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                                   BRB No. 91-2160

RUTH DOBSON                             )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
TODD PACIFIC SHIPYARDS                  )
CORPORATION                             )    DATE ISSUED:   04/11/1995
                                        )
     and                                )
                                        )
AETNA CASUALTY & SURETY                 )
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order of Alexander Karst, Administrative Law
     Judge, United States Department of Labor.

     Michael A. Jacobson, Seattle, Washington, for claimant.

     Philip B. Grennan (Lee, Smart, Cook, Martin & Patterson, P.S., Inc.),
     Seattle, Washington, for employer/carrier.

     Before:  HALL, Chief Administrative Appeals Judge, BROWN and DOLDER,
     Administrative Appeals Judges.

     PER CURIAM:

     Claimant appeals the Decision and Order (82-LHC-125, 126, 127) of
Administrative Law Judge Alexander Karst rendered on a claim filed pursuant to the
provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33
U.S.C. §901 et seq. (the Act).  We must affirm the findings of fact and
conclusions of law of the administrative law judge which are rational, supported
by substantial evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).

     This is the third time that this case is before the Board.  To recapitulate,
claimant sustained injuries in three work-related incidents occurring on October
15, 1980, October 24, 1980, and March 9, 1981, while working for employer as a
shipscaler.  Specifically, on October 15, 1980, claimant was injured when a pipefitter burst through a steel
door, causing the door to hit her in the head, resulting in head, neck and lower
back pain.  Employer voluntarily paid claimant temporary total disability
compensation from October 19, 1980 through October 21, 1980.  On October 24, 1980,
claimant was injured when she fell over a hose on the deck of a ship, causing
contusions of her neck, back and forehead.  Employer voluntarily paid claimant
temporary total disability compensation from October 24, 1980 until January 21,
1981, when she returned to work.  On March 9, 1981, after carrying heavy sandbags,
claimant became sick and faint in the lunch room, and passed out in the ladies
room.  Employer voluntarily paid claimant temporary total disability compensation
from March 10, 1981 through November 1, 1982. See 33 U.S.C. §908(b). 
Since these injuries, claimant has complained of headaches, confusion,
forgetfulness, numbness in her feet and watery eyes.

     At a formal hearing held on July 15, 1983, Administrative Law Judge Ellin M.
O'Shea accepted the parties' stipulations that the three aforementioned work-related incidents occurred in the course and scope of claimant's employment with
employer. See 1983 Hearing Transcript at 4-6.  In a Decision and Order dated
December 19, 1983, Judge O'Shea awarded claimant temporary total disability
compensation from October 16, 1980 to January 31, 1983, the date of maximum medical
improvement, exclusive of the time that claimant actually worked.  33 U.S.C.
§908(b).  Judge O'Shea found, however, that claimant did not suffer any
permanent disability as a result of these work-related injuries but, rather, that
claimant has a non industrial-related cerebral organic condition which affects her
work abilities.

     Claimant thereafter sought modification of Judge O'Shea's Decision and Order
pursuant to Section 22 of the Act, 33 U.S.C. §922.  In seeking modification,
claimant contended that there had been a mistake in a determination of fact by
Judge O'Shea, namely that claimant's brain dysfunction was not work-related, and
that newly developed evidence demonstrated a change in her physical condition. 
After conducting a hearing concerning claimant's request for modification,
Administrative Law Judge Alexander Karst, who had been assigned the case, found
that the evidence presented by claimant was "merely cumulative of the evidence
presented to and considered by Judge O'Shea" and that he had "no jurisdiction to
reweigh the evidence previously considered by Judge O'Shea."  Decision and Order -
Denying Benefits of Judge Karst at 2.  Accordingly, Judge Karst denied claimant's
motion for modification.  Claimant's motion for reconsideration was also denied.

     Claimant then appealed the denial of her motion for modification to the Board.
See Dobson v. Todd Pacific Shipyards Corp., 21 BRBS 174 (1988)(Dobson
I).  The Board determined that Judge Karst had erred both in failing to
consider the new evidence submitted by claimant in support of her modification
petition and in concluding that he lacked jurisdiction to reconsider previously
submitted evidence.  The Board therefore remanded the case to the administrative
law judge to consider claimant's motion in light of both the old and new evidence
before him. Id. at 176.
     On remand, the administrative law judge sought briefs from the parties
regarding claimant's request for modification.  Claimant thereafter filed a
Memorandum in Support of Modification, contending, inter alia, that she had
remained totally disabled due to the work-related incidents until January 6, 1986. 
Employer did not file a brief.  In a Decision and Order dated April 24, 1989, Judge
Karst found claimant's testimony regarding the occurrence of the three work-related
incidents to be "either deliberate fabrications unworthy of belief or delusions not
corresponding to reality."  Decision and Order of Judge Karst at 12.  After further
rejecting medical opinions favorable to claimant, since those opinions relied upon
claimant's veracity concerning the occurrences of the work-related incidents, Judge
Karst denied claimant's modification petition.

     Claimant, without the assistance of legal representation, again appealed the
denial of her request for modification to the Board.  The Board held that Judge
Karst erred when, on remand, he addressed, sua sponte, the issue of whether
claimant established the existence of working conditions or an accident which could
have caused her injuries.  The Board noted that the parties had stipulated at the
initial formal hearing before Judge O'Shea that three work-related incidents
occurred in the course and scope of claimant's employment with employer, that Judge
O'Shea accepted the stipulation and that, thus, claimant's veracity regarding the
occurrence of these incidents was never at issue in the proceedings below. 
Moreover, the Board noted that the occurrence of the incidents was never placed at
issue by either party in the modification proceedings.  The Board thus held that
although the administrative law judge is afforded wide discretion in modification
proceedings, see O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254,
reh'g denied, 404 U.S. 1053 (1972), to permit consideration of issues
stipulated in the first proceeding and which were not presented as a basis for
modification would not render justice under the Act.  Accordingly, the Board
vacated Judge Karst's denial of modification, and remanded the case for
consideration of the issues raised in claimant's request for modification, in
accordance with its prior decision.  Additionally, citing Bogdis v. Marine
Terminals Corp., 23 BRBS 136 (1989), the Board directed that the case be
assigned to a new administrative law judge on remand. See Dobson v. Todd Pacific
Shipyards Corp., BRB No. 89-1919 (Jan. 30, 1991)(unpublished)(Dobson
II).

     Thereafter, in an Order dated June 27, 1991, Chief Administrative Law Judge
Nahum Litt stated that the Board lacked authority to direct that the instant case
be assigned to a new administrative law judge on remand and, once again, assigned
the case to Judge Karst.  In a Decision and Order dated August 21, 1991, Judge
Karst reaffirmed his prior findings as stated in his Decision and Order of April
24, 1989.  Specifically, Judge Karst, again questioning claimant's veracity, stated
that he could not accept Dr. Aigner's diagnosis of post-concussion syndrome because
he could not accept that physician's premise that claimant told him the truth about
the work incidents.  Thus, Judge Karst once again denied claimant's petition for
modification.

     Claimant, with the assistance of counsel, now appeals the administrative law
judge's denial of modification, contending that Judge Karst's Decision and Order
of August 21, 1991 is contrary to law inasmuch as the Board had ordered that the
case be assigned to a new administrative law judge on remand.  Alternatively,
claimant contends that Judge Karst erred in discrediting claimant's testimony
concerning the occurrence of the work-related incidents.  Claimant requests that
the Board reverse Judge Karst's August 21, 1991 decision and award claimant
additional temporary total disability compensation from January 31, 1983 through
January 6, 1986.  Employer responds, urging affirmance of Judge Karst's denial of
modification.

     The threshold issue raised by this appeal is whether Chief Administrative Law
Judge Litt committed error in assigning the case to Judge Karst, in contravention
of the Board's order contained in Dobson II.  Judge Litt maintained
that the Board acted without authority in directing that the case be assigned to
a new administrative law judge on remand.  Based on our review and analysis of
federal case law concerning the issue of reassignment of a case to a different
judge on remand, we hold that the Board does have the authority to direct that a
case be assigned to a different administrative law judge on remand and that the
Board's reassignment order in Dobson II was proper.

     The Benefits Review Board's role is that of a quasi-judicial agency,
adjudicating private rights. See Kalaris v. Donovan, 697 F.2d 376 (D.C.
Cir.), cert. denied, 462 U.S. 1119 (1983).   Specifically, the Board is
authorized by Congress "to hear and determine appeals raising a substantial
question of law or fact taken by a party in interest from decisions with respect
to claims of employees" under the Act or its extensions. See 33 U.S.C.
§921(b)(3).  The Board performs the review function performed by the United
States District Courts prior to 1972. See Nacirema Operating Co., Inc.
v. Benefits Review Board, 538 F.2d 73 (3d Cir. 1976).  Regarding the Board's
review authority, the Act specifically states that the Board may remand a case to
the administrative law judge for further appropriate action. See 33 U.S.C.
§921(b)(4); see also 20 C.F.R. §802.405.  

     The relationship of the Board to the administrative law judge is similar to
that of the United States Courts of Appeals to the United States District Courts. 
The decisions of the United States Courts of Appeals recognize that an assignment
to a different judge on remand is appropriate in certain instances.  For example,
under 28 U.S.C. §455(a), a judge must recuse himself in circumstances that
give rise to a reasonable inference of impropriety or lack of impartiality. See
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988). See
also 28 U.S.C. §144.  Recusal is also necessary where the lower court
judge appears to have prejudged proceedings over which he is to preside, or if he
appears "boxed in" by prior rulings such that he will be forced to reach a certain
result regardless of the merits. See Frates v. Weinshienk, 882 F.2d 1502,
1504 (10th Cir. 1989), cert. denied, 494 U.S. 1004 (1990).  The
Administrative Procedure Act (APA), 5 U.S.C. §556, which provides that
hearings must be impartial, contains a similar provision applicable to
administrative law judges.  The provisions of the APA regarding hearings are
explicitly made applicable to proceedings conducted by administrative law judges
under the Act.  33 U.S.C. §919(c).
     The existence of statutory provisions concerning the disqualification of
judges upon a party's motion does not pose an obstacle to a court's ordering
reassignment on remand, as these provisions are not the exclusive method whereby
a judge may be removed from hearing a case.  The United States Court of Appeals for
the Ninth Circuit has stated that an appellate court may:

     exercise its inherent power to administer the system of appeals and
     remands by ordering a case reassigned on remand.  The basis for the
     reassignment is not actual bias on the part of the judge but rather a
     belief that the healthy administration of the judicial and appellate
     processes, as well as the appearance of justice, will best be served by
     such reassignment.

United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir.),
cert. denied, 479 U.S. 988 (1986).  While the statutory provisions at 28
U.S.C. §455 address recusal based on circumstances existing prior to or at the
time of a judge's participation in a case, the same standards apply where
reassignment is required based on a judge's own conduct during his participation
in a case.  United States v. Torkington, 874 F.2d 1441 (11th Cir. 1989).

     Reassignment is appropriate where a reasonable person would question the trial
judge's impartiality. United States v. Holland, 665 F.2d 44 (5th Cir. 1981). 
Remarks by a trial judge during trial may give rise to an inference of bias or a
lack of impartiality. Id.  Cases that have maintained a "stalemated posture"
because of the district judge's intransigence also require reassignment to another
judge. Brooks v. Central Bank of Birmingham, 717 F.2d 1340 (11th Cir.
1983)(per curiam).  An assignment to a different judge is also appropriate
where the reassignment preserves the appearance of justice, United States v.
Schwarz, 500 F.2d 1350 (2d Cir. 1974), or is "in the public interest as it
minimizes even a suspicion of impartiality." United States v. Simon, 393
F.2d 90 (2d Cir. 1968).  Where a district judge's continued participation in a case
presents a significant risk of undermining the public confidence in the fair
administration of justice, the appellate court has the authority and the duty to
order the case reassigned to a different district judge. Torkington, 874
F.2d at 1441.  If there is no indication of personal bias, the Second Circuit has
delineated factors to be considered by a court in deciding to exercise its
supervisory authority:

     (1) whether the original judge would reasonably be expected upon remand
     to have substantial difficulty in putting out of his or her mind
     previously-expressed views or findings determined to be erroneous or
     based on evidence that must be rejected, (2) whether reassignment is
     advisable to preserve the appearance of justice, and (3) whether
     reassignment would entail waste and duplication out of proportion to any
     gain in preserving the appearance of fairness.

United States v. Robin, 553 F.2d 8 (2d Cir. 1977)(en banc); see
also United States v. White, 846 F.2d 678 (11th Cir.), cert. denied, 488
U.S. 984 (1988); United States v. Garcia, 694 F.2d 294 (1st Cir. 1982);
United States v. Long, 656 F.2d 1162, 1166 n.7 (5th Cir. 1981). 
Reassignment is appropriate where the facts indicate that a stalemated situation
exists.  In Robin, the court stated that where a judge has repeatedly
adhered to an erroneous view after an error is called to his attention,
reassignment may be advisable to avoid an exercise in futility.

     In the instant case, our review of the prior decisions of both the
administrative law judge and the Board indicates that remand to a new
administrative law judge was necessitated by several of the reasons discussed
above.  In his first decision, Judge Karst denied modification, finding that the
evidence presented by claimant was "merely cumulative of the evidence presented"
to Judge O'Shea, and that he had "no jurisdiction to reweigh the evidence
previously considered by Judge O'Shea."  In Dobson I, the Board held that
Judge Karst committed error in not reviewing claimant's evidence, and remanded the
case to the administrative law judge to reconsider claimant's motion for
modification. See O'Keeffe, 404 U.S. at 256 (fact finder has broad
discretion to correct mistakes of fact whether demonstrated by wholly new evidence,
cumulative evidence or merely further reflection upon evidence initially
submitted).

     On remand, Judge Karst again denied modification, finding that the injuries
alleged by claimant in her initial claim did not occur, despite the fact that the
occurrence of the three incidents relied on by claimant had not been contested by
employer at any stage in the proceedings and, in fact, were stipulated to by the
parties before Judge O'Shea.  These stipulations were accepted by Judge O'Shea and
acted on by the parties throughout the initial proceedings.  Moreover, Judge
Karst's second decision is replete with references to claimant which demonstrates
a lack of impartiality and bias towards her.  After noting that many "of
[claimant's] statements recorded in the file strike me as entirely incredible,"
see 1989 Decision and Order at 11, Judge Karst stated that:

     Although the claimant appears to have emotional or personality problems,
     the evidence before me persuades me that she is shrewd, manipulative and
     determined, and had, since at least 1978, been trying to find some way
     to obtain disability benefits from the public sector or from an
     employer.  The papers she submitted reveal that she is bound and
     determined to portray herself as a victim of malevolent, even "sadistic"
     villains who cause her injuries, who do not treat her or her injuries
     sympathetically or properly, and who do not properly press her claim.

Id.  Based upon the foregoing, reassignment was necessary in the instant
case to preserve the appearance of justice and to minimize even a suspicion of a
lack of impartiality; thus, reassignment was consistent with the appellate case
law.  

     Moreover, the most recent decision by Judge Karst, currently on appeal,
demonstrates the futility of continued assignment to him.  Despite the judge's
clear error in disregarding stipulated facts, on remand he again reaffirmed his
prior findings.  While he addressed Dr. Aigner's opinion that claimant's seizures
were related to her head injuries, he rejected it because he did not believe
claimant's' assertions that she suffered blows to the head on October 15, 1980,
October 24, 1980, and March 9, 1981.  In so doing, he disregarded the parties'
stipulations, the detailed descriptions in Judge O'Shea's Decision and Order of the
incidents which specifically mention claimant's striking her head, and the fact
that no physician questioned the occurrence of the events as described.  Judge
Karst's actions on remand served only to attempt to bolster his prior opinions
rather than provide claimant with an objective decision based on the record. 
Reassignment was thus appropriate on several of the bases relied upon by the
appellate courts.

     It is also important to note that the Board did not direct the assignment of
this case to any particular administrative law judge; rather, the Board merely
directed that the case not be assigned to Judge Karst.  Thus, the Board did not
improperly inject itself into the assignment process.  In similar circumstances,
the United States Court of Appeals for the Second Circuit, in explaining its
statement that a certain district court judge should not sit on the retrial of a
case, stated:

     We did not suggest who should preside over the retrial.  We
     suggested who should not preside.  When we believe that there is
     an inherent problem in a particular remand, we have the power, indeed
     the duty, to frame our opinion to provide for "further proceedings . .
     . [which are] just under the circumstances."  28 U.S.C. §2106.

United States v. Yagid, 528 F.2d 962 (2d Cir. 1976).

     By directing that the instant case should be assigned to a new administrative
law judge on remand, the Board did not infringe upon the right of the Chief
Administrative Law Judge to assign cases to judges within his office.  The Board's
instruction did not order the Chief Administrative Law Judge to assign the case to
a particular judge, but merely directed that a particular judge should not
hear the case.  Thus, the Board's order in Dobson II was not contrary to 20
C.F.R. §725.454(b), the only authority cited by Chief Judge Litt in stating
that the Board was without authority to direct assignment to a different
administrative law judge.[1]   Section 725.454(b)
states that the Chief Administrative Law Judge may reassign a case to a new
administrative law judge upon good cause shown.  20 C.F.R. §725.454(b).  It
does not address the Board's authority to direct that a certain administrative law
judge not hear a case on remand.

     Moreover, the Board's regulations, promulgated by the Secretary of Labor at
20 C.F.R. Part 802, specifically address the remanding of cases by the Board,
stating that "[w]here a case is remanded, such additional proceedings shall be
initiated and such other action shall be taken as is directed by the Board."  20
C.F.R. §802.405.  Section 21(b)(4) of the Act also authorizes the Board to
remand a case to an administrative law judge "for further appropriate action."  33
U.S.C. §921(b)(4).  It is error for an administrative law judge to fail to
follow the Board's instructions on remand. See Randolph v. Newport News
Shipbuilding and Dry Dock, 22 BRBS 443 (1989).  As the Board stated in Hall
v. Director, OWCP, 12 BLR 1-80, 1-82 (1988), "the United States judicial system
relies on the most basic of principles, that a lower forum must not deviate from
the orders of a superior forum, regardless of the lower forum's view of the
instructions given it."[2]   Once an administrative
law judge issues his order on remand, the case may again be appealed, and if the
Board has erred, the error will be corrected by the appropriate United States Court
of Appeals pursuant to 33 U.S.C. §921(c).  No provision of the Act or the
regulations authorizes the Chief Administrative Law Judge to review the Board's
decisions or to refuse to follow the directions contained in them.[3] 

     Based on the foregoing, we hold that the Board acted within its appellate
authority when, in Dobson II, it directed that a different administrative
law judge hear this case on remand.[4]   The
decision is consistent with appellate practice and complies with the decisions of
the United States Courts of Appeals, which are charged with review of the decisions
of the Board.  Moreover, the Board's order was not inconsistent with any provision in
either the Act or Department of Labor regulations.  Chief Judge Litt's decision not
to comply with the directive of the Board is, thus, directly at odds with appellate
practice and is a violation of 20 C.F.R. §802.405.

     Therefore, because Chief Judge Litt erred in assigning the instant case to
Judge Karst on remand, in contravention of the Board's instruction in Dobson
II, and as Judge Karst's 1991 opinion did not provide findings in accordance
with the Board's prior opinion, we must vacate Judge Karst's 1991 Decision and
Order, and remand the case once again for consideration of the issues raised in
claimant's request for modification in accordance with our prior decisions. 
Furthermore, we again direct that the case be assigned to a new administrative law
judge on remand.[5] 

     Accordingly, Judge Karst's 1991 Decision and Order denying modification is
vacated, and the case is remanded for reconsideration in accordance with this
opinion.

     SO ORDERED.


                                                                        

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                        

                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge


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Footnotes.


1)In his Order declining to follow the Board's direction, Chief Judge Litt refers to a similar order issued over his signature in Bogdis v. Marine Terminals Corp., No. 86-LHC-00109 (Sept. 10, 1990), wherein he stated that 20 C.F.R. Part 725 provides that the Board does not have authority or jurisdiction to consider the matter of assignment of judges. Judge Litt specifically referenced 20 C.F.R. §725.454(b). No other regulation in Part 725 addresses this issue. However, Part 725 regulations are relevant to claims arising under the Black Lung Act; Bogdis and Dobson arise under the Longshore Act. Thus, the Part 725 regulations are not applicable to the instant matter; the appropriate regulations are contained in Parts 701 and 702, which are silent on this issue. Back to Text
2)As stated supra, Section 802.405(a) of the regulations provides that "[w]here a case is remanded, such additional proceedings shall be initiated and such other action shall be taken as is directed by the Board." 20 C.F.R. §802.405(a); see also Obert v. John T. Clark and Son of Maryland, 23 BRBS 157 (1990). Herein, Judge Litt failed to take "such other action . . . as is directed by the Board." Back to Text
3)Chief Judge Litt stated that in Dobson II, the Board exceeded its statutory standard of review under 33 U.S.C. §921(b)(3) by substituting its judgment regarding claimant's credibility for that of Judge Karst. The Board's decision, however, does not discuss or comment in any way upon claimant's credibility. Rather, as discussed above, the Board's decision addresses Judge Karst's disregard for stipulations entered into by the parties and accepted by the first administrative law judge to hear the case. Back to Text
4)In a Black Lung case, the Board has similarly remanded a case with the instruction that a new administrative law judge be assigned, where the first administrative law judge displayed bias towards the employer and failed to follow the Board's directives in its first remand order. See Cochran v. Consolidation Coal Co., 16 BLR 1-101 (1992). Back to Text
5)Based on our holding in this matter, claimant's contentions concerning the merits of Judge Karst's 1991 Decision and Order are moot. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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