Appeals

In addition to handling claims from the outset, Lara Merrigan also accepts select cases post-trial for appeal. She has worked on over 100 appeals. She handles appeals under both Maritime Law and the Longshore and Harbor Workers’ Compensation Act (“LHWCA” or “Longshore Act”) and its extensions, including the Defense Base Act (“DBA”). Typically, an interested trial lawyer will contact her directly, and she works with that trial attorney to develop an optimal case strategy. If you are an attorney or an unrepresented claimant interested in working with an appellate attorney, please contact her for a consultation.

Lara Merrigan is admitted in the Eleventh Circuit Court of Appeals, the Ninth Circuit Court of Appeals, the Fifth Circuit Court of Appeals, the Fourth Circuit Court of Appeals, the Southern District of Texas, the Central District Court of California, the Northern District Court of California, the Eastern District Court of California, and the California Supreme Court. She has appeared pro hac vice before the Middle District of Florida and the District Court of Hawaii. Of course, if an appearance is needed outside of these jurisdictions, she would explore admission, and admission in circuit courts is typically straightforward. She also regularly practices before the Benefits Review Board.

In evaluating a case for appeal, the starting point is to determine whether the appeal is of a factual or legal issue. This distinction dictates the standard of review. An administrative law judge (“ALJ”) or other fact finder has broad discretion to determine the credibility of witnesses and make factual determinations. This means that to succeed in a factual appeal, it is necessary to show that the findings are not supported by substantial evidence—in other words, they are irrational, arbitrary, or capricious. Of course, this also generally makes these appeals the easiest to defend. See, e.g., Global Linguist Solutions., LLC v. Abdelmeged, 913 F.3d 921 (9th Cir. 2019) (Merrigan Legal DBA case where Ninth Circuit rejected the employer’s arguments that the claimant’s testimony and medical records were not substantial evidence to support PTSD award);Colaruotolo v. SSA Containers, Inc., 728 Fed. Appx. 713 (9th Cir. 2018) (Merrigan Legal case where the Ninth Circuit reversed a denial of total disability for multiple reasons including that the employer’s vocational expert’s opinion did not constitute substantial evidence);Wilson v. Fluor Federal Global Projects, Inc., BRB No. 18-0254 (unpub.) (June 18, 2019) (Merrigan Legal case where the BRB vacated a denial of DBA benefits for burn pit exposure where, among other errors, the ALJ’s finding “that no such evidence [of benzene exposure] exists is simply incorrect”). If an ALJ fails to discuss material evidence, the Administrative Procedure Act can lead to vacatur. See Wilder v. Long Beach Container Terminal, BRB No. 18-0013 (unpub.) (Oct. 30, 2018) (Merrigan Legal case where the BRB vacated the ALJ’s denial of compensation benefits because the ALJ applied the wrong legal standard for timeliness and did not sufficiently explain his conclusions as required by the Administrative Procedure Act).

In contrast, legal issue appeals are evaluated under the more generous standard of de novo review. De novo means that the reviewing court will consider the issue with “new” eyes, so without any deference to the holdings below. See, e.g., Christie v. Georgia-Pacific Co., 898 F.3d 952 (9th Cir. 2018) (Merrigan Legal case where the Ninth Circuit reversed a benefits denial based upon the legal definition of “disability.”); Shah v. Worldwide Language Resources, Inc., 703 Fed. Appx. 624 (Nov. 22, 2017) (Merrigan Legal case where the Ninth Circuit reversed the BRB’s dismissal of DBA appeal on procedural grounds); Logan v. IAP Worldwide Services, BRB No. 16-0162 (unpub.) (Nov. 14, 2016) (Merrigan Legal case where the BRB reversed the ALJ’s finding that the claimant was not the decedent’s “widow” as defined in the statute, and then on remand the ALJ awarded DBA death benefits since the decedent took his own life as a result of his PTSD and traumatic brain injury).

Longshore Act cases follow an unusual and potentially confusing appellate path. Administrative law judge decisions are appealable to the Benefits Review Board (“BRB”). BRB decisions of classic Longshore Act cases are appealable to the circuit court where the injury occurred. However, there is a circuit split regarding where Defense Base Act decisions go after the BRB; some circuits will directly review them and some have held that the district court must review the case first. In DBA cases, the location of the district director’s office from which the ALJ’s decision is served determines the relevant circuit court or district court in Defense Base Act cases is determined by. Decisions by district directors of the Office of Workers’ Compensation Programs are sometimes appealable to the Benefits Review Board, sometimes to the Office of Administrative Law Judges, and sometimes to a district court. See Gillelan, Joshua T., II; Kris R. Marotti; and Lara D. Merrigan, “Appellate Procedure Under the Longshore Act,” THE LONGSHORE TEXTBOOK (Steven M. Birnbaum & Ralph R. Lorberbaum eds., 7th Ed., 2017). If you have questions regarding the proper venue or forum for your appeal, please do not hesitate to contact Lara Merrigan.

The Longshore Act offers two useful alternatives to appealing unfavorable decisions: Section 22 modification and reconsideration. Section 22 allows modification for mistakes of fact or changes of condition without deference to prior factual findings (for a claimant—if an employer brings a § 22 motion, the burden is on the employer, which is a reversal of the typical burdens). Thus, it should be considered where an administrative law judge made a factual determination that you believe to be wrong, but it is not outright disproven or otherwise undermined by the evidence in the record. Notably, if there are aspects of the first decision that warrant appeal, but you also want to seek modification, you may file a timely appeal to the Benefits Review Board, and then seek to dismiss it without prejudice during the modification proceedings. After the modification proceedings end, you must then move to reinstate the original appeal under the standard 30-day timeline from the date the modification order is filed by the District Director. This preserves the right to appeal any legal issues from the first decision. Modification must be sought within one year of a final decision or within one year of the last indemnity payment, whichever is later.

Reconsideration is also an option if the Administrative Law Judge made an error that you believe he or she may wish to fix, if it is pointed out. Take care that a motion for reconsideration to the OALJ is due by 4:30 p.m. on the tenth day from when the decision and order is filed by the District Director (with no extra time for mailing). If an ALJ declines to entertain an untimely reconsideration motion, that motion will not toll the time period to appeal. A particularly obscure trap is that if a party files an appeal, and then either party timely files for reconsideration (or if the ALJ accepts and considers an untimely reconsideration motion), it voids that notice of appeal. Thus, even if you have already filed a notice of appeal, you must re-file within 30 days of when the reconsideration order is filed. Otherwise, the Board must dismiss the appeal for lack of jurisdiction. See, e.g.,Taft v. Lockheed Martin Corp., BRB No. 17-0618 (unpub.) (Feb. 13, 2018), reh’g denied, BRB No. 17-0618 (May 21, 2018) (Merrigan Legal successfully moved to dismiss Lockheed Martin’s appeal where it failed to re-file its appeal after the decision on reconsideration).

If you represent a claimant or are an unrepresented claimant appealing a case or defending an appeal, please do not hesitate to contact Lara Merrigan for a review of the underlying decision and to discuss possible appeal strategies.

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