panel or the Board
pursuant to § 802.403(b), request reconsideration of such
decision by those members who rendered the decision. The panel of
members who heard and decided the appeal will rule on the motion
for reconsideration. If any member of the original panel is
unavailable, the Chariman shall designate a new panel member.
(b) Except as provided in § 801.301(d), a party may,
within 30 days from the filing of a decision or non-interlocutory
order by a panel of the Board pursuant to § 802.403(b),
suggest the appropriateness of reconsideration by the permanent
members sitting en banc. Such suggestion, however, must accompany
a motion for reconsideration directed to the panel which rendered
the decision. The suggestion for reconsideration en banc must be
clearly marked as such.
(c) Except as provided in § 801.301(d), even where no
party has suggested reconsideration en banc, any permanent member
may petition the permanent Board for reconsideration en banc of a
panel decision.
(d) Reconsideration en banc shall be granted upon the
affirmative vote of the majority of permanent members of the
Board. A panel decision shall stand unless vacated or modified by
the concurring vote of at least three permanent members.
(a) In the event that a party requests reconsideration of a
decision or order, he or she shall do so in writing, in the form
of a motion, stating the supporting rationale for the request,
and include any material pertinent to the request.
(b) The request shall be sent by mail, or otherwise presented,
to the Clerk of the Board. Copies shall be served on all other
parties.
(a) Within 60 days after a decision by the Board has been
filed pursuant to § 802.403(b), any party adversely affected
or aggrieved by such decision may file a petition for review with
the appropriate U.S. Court of Appeals pursuant to section 21(c)
of the LHWCA.
(b) The Director, OWCP, as designee of the Secretary of Labor
responsible for the administration and enforcement of the
statutes listed in § 802.101, shall be deemed to be the
proper party on behalf of the Secretary of Labor in all review
proceedings conducted pursuant to section 21(c) of the LHWCA.
The record of a case including the record of proceedings
before the Board shall be transmitted to the appropriate court
pursuant to the rules of such court.