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Peter v. Hess Oil Virgin Islands Corp.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


decided: August 17, 1990.

CONRAD PETER, APPELLANT IN NO. 88-3797
v.
HESS OIL VIRGIN ISLANDS CORP., APPELLANT IN NO. 88-3798

{Judge}{Q}Judges{/Q}{/Judge}

Higginbotham, Walter K. Stapleton, and Scirica, Circuit Judges.

Author: Stapleton

SUR PETITION FOR PANEL REHEARING

The petition for rehearing filed by Appellant, Conrad Peter, in the above-entitled case having been submitted to the judges who participated in the decision of this court and no judge who concurred in the decision having asked for rehearing, the petition for rehearing is denied.

STATEMENT SUR DENIAL OF PETITION FOR PANEL REHEARING

This matter comes before us again upon the petition of the plaintiff Conrad Peter for rehearing of this appeal before the panel. Upon the initial hearing of this matter, we held that Peter could not recover a common law tort verdict under Virgin Islands law against Hess because such a remedy was preempted by the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq. See Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935 (3d Cir. 1990). In support of his present petition, Peter raises for the first time on appeal the argument that LHWCA does not apply to the territorial waters of the Virgin Islands.

The plain language of LHWCA, 33 U.S.C. §§ 903(a), 902(8),(9), extends the Act's coverage to the waters of United States territories. The Virgin Islands are a territory of the United States. 48 U.S.C. § 1541(a); Cf. Sarauw v. Oceanic Navigation Corp., 655 F.2d 526 (3d Cir. 1981) (affirming a verdict under LHWCA, 33 U.S.C. § 905(b), awarded to a dockworker injured on a gangway connecting a ship to the dock at Hess' St. Croix refinery). Based on this fact and the absence of any argument to the contrary in the briefing, we assumed in our opinion that Peter's alleged injury was compensable under LHWCA. However, Peter has now produced for us a number of letters and memoranda written by employees of the Office of Workers' Compensation Programs ("OWCP"), the officer to which the Secretary of Labor has delegated his statutory authority to administer LHWCA, interpreting LHWCA as not applying to the territorial waters of the Virgin Islands.*fn1 Peter insists that we must give deference to this interpretation.*fn2 Phillips v. Marine Concrete Structures, Inc., 877 F.2d 1231 (5th Cir. 1989) (deference is owed to the Director of OWCP's interpretation of LHWCA), vacated on other grounds, 895 F.2d 1033 (5th Cir. 1990) (en banc).

We decline to grant panel rehearing to address this argument at this juncture of the litigation. Peter raised his argument about the applicability of LHWCA to the Virgin Islands in the district court, but he did not do so before this court. He was required to do so if he wished this court to address that argument. See Fed. R. App. P. 28(b) (appellee's brief on appeal shall adhere to Fed. R. App. P. 28(a)(4) and "contain the contentions of the [appellee] with respect to the issues presented" on appeal); In re Sugar Antitrust Litigation, 579 F.2d 13, 20 (3d Cir. 1978) (refusing to grant rehearing to deal with issues not raised in the district court or briefed on appeal); see also, Lowry v. Bankers Life and Casualty Retirement Plan, 871 F.2d 522, 525 (5th Cir. 1989) (refusing to address an argument made for the first time in an application for rehearing), cert. denied, 493 U.S. 852, 110 S. Ct. 152, 107 L. Ed. 2d 111 (1989); Dean v. Dean, 837 F.2d 1267 (5th Cir. 1988) (same); Rodriguez de Quinonez v. Perez, 596 F.2d 486, 492 (1st Cir. 1979) (refusing to grant rehearing where there was no excuse for counsel's failure to raise a legal argument at the proper time), cert. denied, 444 U.S. 840, 62 L. Ed. 2d 51, 100 S. Ct. 78 (1979); Jamestown Farmers Elevator, Inc. v. General Mills, 552 F.2d 1285, 1294-95 (8th Cir. 1977) (refusing to entertain an argument first raised in a petition for rehearing). Furthermore, Peter's counsel has proffered no legitimate excuse for failing to raise this argument in a timely manner, and contrary to his assertions, this argument does not implicate the subject matter jurisdiction of this court. We have jurisdiction to decide this appeal without regard to whether LHWCA applies or does not apply to the territorial waters of the Virgin Islands. See 28 U.S.C. § 1294(3). In these circumstances, we refuse to delay the disposition of other appeals by granting panel rehearing to address this tardily raised contention.*fn3

As the petition for panel rehearing filed by Conrad Peter in this appeal has been submitted to the judges who participated in the decision of this court and no judge who concurred in the decision has asked for rehearing, Peter's petition for panel rehearing will be denied. By separate order, Peter's petition for rehearing in banc has also been denied.


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