Benefits Review Board and 9th Circuit Lack Jurisdiction for Untimely Appeal After Remand

The Dutra Group, Inc. v. Zaradnick, 2023 WL 332750 (9^th Cir., Jan 20, 2023)

            After remand by the Benefits Review Board, the Administrative Law Judge resolved the remanded issues. More than 30 days lapsed¹ since the date of the ALJ’s determination and The Dutra Group took no action. Any untimely appeal shall be dismissed by the BRB.²

            The BRB summarily dismissed the appeal of The Dutra Group as untimely. The employer then petitioned the Ninth Circuit to review the decision of the BRB. The panel explained that the employer could have timely appealed to the BRB or could have timely taken an appeal to the court of appeals directly from the order of the ALJ on remand within 60 days of the order of the ALJ.³ The panel cited its precedent in Nat'l Steel & Shipbuilding Co., Inc. v. Dir., Off. of Workers’ Comp. Programs (“McGregor”):⁴  “Where the Board has already determined the contested issue in an earlier decision, ‘requiring an appeal to the [Board]’ after the ALJ's remand order ‘would [be] futile; a summary affirmance adhering to a previous ruling in the same case may properly be viewed as a purely ministerial act.’”⁵

            The court of appeals was not swayed by the employer’s argument that it was not aggrieved by the order of the ALJ on remand stating that it was aggrieved by the overall effect of the remand by the BRB. In any event, a timely appeal was not filed with either the BRB or appeals court. The panel was also unpersuaded by the employer’s position that a stipulation between the parties filed with the ALJ discussed appeal to the 9^th Circuit but no mention of an intent to appeal to the BRB. 

            The petition for review was denied.

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¹ 33 U.S.C. § 921(a)

² 2023 WL 332750 at *1 (citing 20 C.F.R. § 802.205(c))

³ 33 U.S.C. § 921(c)

⁴ 703 F.2d 417 (9^th Cir. 1983)

⁵ 2023 WL 332750 at *1