Opinion
No. 181, Docket 20904.
March 4, 1948.
Appeal from the District Court for the United States for the Southern District of New York.
Action by the Seaboard Marine Repair Company, Inc., against Frank A. Cardillo, Deputy Commissioner, Second Compensation District, and another, for injunction restraining payment of award under the Longshoreman's and Harbor Workers' Compensation Act, § 1 et seq., 33 U.S.C.A. § 901 et seq. From an order of the United States District Court for the Southern District of New York denying motion for preliminary injunction, plaintiff appeals.
Affirmed with directions to dismiss the complaint.
Seaboard Marine Repair Company, Inc., is engaged in the business of ship repairs. Parks, in Seaboard's employ and while working on the repair of a vessel in the East River, sustained serious physical injury resulting in the loss of vision of one eye. He filed a claim under the Longshoremen's and Harbor Workers' Act, 33 U.S.C.A. Chapter 18. After hearings, Deputy Commissioner Lowe, on April 11, 1946, entered an order rejecting the claim on the sole ground that Parks had not given notice to Seaboard within thirty days from the date of the injury. At some time before April 10, 1947, Lowe had been succeeded by Cardillo as Deputy Commissioner. On April 10, 1947 Parks made an application to Cardillo to review and modify the order of April 11, 1946, on the ground that Lowe had made a mistake in the determination of facts on which he had based that order. The application specified testimony which Lowe had overlooked. Cardillo, after hearing further testimony and reviewing the testimony heard by Lowe, found that Lowe had made such a mistake, and that Seaboard was on notice of the injury within the time specified by the Act. Accordingly, on October 7, 1947, Cardillo entered an order directing a payment by Seaboard to Parks. Seaboard then filed a complaint in the district court asking a permanent injunction restraining payment of the award. Thereafter, Seaboard moved for a temporary injunction. The district court made an order denying that motion. From that order, Seaboard has appealed.
Paul Koch, of New York City, for plaintiff-appellant.
Charles L. Cusumano, of New York City, for defendant-appellee Parks.
Before L. HAND, SWAN and FRANK, Circuit Judges.
Seaboard does not contend (nor could it successfully) that Cardillo had less power than Lowe would have had to modify the order of April 11, 1946. Nor does it contend the evidence does not amply support Cardillo's findings or that the findings do not sustain the award. Seaboard's contention runs thus: The question whether Seaboard had timely notice is jurisdictional and therefore one of "law"; a question of "law" with respect to a compensation award can be judicially reviewed solely by court proceedings under § 921; therefore, the attempted administrative modification of the April 11, 1946 order was invalid and that order now stands unmodified.
We think this contention untenable. We assume, arguendo, that the doctrine of Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598, is still intact. But that doctrine strictly limits the category of jurisdictional questions. We think that category does not include the question of notice.
See Chicago Coal Dock Co. v. Bassett, 7 Cir., 104 F.2d 522, 525, affirmed 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732.
As Park's application for modification was made within the one-year period provided by § 922, our decision disposes of the case. We therefore not only affirm the denial of the temporary injunction but also remand with directions to dismiss the complaint.