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DI COSTANZO v. WILLARD

September 9, 1958

Philip F. DI COSTANZO, Petitioner,
v.
John H. WILLARD, as Deputy Commissioner of the United States Department of Labor, Bureau of Employees' Compensation, Second Compensation District, Respondent



The opinion of the court was delivered by: ZAVATT

The petitioner has brought this action to review a compensation order made by the respondent in a proceeding under the Longshoremen's and Harbor Workers' Compensation Act, in which the petitioner's client, Ralph Scotto, was claimant, Bull Insular Line, Inc. was the employer, and the Travelers Insurance Company was the insurance carrier. Review of that order is sought insofar as it fixed as the gross sum of $ 175 the fee of this petitioner for the legal services which he had rendered to the claimant. A copy of the order, dated and filed in the office of the Deputy Commissioner on April 10, 1958, is annexed to the petitioner's bill of complaint. The petition in this action was verified on April 15, 1958 and filed in the office of the Clerk of this Court on April 17, 1958. The Longshoremen's and Harbor Workers' Compensation Act provides that a compensation order so filed shall become final at the expiration of the thirtieth day after the date when it was so filed. 33 U.S.C.A § 921. Thus, this action by the petitioner has been timely instituted, if properly brought under § 921, because instituted within thirty days after the date of the filing of the order in the office of the Deputy Commissioner. Mille v. McManigal, 2 Cir., 1934, 69 F.2d 644; Flamm v. Willard, D.C.E.D.N.Y.1954, 125 F.Supp. 932; Montagna v. Norton, D.C.D.N.J.1939, 28 F.Supp. 997; Bulczak v. Independent Pier Co., D.C.E.D.Pa.1937, 17 F.Supp. 973.

The respondent has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. 'on the grounds that there is no genuine issue as to any material fact and that said respondent is entitled to judgment as a matter of law'. It is the contention of the respondent that the court has no jurisdiction to review the amount of petitioner's fees as fixed by the Deputy Commissioner; that the order, insofar as it relates to the legal fees of the petitioner, is not a 'compensation order'; that the petitioner is not a party in interest who is entitled to institute this action under 33 U.S.C.A. § 921(b). Respondent contends in his memorandum that the term 'compensation order' is defined at 33 U.S.C.A. § 919(e). But that section of the Longshoremen's and Harbor Workers' Act does not purport to define 'compensation order'. Rather, it prescribes the procedure in respect of claims, sub-division (e) thereof providing that 'the order rejecting the claim or making the award (referred to in this chapter as a compensation order) shall be filed in the office of the deputy commissioner * * *'. Actually, the term 'compensation order' is not specifically defined in the Longshoremen's and Harbor Workers' Compensation Act. 33 U.S.C.A. § 902.

 In support of his contention that the attorney for the claimant is not a party in interest, respondent cites United States Casualty Co. v. Taylor, 4 Cir., 1933, 64 F.2d 521, certiorari denied 1933, 290 U.S. 639, 54 S. Ct. 56, 78 L. Ed. 555. In that case a workman was injured while engaged in the construction of a new ship that had been launched and was nearly, but not quite, completed. The Deputy Commissioner rejected his claim for compensation on the ground that the construction of a new vessel did not involve a maritime contract and that, therefore, the Longshoremen's and Harbor Workers' Compensation Act did not apply to this workman. On a bill of complaint against the Deputy Commissioner under the provisions of § 921 of Title 33 U.S.C.A., the District Judge decreed that the order of the Deputy Commissioner be reversed and that he proceed to award compensation in the manner provided by the statute. Thereafter, the compensation carrier was granted leave to intervene and brought the case to the Court of Appeals. On the appeal it was contended that the District Court had no power to allow an intervention after the rendition of its final decree and that the casualty company had no such interest in the litigation as entitled it to intervene; that the carrier's interest in the case was not direct and immediate but secondary and consequential. The Court of Appeals for the Fourth Circuit rejected this contention. It construed 33 U.S.C.A. § 921(b) with reference to other sections of the Longshoremen's and Harbor Workers' Compensation Act and concluded that the carrier was an interested person entitled to intervene. By reference to other sections of the act, the Court construed Sections 912(a), 914(a) and 919(d) to have a direct bearing upon the rights and obligations of the insurance carrier, and to contemplate the right of the carrier to be heard in opposition to any compensation claim. It was held that the carrier was clothed with a sufficient interest in the result of such a suit as to be granted permission to intervene as a defendant in a subsequent suit despite the fact that Congress failed to expressly authorize such joinder. The Court was of the view that it should be ready to exercise its discretion 'so that the act may be enforced according to its spirit, and a speedy decision of controverted cases may be accomplished * * *' (64 F.2d 527.) The respondent attempts to draw from the language of the court in the United States Casualty Co. case an inferential holding that persons other than the injured employee, the employer and the carrier are not clothed with a sufficient interest in the result of a suit brought to review a decision of the Deputy Commissioner of the United States Department of Labor under the Longshoremen's and Harbor Workers' Compensation Act. This court is of the opinion that such an inference is fallacious. The court in United States Casualty Co. decided only the question presented to it and nothing more. Furthermore, that case does not even purport to suggest who, other than the claimant, employer and carrier, may bring an action against the Deputy Commissioner under § 921(d).

 The respondent also cites § 31.21(a) of Title 20 of the Code of Federal Regulations, which specifies what parties in interest may be represented before the Deputy Commissioner by persons authorized in writing for such purpose. It provides as follows:

 § '31.21 Representatives of parties in interest and fees for services.

 '(a) Any party in interest, whether claimant, employer or insurance carrier, may be represented before the deputy commissioner by any person previously authorized in writing for such purpose. Any attorney in good standing, admitted to the bar of the State where the compensation proceeding is held, may when so authorized appear as attorney in respect of a claim under said act. * * *'

 The respondent maintains that this language necessarily excludes the attorney for a claimant as a party in interest who may proceed to review any part of a compensation order, under § 921(d). It is the opinion of this Court that this regulation does not purport to define 'party in interest' but merely to specify those parties in interest who may be represented before the Deputy Commissioner by an attorney or by any other person previously authorized in writing for such purpose and that, therefore, it is not determinative of the issue presented on the respondent's motion for summary judgment.

 In Hillman v. O'Hearne, D.C.Md.1955, 129 F.Supp. 217, the attorneys for a claimant, in a proceeding under the Longshoremen's and Harbor Workers' Compensation Act, sought a review of the order of the Deputy Commissioner insofar as it fixed their fees at $ 200 for legal services rendered to the claimant. It does not appear from the reported case under what section of the Longshoremen's and Harbor Workers' Compensation Act the attorneys instituted their proceeding to review the order of the Deputy Commissioner insofar as it related to the matter of legal fees. It would appear that the District Court of Maryland regarded the proceeding as one brought under § 921(b) because the court dismissed the bill for review on the ground that it could not say that the order was contrary to law. And it is to be noted that § 921(b) provides that a compensation order may be suspended or set aside in whole or in part 'If not in accordance with law, * * *' That case stands sub silentio for the proposition that the attorney for a claimant in a compensation proceeding under the Longshoremen's and Harbor Workers' Compensation Act may petition for review of the compensation order of the Deputy Commissioner insofar as it relates to fixing his fee, upon the ground that the order, to that extent, is contrary to law or upon the ground that the Deputy Commissioner has abused his discretion in fixing the amount of the fee. In the opinion of this Court it would be mischievous word playing to find that § 921(b) and § 928 of the Longshoremen's and Harbor Workers' Compensation Act preclude the attorney for the claimant from reviewing the compensation order insofar as it fixes the fees of the attorney for the claimant. This conclusion is fortified by a reading of § 31.21(b) of Title 20 of the Code of Federal Regulations which provides in part as follows:

 '* * * Except where the claimant has been advised that such representation will be rendered gratuitously, the fee approved by the deputy commissioner shall be reasonably commensurate with the actual necessary work performed by such representative, taking into account the capacity in which the representative has appeared, the amount of compensation involved and the circumstances of the claimant.'

 The respondent contends, in effect, that this petitioner has no remedy by which he may review the action of the Deputy Commissioner insofar as it relates to fees. It is the opinion of the Court that this petitioner is entitled to review the action of the respondent, under § 921(b) of the Longshoremen's and Harbor Workers' Act, 33 U.S.C.A. § 921(b), and that he is also entitled to judicial review of the action of this agency under the Administrative Procedure Act. 5 U.S.C.A. § 1009(a) provides as follows:

 'Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.'

 Other subdivisions of 1009 of Title 5 provide in substance that the form of the proceeding for judicial review shall be either the special statutory review proceeding relevant to the subject matter in any court specified by the statute or, in the absence or inadequacy thereof, 'any applicable form of legal action * * * in any court of competent jurisdiction * * *' 5 U.S.C.A. § 1009(b). Subdivision (c) of section 1009 provides:

 'Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review * * *'

 Subdivision (e) of section 1009 provides in substance as to the scope of review by the court. It limits the court's review to a decision as to 'all relevant questions of law' and authorizes the court to hold unlawful and set aside agency action which the court finds to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The purpose of section 1009 has been stated to be to extend the right of judicial review and to enlarge the authority of courts to check illegal and arbitrary administrative action. American President Lines v. Federal Maritime Board, D.C.D.C.1953, 112 F.Supp. 346. Of course, if the court finds that there is a rational basis for the conclusions of the administrative body, then the judicial function is exhausted. American Trucking Ass'ns v. United States, D.C.N.D.Ala.1951, 101 F.Supp. 710, affirmed 1953, 344 U.S. 298, 73 S. Ct. 207, 97 L. Ed. 337. It is the ...


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