Anna BARSCZ (Widow of Charles Barscz), Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS AND ELECTRIC BOAT CORPORATION, Respondents.
Docket No. 05-6420-AG.
United States Court of Appeals, Second Circuit.
Argued: Feb. 21, 2007. Decided: May 18, 2007.
484 F.3d 744
Cortorreal argues that, because Booker rendered the Guidelines advisory, it implicitly lowered the sentencing range applicable to his case, and, thus, constituted sufficient reason for relief under Section 3582(c)(2). We have not yet addressed whether the decision in Booker can serve as the basis for a motion to reduce a sentence pursuant to Section 3582(c)(2). However, those courts that have addressed the issue have determined that, although Booker affected the application of the Guidelines, because the decision was not a guideline amendment promulgated by the Sentencing Commission, the terms of Section 3582(c)(2) did not apply. See, e.g., United States v. Price, 438 F.3d 1005, 1007 (10th Cir.2006); United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005) (”Booker is a Supreme Court decision, not a retroactively applicable guideline amendment by the Sentencing Commission. Therefore, Booker is inapplicable to § 3582(c)(2) motions.“). We follow our sister circuits in holding that, because Booker was not a guideline amendment promulgated by the Sentencing Commission, the terms of
Finally, to the extent that Cortorreal sought retroactive application of Booker to his case, the District Court also properly denied the motion. We have previously determined that Booker does not apply retroactively to cases, such as this one, on collateral review. See Guzman v. United States, 404 F.3d 139, 140 (2d Cir.2005).
For the foregoing reasons, Cortorreal‘s motion to proceed in forma pauperis is DENIED and his appeal is DISMISSED pursuant to
Matthew W. Boyle, (Howard M. Radzely, Solicitor of Labor, Allen H. Feldman, Associate Solicitor, Mark A. Reinhalter, Counsel for Longshore on the brief), United States Department of Labor, Washington, D.C. for Respondent Director, Office of Workers’ Compensation Programs.
Before KEARSE, JOSÉ CABRANES, and KATZMANN, Circuit Judges.
KATZMANN, Circuit Judge.
This case calls on us in principal part to determine whether the entire amount of a state law settlement covering both disability and death benefits may be credited against an award of death benefits under the Longshore and Harbor Workers’ Compensation Act (“Longshoreman‘s Act” or “Act“),
I.
Charles Barscz (“Mr. Barscz“) worked at Electric Boat Corporation (a division of General Dynamics Corporation) (“Electric Boat“) in New London, Connecticut from 1950 through 1978. During his employment he was regularly exposed to asbestos and in November 1978 he was diagnosed with asbestosis. Mr. Barscz sought compensation for his injuries sustained while working for Electric Boat under both the Longshoreman‘s Act and under Connecticut workers’ compensation laws.
On June 21, 1984, Mr. Barscz and his wife Anna Barscz (“Mrs. Barscz“) entered into a settlement agreement (“Settlement“) with Electric Boat and three insurance companies resolving all “past, present and future” state law claims relating to injuries suffered by Mr. Barscz during his employment with Electric Boat. The Settlement covered a variety of injuries to Mr. Barscz including: illness associated with exposure to asbestos; shoulder, back and neck injuries; and hearing loss. It also covered possible claims that Mrs. Barscz had or may have had “by virtue of any exposure which [Mr. Barscz] had to harmful irritants including but not limited to asbestos....”
The insurers agreed to pay “to the claimant” $35,000, of which $5,000 covered the Barsczs’ “attorney‘s fees.” Pursuant to the terms of the Settlement, such payment would be accepted
as a full and final settlement for all compensation for said injury, and for all results upon the claimant past, present and future, and for all claims past, present and future medical, surgical, hospital and incidental expenses and all compensation which may be due to anyone in case of the death of the claimant, to the end that the payment of such sum shall constitute a complete satisfaction of all claims due or to become due at any time in favor of anybody on account of the claimed injury, or on account of any condition in any way resulting out of the said injury, or on account of the death of the claimant.
The Settlement was approved by the Compensation Commissioner for the Second Compensation District on June 27, 1984.
Because ALJ Shatz determined that Mr. Barscz had a partial disability when he contracted asbestosis, Electric Boat was able to obtain the benefit of section 8(f) of the Longshoreman‘s Act. Section 8(f) provides that an employer need only compensate an employee for two years when an employee with an “existing permanent partial disability” sustains a work-related injury that results in a permanent, total disability.
Following Mr. Barscz‘s death, Mrs. Barscz sought death benefits under the Longshoreman‘s Act. In an order dated June 9, 2004 (“June 9 Order“), administrative law judge Colleen A. Geraghty (“ALJ Geraghty“) concluded that because Mr. Barscz‘s “work-related lung disease hastened [his] death,” Mrs. Barscz was entitled to death benefits. Further, ALJ Geraghty determined that because the elements of 8(f) had been satisfied and Electric Boat had covered the first 104 weeks of Mr. Barscz‘s disability claim, the Special Fund was responsible for paying Mrs. Barscz‘s death benefits.
Electric Boat moved for reconsideration of the June 9 Order, and for the first time, raised the existence of the Settlement. It argued that under section 3(e) of the Act (“Section 3(e)“) $30,000 should be credited against the Special Fund‘s liability to Mrs. Barscz for death benefits. Section 3(e) provides that “[n]otwithstanding any other provision of law, any amounts paid to an employee for the same injury, disability, or death for which benefits are claimed under this chapter pursuant to any other workers’ compensation law or [the Jones Act] shall be credited against any liability im
ALJ Geraghty granted the motion and modified her original order to reflect a credit for the entire amount of the Settlement. She acknowledged that disability and death benefits are separate claims under the Act but noted that Mrs. Barscz had signed the Settlement, which specifically mentioned death benefits and concluded that “[u]nder these circumstances, it is appropriate to permit a credit against the death and survivor benefits due under the Act for the amounts received in settlement of the State claim for death or survivor benefits.” Turning to the question of what portion of the Settlement to credit against the death benefits, ALJ Geraghty concluded that under prior Board decisions, because the Settlement resolved multiple claims and the record did not establish how the settlement funds were to be apportioned the “employers and the Special Fund are entitled to offset the entire amount paid to the parties under the State settlement.” While conceding that this was a “harsh” result, she noted that claimants were in the best position “to ensure that the settlement agreement specifically apportions the amounts paid in settlement among the various claims.”
The Director of the Office of Workers’ Compensation Programs (“Director“) appealed the ALJ‘s decision to the Board.2 Because any death benefits would be paid by the Special Fund, the Director was an interested party in both Mrs. Barscz‘s original claim for death benefits and in Electric Boat‘s motion for reconsideration, but had not appeared in either proceeding. On appeal, the Director argued that the burden of proving the apportionment of the Settlement should have been placed on Electric Boat, not Mrs. Barscz, and that placing the burden on Mrs. Barscz was inconsistent with the Supreme Court‘s holding in Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994), that under the Administrative Procedure Act (“APA“) a proponent of a rule or order bears the burden of proof.
In a decision and order dated September 29, 2005, a two-member majority of the Board affirmed ALJ Geraghty‘s decision. The Board focused its analysis on the language of Section 3(e), which the Board read to provide that an amount paid to an employee for a state claim “offsets any liability the employer has under the [Longshoreman‘s] Act that is related to that same injury, disability or death.” (emphasis in original). Based on that language, which it viewed as “quite expansive,” the Board held that “in the absence of specific evidence of the apportionment of a state settlement ... [the] employer is entitled to a credit for the amount of the state benefits paid.” The Board‘s decision did not address the question of the burden of proof.
One member of the Board dissented. The dissent emphasized that Section 3(e) credit is given for “amounts paid for the same injury, disability or death for which benefits are claimed.” (emphasis in original). In the dissent‘s view the use of the present tense of claim was highly significant and signaled that the credit could only be taken for state funds paid for the same injury or death currently being claimed under the Act. Based on that read
Mrs. Barscz appealed the Board‘s decision on November 23, 2005. The Director moved to dismiss the appeal as untimely, but that motion was denied on July 19, 2006. Barscz v. Dir., OWCP, No. 05-6420 (2d Cir. July 19, 2006) (order denying motion to dismiss).
II.
In reviewing a decision of the Board, our review is limited to whether the Board made any errors of law and whether the findings of fact of the ALJ are supported by substantial evidence. Uzdavines v. Weeks Marine, Inc., 418 F.3d 138, 143 (2d Cir.2005). Our review of questions of law is de novo, while mixed questions of law and fact are reviewed either de novo or under the clearly erroneous standard “depending on whether the question is predominately legal or factual.” Id. (quoting from United States v. Selioutsky, 409 F.3d 114, 119 (2d Cir.2005)).
A. Does Section 3(e) Allow the Entire State Settlement To Be Credited Against the Death Benefits Award?
The principal question presented is one of statutory interpretation: Whether Section 3(e) of the Longshoreman‘s Act allows the entire amount of the Settlement, which both parties concede covered both disability and death claims, to be credited against Mrs. Barscz‘s death benefits. We begin our inquiry with the text of the statute; if it is plain on its face, that is, if it is unambiguous, our inquiry usually ends. Whether statutory language is ambiguous is determined by “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997).
Section 3(e) limits the credit that can be taken to “any amounts paid ... for the same injury, disability, or death for which benefits are claimed under this chapter.”
The Board reads Section 3(e) differently, rejecting any distinction between the death benefits being claimed by Mrs. Barscz and the disability benefits that had previously been claimed by Mr. Barscz: “In isolation, it is true that claimant herein sought only death benefits. However, when decedent was alive, he claimed, and was awarded, disability benefits under the Act. The two cases are integral in that they are both related to the same injury....” As the Board‘s own opinion makes evident, to sustain its interpretation of Section 3(e) the Board was compelled to read the words “are claimed” as including both the present tense and the past tense of the verb “claim” despite the fact that when given their plain meaning, the words refer only to the present tense. The
While our analysis could rest on the text of the statute alone, there are three other reasons we adopt our reading of Section 3(e) and not the one adopted by the Board. First, Section 3(e) lists “injury, disability, or death” in the disjunctive, signifying a distinction among the three.
Second, our reading is supported by Section 3(e)‘s legislative history. Congress passed Section 3(e) to overrule United Brands Co. v. Melson, 594 F.2d 1068 (5th Cir.1979), a Fifth Circuit decision that read the Longshoreman‘s Act to allow an employee to recover for the same heart attack for which he had already received compensation in a state proceeding. In Melson, the employee sought compensation from different employers in the state and federal actions; the issue was not that one employer had been made to pay twice but that a single claimant had recovered twice for the same injury. Id. at 1075. The Fifth Circuit began its discussion by noting that there was nothing in the Longshoreman‘s Act that allowed an employer to have its liability offset by compensation received for the same event under state law. Id. It then asked whether “any overriding policy” required that the federal award be reduced. Id. The Fifth Circuit reasoned that because the claimant was seeking compensation from two different employers, either the employer who was liable under the Longshoreman‘s Act or the claimant would receive “a windfall” and that “[u]ntil Congress is moved by this unusual situation, we think that the solution to this difficult problem is to allow the windfall of double recovery to reside with the injured worker.” Id.
It was this windfall to claimants that Congress sought to overrule in adding Section 3(e) to the Longshoreman‘s Act. See 130 Cong. Rec. 8326 (“[T]he offset is intended to apply where the employee‘s non-Longshore claim is against an employer other than the one against whom he has filed a Longshore claim. Accordingly, the court‘s decision on this point in Melson ...
Third, our reading is consistent with how other circuits have applied an analogous section of the Act which also addresses the problem of double-recovery.
In sum, we hold that Section 3(e) limits the credit that can be taken to amounts paid for the same injury, death or disability currently being claimed under the Longshoreman‘s Act.7 The Board erred
B. Who Bears the Burden of Proof on Allocation of the State Settlement?
The adjudicative procedures for claims brought under the Longshoreman‘s Act are governed by the APA.
It is beyond cavil that when a party bears the burden of proof, it bears that burden for each element of its claim. As we have explained, it is a necessary element of the Section 3(e) credit that the amount paid to the employee or their survivor be for the same injury claimed. Thus the burden of proof on the issue of allocation lies with the party seeking the credit, Electric Boat.9
Placing the burden of proof on the proponent of the Section 3(e) credit is consistent with how courts have applied section 33(f), a section of the Longshoreman‘s Act which we have already noted is analogous
For the reasons stated above, we hold that in applying Section 3(e) the burden of proof lies on the party that seeks to apply the credit. On remand Electric Boat will bear the burden of proof on the allocation of the Settlement.
III.
For the reasons set forth above, we hold that under Section 3(e) only the portion of the Settlement that covered Mrs. Barscz‘s state law death claims may be credited against her Longshoreman‘s Act death benefits. Further, we hold that on remand, the party claiming the Section 3(e) credit, Electric Boat, bears the burden of proof in establishing the apportionment of the Settlement. The September 29, 2005 decision and order of the Board is REVERSED, and we REMAND for further proceedings consistent with this Opinion.
Jeffrey STEIN, Mark Watson, Philip Wiesner, Randall Bickham, Larry DeLap, Jeffrey Eischeid, David Greenberg, Steven Gremminger, Carl Hasting, John Lanning, John Larson, Robert Pfaff, Gregg Ritchie, Richard Rosenthal, Richard Smith, and Carol G. Warley, Plaintiffs-Appellees, v. KPMG, LLP, Defendant-Appellant.
Docket No. 06-4358-cv.
United States Court of Appeals, Second Circuit.
Argued: Nov. 21, 2006. Decided: May 23, 2007.