Unpublished Disposition, 855 F.2d 862 (9th Cir. 1982)

MEMORANDUM^*

Wallace McFarland appeals pro se from the Benefits Review Board's order denying his request to reopen his claim for benefits under the Longshoremen's and Harbor Workers' Compensation Act (the "Act"), 33 U.S.C. §§ 901-50 (1982). Because the order appealed from is non-reviewable under 5 U.S.C. § 701(a) (2), we dismiss for lack of jurisdiction.

McFarland was employed by the Bethlehem Steel Corporation on or about March 21, 1970. He alleges that during the course of such employment, he suffered an injury entitling him to benefits under the Act. Bethlehem denied that such an injury occurred and refused benefits. McFarland's claim was denied by an administrative law judge (ALJ) on May 18, 1977. McFarland appealed that denial, first to the Benefits Review Board, pursuant to 33 U.S.C. § 921(b) (3), and then to this court, under 33 U.S.C. § 921(c). At each level of review, his claim was denied. In January, 1980, McFarland petitioned to reopen his claim due to a "mistake in a determination of fact." 33 U.S.C. § 922. An administrative law judge denied that petition by order of June 22, 1982. On appeal to the Benefits Review Board, McFarland's claim was again denied a rehearing, and he appeals to this court pursuant to 33 U.S.C. § 921(c).

The essence of McFarland's petition to reopen his proceeding is that the administrative law judge made numerous mistakes of fact in his 1977 decision. Benefits awards may be modified "on the ground of a change in conditions or because of a mistake in a determination of fact...." 33 U.S.C. § 922. The term "change in conditions," as used in that section, means a change in the employee's physical condition and not other circumstances. See Verderane v. Jacksonville Shipyards, Inc., 772 F.2d 775, 780 (11th Cir. 1985); McCormick S.S. Co. v. United States Employees' Compensation Comm'n, 64 F.2d 84, 85 (9th Cir. 1933). McFarland's petition for rehearing could have only been based, therefore, on a "mistake in determination of fact."

It has been decided that "where a party petitions an agency for reconsideration on the ground of 'material error,' i.e., on the same record that was before the agency when it rendered its original decision, 'an order which merely denies rehearing of ... [the prior] order is not itself reviewable'." I.C.C. v. Brotherhood of Locomotive Eng'rs, 107 S. Ct. 2360, 2366 (1987) (quoting Microwave Communications, Inc. v. FCC, 515 F.2d 385, 387 n. 7 (D.C. Cir. 1974)). The Supreme Court in Locomotive Engineers distinguished between cases where the petition to reopen was based on no more than "material error" and those instances where new evidence or changed circumstances were invoked. After a careful review of McFarland's petition to reopen, we decide that it was premised exclusively on supposed mistakes made by the ALJ in the original proceeding. While one of the grounds that McFarland used in his petition was labeled "newly discovered evidence" it was, in fact, only a dispute with the ALJ's findings of fact.

Because McFarland's petition to reopen was based only on a "mistake in a determination of fact" by the ALJ, the order of the Benefits Review Board denying that petition is non-reviewable in this court because such a decision has been "committed to agency discretion by law." 5 U.S.C. § 701(a) (2); see also Locomotive Engineers, 107 S. Ct. at 2366-67; cf. Simmons v. Marshall, 94 F.2d 850, 852 (9th Cir. 1938) (where this court avoided decision on reviewability of denial to reopen, based on evidence not introduced at original hearing, by ruling that it was not an abuse of discretion to deny rehearing).

The appeal is DISMISSED for lack of jurisdiction.