In a recent Longshore & Harbor Workers’ Compensation Act (LHWCA) case, Zumwalt v. National Steel & Shipbuilding Co., No. 18-72257 (9th Cir. Dec. 20, 2019) (per curium), the Ninth Circuit affirmed the Benefits Review Board’s (the Board) finding of untimely motion for reconsideration.

Zumwalt v. National Steel & Shipbuilding Co. – Background

In 2006 and 2007, Claimant Zumwalt filed a claim for benefits under the LHWCA and was awarded benefits by the presiding administrative law judge. Following the conclusion of litigation, Zumwalt’s attorneys moved for an award for Section 28 attorney’s fees. The Administrative Law Judge (ALJ) issued a decision awarding Section 28 fees, which was filed in the office of the District Director and served on all parties on September 23, 2016. Claimant’s counsel moved for reconsideration of the ALJ’s decision on October 6, 2016 (13 days later); however, the ALJ denied that motion as untimely under 20 CFR 802.206(b)(1), which requires that motions for reconsideration be filed within ten days of service by the District Director.

The AppealS

Claimant’s counsel appealed to the Benefits Review Board; the Board both dismissed the appeal as untimely and affirmed the ALJ’s decision denying the reconsideration motion as untimely. Claimant’s counsel timely filed a reconsideration with the Board seeking an en banc review of the appeal dismissal. The Board granted the reconsideration and affirmed dismissal of counsel’s appeal as untimely in an en banc decision.

Counsel moved for timely reconsideration a second time, arguing for the first time in the administrative proceeding, that the ALJ’s decision on fees were void under Lucia v. SEC, 138 S.Ct 2044 (2018) because the ALJ was not duly appointed under the Appointments Clause of the United States Constitution. The Board denied counsel’s second reconsideration motion. Counsel appealed to the Ninth Circuit Court of Appeals.

The Ninth Circuit Affirms the Board’s Finding

The Ninth Circuit, in a per curiam opinion, quickly dispatched counsel’s arguments. First, because counsel had not raised the constitutional argument under Lucia, his original petition for review to the Board, he forfeited the issue on appeal. Second, the Ninth Circuit rejected counsel’s argument that 20 CFR 18.32(c) and 18.93 added three days for mail service to the 10-day deadline to file a reconsideration motion. The Ninth Circuit held that the ALJ properly concluded that Board regulations, including 20 CFR 802.206, governed the deadline to file a reconsideration motion, which did not authorize a party to add additional days for mail service to a deadline.