United States Court of Appeals,
Fifth Circuit.
No. 93-5236.
Summary Calendar.
Thomas VINCENT, Plaintiff-Appellee,
v.
CONSOLIDATED OPERATING COMPANY
and
Mission Insurance Company, Defendants-Appellants.
March 31, 1994.
Appeal from the United States District Court for the Western
District of Louisiana.
Before WISDOM, KING, and GARWOOD, Circuit Judges.
PER CURIAM.
Defendants Consolidated Operating Co. ("Consolidated") and
Mission Insurance Co. ("Mission") appeal from the entry of summary
judgment against them. The district court held that the defendants
had violated a valid order under the Longshore and Harbor Workers'
Compensation Act ("LHWCA") ordering them to pay compensation to
plaintiff/appellee Thomas Vincent. We AFFIRM.
I.
Vincent was injured three times while in Consolidated's
employ, once in December 1985, again in February 1986, and again in
March 1986. Vincent sought compensation for his injuries under the
LHWCA.1 The parties stipulated that Vincent was temporarily
1
33 U.S.C. §§ 901-950.
1
totally disabled as a result of his injuries. On October 7, 1987,
Administrative Law Judge Parlin McKenna of the U.S. Department of
Labor ordered the defendants to pay Vincent compensation benefits
of $330 a week. The defendants did not appeal ALJ McKenna's order.
The defendants paid the compensation required under the 1987
order until January 14, 1992, when they abruptly stopped paying.
The defendants based their termination of benefits on an evaluation
of Vincent by one of their own physicians, who determined that
Vincent was no longer disabled. Vincent had not been evaluated by
his own physician before the defendants terminated his
compensation. The defendants sought no modification of ALJ
McKenna's compensation order before terminating Vincent's benefits.
In June 1992, five months after unilaterally terminating Vincent's
compensation, the defendants sought a modification of ALJ McKenna's
1987 compensation order. A claims examiner (1) rejected the
defendants' request as premature, (2) held that the defendants were
in default of the 1987 compensation order, and (3) ordered
reinstatement of Vincent's benefits from the termination date plus
a twenty percent penalty.
The defendants failed to comply with the reinstatement order
and continued to refuse payment of the compensation awarded Vincent
under ALJ McKenna's 1987 order. On July 29, 1992, Vincent filed a
suit in the federal district court under 33 U.S.C. § 921(d) to
enforce the 1987 order.2
2
This statute provides, in pertinent part:
If an employer ... fails to comply with a compensation
2
The Department of Labor issued a Supplemental Compensation
Order on November 12, 1992, declaring that the defendants had
defaulted in their payment obligations under the 1987 order and
ordering them to pay additional compensation as provided by 33
U.S.C. § 918(a). Vincent filed a copy of the Department's November
12 order in the district court, and on December 21, 1992, Vincent
moved for summary judgment. The defendants responded by filing a
motion to dismiss or stay the lawsuit pending resolution by the
Department of Labor of their request to modify the 1987
compensation order. The district court denied the defendants'
motion, and on April 26, 1993, granted Vincent's motion for summary
judgment. The defendants moved for a new trial. Their motion was
served on May 7 and filed with the district court on May 10, 1993.
On July 29, 1993, the district court denied their motion as
untimely, but also held in the alternative that the defendants'
motion should be denied on the merits. The defendants appealed to
this Court on August 27, 1993.
We review a summary judgment de novo using the same standard
applied by the district court. The burden is on the movant,
Vincent in this case, to show that there is no genuine dispute over
order making an award, that has become final, any
beneficiary of such award ... may apply for the
enforcement of the order.... If the court determines
that the order was made and served in accordance with
law, and that such employer or his officers or agents
have failed to comply therewith, the court shall
enforce obedience to the order [by the methods
enumerated].
33 U.S.C. § 921(d).
3
any material fact and that the movant is entitled to judgment as a
matter of law.3
II.
A. Jurisdiction of the Court of Appeals
We pause briefly to address the matter of our own
jurisdiction to decide this case. Although neither party has
raised the issue, we must do so sua sponte if we perceive any
possible defect in our jurisdiction.4 The parties may not waive
any defects in appellate jurisdiction.5
The district court held that the defendants had not timely
filed their motion for new trial under Fed.R.Civ.P. 59(e), but
proceeded to the merits of the defendants' motion in the stated
interest of providing a complete record.6 An untimely Rule 59(e)
motion does not toll the running of the thirty-day clock to appeal
to this Court, and thus the defendants' August 27, 1993 notice of
appeal was untimely if the district court was correct. The
district court is powerless to rule on an untimely Rule 59(e)
3
See Fed.R.Civ.P. 56.
4
Pemberton v. State Farm Mut. Auto. Ins. Co., 996 F.2d 789,
791 (5th Cir.1993).
5
Id. at 791 n. 1.
6
"While plaintiff is absolutely correct that the Motion for
New Trial was not timely filed, defendants raise the specter of
improper consideration and analysis by this Court, arguments
which this Court addresses simply to ensure that the record in
this matter is absolutely clear". Memorandum Ruling, July 30,
1993, Appellant's Record Excerpts tab 5, at 130.
4
motion.7
Our review of the record has persuaded us that the district
court erred in holding that the defendants' motion for new trial
was untimely. The docket lists the entry date of the district
court's judgment as April 28, 1993, a Wednesday.8 The defendants
served their motion for new trial by mail on May 7, 1993, a
Friday.9 Nine calendar days elapsed between the entry of judgment
and the service10 of the defendants' motion for new trial; seven
days after we exclude the intervening weekend.11 Therefore, the
motion was served within the ten days required by Rule 59, and
tolled the commencement of the thirty-day clock to appeal to this
Court until the district court ruled on the motion. The district
court denied the defendants' motion for new trial on July 30, 1993;
the denial was entered on the docket on August 2. The defendants'
7
Flores v. Procunier, 745 F.2d 338, 339 (5th Cir.1984),
cert. denied, 470 U.S. 1086, 105 S.Ct. 1851, 85 L.Ed.2d 148
(1985).
8
The district court signed the judgment two days earlier, on
April 26, and it was filed on that date. The timing of posttrial
motions, however, turns on the date the judgment was entered on
the docket, which in this case was April 28. See Burrell v.
Newsome, 883 F.2d 416, 418 (5th Cir.1989).
9
Rec. 123. Service by mail is complete upon mailing.
Fed.R.Civ.P. 5(b).
10
A Rule 59 motion is timely if served within ten days of
the entry of judgment; it need not be filed within that time.
Fed.R.Civ.P. 59(b). An amendment to the Federal Rules of Civil
Procedure has been proposed, but not adopted, to require filing
within ten days. See 150 F.R.D. 398-99.
11
We exclude weekends and holidays from the calculation when
determining whether a Rule 59(e) motion was served within ten
days of the judgment. Fed.R.Civ.P. 6(a); see Richardson v.
Oldham, 12 F.3d 1373, 1377 n. 9 (5th Cir.1994).
5
notice of appeal was filed twenty-five days later on August 27,
1993, and was therefore timely. We have jurisdiction to decide
this case.
B. Jurisdiction of the District Court
The defendants first allege that the district court lacked
jurisdiction to entertain the plaintiff's lawsuit while the
defendants' request to modify the 1987 compensation order was still
pending in the Department of Labor. The defendants cite no
authority for their position, and the statutory scheme is against
them. The scope of the district court's inquiry under § 921(d) is
limited to answering two questions: first, was the compensation
order made and served in accordance with law, and second, has the
employer failed to comply with it? If the answers are "yes" to
both questions, the statute requires the district court to enforce
the order. Nothing in the LHWCA suggests that the district court
is powerless to carry out the statute's command while the
defendants attempt another attack on the order in the Department of
Labor.
C. Denial of Motion to Dismiss or Stay and the Defendants' Due
Process Challenge
We will consider the defendants' last two arguments together
because they are simply the same challenge phrased in two different
ways. The defendants contend that, even if the district court had
jurisdiction to entertain the plaintiff's claim, the court erred in
denying their motion to dismiss or stay the lawsuit pending
resolution of their challenge in the Department of Labor. They
further argue that they face a deprivation of due process if their
6
challenge in the Department of Labor ultimately prevails, for the
reason that they will be unable to recover payments made but not
owed to Vincent.12 They cite no pertinent authority for either
position. Their reliance on an out-of-context quotation from In re
Compensation Under the Longshore and Harbor Workers' Compensation
Act13 is misplaced, for that case merely mentioned that the Benefits
Review Board had the power to stay a compensation award when the
employer would otherwise be irreparably injured. We did not hold
in that case that a stay is required in all such cases, and even if
we had, the defendants here have not even attempted to show that
they will be irreparably harmed by being held to the terms of the
1987 order.
The complete absence of cases supporting the defendants'
position is easily explained. The defendants have crafted a
convoluted argument to try to escape from a simple problem. The
LHWCA provides a mechanism for challenging an award of compensation
with which the defendants here failed to comply. Consolidated may
not unilaterally decide that Vincent is no longer entitled to
compensation; only the Department of Labor may do that. We reject
the defendants' argument that their belated invocation of the
12
When an employer successfully challenges an award of
compensation under the LHWCA, the employer's sole remedy is to
deduct the amount of the past overpayment from future payments to
the injured employee. The employer may not sue the employee to
recover the past overpayments directly. 33 U.S.C. §§ 908(j)(3),
922; Ceres Gulf v. Cooper, 957 F.2d 1199, 1205-07 (5th
Cir.1992).
13
889 F.2d 626 (5th Cir.1989), cert. denied, 494 U.S. 1082,
110 S.Ct. 1813, 108 L.Ed.2d 944 (1990).
7
proper LHWCA procedure immunizes them from liability to Vincent for
the compensation they wrongfully withheld from him.
As discussed above, the LHWCA does not obligate the district
court to refrain from enforcing a compensation order merely because
the employer has belatedly challenged it in the Department of
Labor. Therefore, the district court did not err in refusing to
stay or dismiss the case.
The defendants' due process argument is as readily rejected.
A denial of due process cannot result when the defendants simply
refuse to follow the process provided in the LHWCA. The LHWCA
provides the employer with a meaningful opportunity to be heard
during the administrative process.14 The employer can request a
pre-deprivation hearing before an administrative law judge, and can
have the ALJ's compensation order reviewed by the Benefits Review
Board and then by this Court.15 The defendants did not follow these
procedures in January 1992; rather, they took it upon themselves
to decide that they were no longer bound by the valid 1987
compensation order. They cannot now be heard to argue that their
own failure to follow the LHWCA constitutes a deprivation of due
process.
We AFFIRM the judgment of the district court.
III.
We turn last to Vincent's request for attorneys' fees.
14
Bunol v. George Engine Co., 996 F.2d 67, 69 (5th
Cir.1993).
15
In re Compensation, 889 F.2d at 631-32.
8
Vincent's brief requested an award of "not less than $5,000" in
attorneys' fees.
Because the defendants denied their liability but lost this
appeal, they are liable to Vincent for the attorneys' fees he
incurred in defending this appeal.16 We cannot pass on Vincent's
request now, however, because it does not supply us with the
information required in this Circuit for a LHWCA attorneys' fee
request. Vincent must provide us with an itemized attorneys' fee
application from which we can discern "the hours worked, the
reasonable hourly rate for each attorney involved, the size of the
recovery, the quality of the work and the complexity of the issues
involved".17 The application may only include costs Vincent
incurred defending this appeal; he must separately apply to the
district court for an award of attorneys' fees incurred at that
level.18
As we have done in the past, we will allow Vincent 20 days
from the entry of this judgment to submit a revised application for
attorneys' fees.19 The defendants/appellants may file a responsive
brief and affidavits, if they wish, within 20 days after the date
16
33 U.S.C. § 928.
17
Ayers S.S. Co. v. Bryant, 544 F.2d 812, 814 (5th
Cir.1977).
18
"The statute, in our view, intends each body—the hearing
examiner, the Board, and the reviewing court—separately to assess
the worth of the claimant's representation before it. Hence we,
will only award fees for the work of counsel which was directly
related to our review". Id.
19
See id.; Hole v. Miami Shipyards Corp., 640 F.2d 769, 774
(5th Cir. Unit B Mar. 1981).
9
Vincent files his application.
It is SO ORDERED.
10