United States Court of Appeals,
Fifth Circuit.
No. 93-3674.
Curtis C. KEEN, Plaintiff-Appellant,
v.
EXXON CORPORATION and Petroleum Casualty Company, Defendants-
Appellees.
Oct. 18, 1994.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before KING and BENAVIDES, Circuit Judges, and LEE,1 District
Judge.
TOM S. LEE, District Judge:
Curtis C. Keen appeals the district court's dismissal of his
petition for enforcement of a supplementary order of default issued
by a deputy director of the Department of Labor imposing a twenty
percent penalty against appellant Exxon Corporation for its alleged
failure to timely pay compensation benefits to Keen under the
Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.
§§ 901-949. Because we are of the opinion that Exxon paid the
award within ten days of the date the underlying compensation order
became final and enforceable, the deputy director's supplemental
order of default was not "in accordance with law" and was therefore
not enforceable by resort to section § 18(a) of the LHWCA, 33
U.S.C. § 918(a). Accordingly, we affirm.
Keen, a former Exxon employee, sustained a work-related injury
1
District Judge of the Southern District of Mississippi,
sitting by designation.
1
in November 1983, for which he filed a claim for compensation
benefits under the LHWCA. Exxon controverted his claim and on
February 9, 1990, following an evidentiary hearing, a Department of
Labor administrative law judge (ALJ) concluded, as reflected in a
compensation order signed that date, that Keen was entitled to an
award of compensation, with interest, for temporary and permanent
disability from and after the date of injury, based on an average
weekly wage of $724.95. The order did not state the total amount
of compensation to be paid by Exxon and provided, instead, as such
orders often do, that "the specific dollar computations shall be
administratively performed by the Deputy Commissioner."2 The order
further stated, "[A]ll computations of benefits and other
calculations which may be provided for in this Order are subject to
verification and adjustment by the Deputy Commissioner."
The ALJ forwarded the compensation order to the deputy
director who, on February 16, 1990, filed the order and undertook
to send copies of the order to Exxon and its attorney. The copies
were accompanied by a notice that the ten-day time period for
compliance set forth in section 14(f) of the LHWCA, 33 U.S.C. §
914(f), commenced that date. Exxon received its copy of the order
on February 27, 1990,3 and thereafter, through counsel, began
inquiring of the deputy director when the director would complete
2
The title "Deputy Commissioner" has been changed to "Deputy
Director." See 20 C.F.R. § 702.105.
3
Inexplicably, the deputy director mailed the copies of the
order to the wrong addresses for both Exxon and its attorney, and
the record indicates that Exxon first received its copy of the
ruling on February 27, 1990, eleven days after it was filed.
2
the computation of benefits due. On March 5, 1990, the deputy
director furnished the award calculations ordered by the ALJ and
within ten days, on March 14, 1990, Exxon paid compensation to Keen
in the amount of $63,831.84.
In the interim, Keen filed an application for a supplemental
order of default with the deputy director, claiming that Exxon
should pay a twenty percent penalty provided by section 14(f) of
the LHWCA, 33 U.S.C. § 914(f),4 for its failure to pay the
compensation award within ten days of the February 16 filing of the
ALJ's compensation order. By supplemental order of default filed
September 29, 1992, the director found that Exxon's payment had not
been timely and awarded Keen an additional $12,766.37, representing
twenty percent of Keen's compensation award.
Keen petitioned the district court pursuant to section 18(a)
of the LHWCA, 33 U.S.C. § 918(a),5 for enforcement of the
director's supplemental order. By consent of the parties, the case
4
It is not clear precisely when this request was filed,
though it appears that it must have been filed before May 2,
1990, for correspondence from a Department of Labor assistant
deputy commissioner of that date referenced "the claimant's
request for imposition of the 207 penalty under Section 14(f)."
5
"Although an order [entered under the LHWCA] "requires'
payment, neither an effective order nor a final order has
coercive effect. By statute, a beneficiary may compel the
employer to make payments under an order only by initiating a
proceeding in district court." Henry v. Gentry Plumbing &
Heating Co., 704 F.2d 863, 864 (5th Cir.1983); see also 33
U.S.C. § 918(a) (prescribing procedure for enforcing order by
filing suit in district court). Section 18(a) provides for the
enforcement of orders found to be "in accordance with law," and
provides for appellate "[r]eview of the judgment ... entered [by
the district court] ... as in civil suits for damages at common
law."
3
was heard by a magistrate judge who, on cross-motions for summary
judgment, refused to enforce the supplemental order.
The LHWCA provides that "[i]f any compensation payable under
the terms of an award is not paid within ten days after it becomes
due, there shall be added to such unpaid compensation an amount
equal to 20 percentum thereof." 33 U.S.C. § 914(f). Compensation
"becomes due" when the order awarding compensation becomes
effective, which occurs when the order is filed in the offices of
the deputy commissioner as provided in 33 U.S.C. § 919(e). 33
U.S.C. § 921. However, this court recognized in Severin v. Exxon
Corp., 910 F.2d 286, 289 (5th Cir.1990), that an order "cannot
become "effective' or "due' if it is not a "final decision and
order' of the ALJ." Severin, 910 F.2d at 289 (citing 20 C.F.R. §
702.348 (1989)); see also Bunol v. George Engine Co., 996 F.2d 67,
69 (5th Cir.1993) ("A compensation order cannot become "due' if it
is not "a final decision and order' of the ALJ."); Lazarus v.
Chevron USA, Inc., 958 F.2d 1297 (5th Cir.1992). The magistrate
judge concluded that the underlying compensation order issued by
the ALJ by its own terms did not become effective as a final order
until March 5, 1990, when the deputy director furnished Exxon with
the award calculations directed by the order. Exxon's March 14
payment of the compensation award, having been made within ten days
of March 5, was therefore timely. Accordingly, the magistrate
judge vacated the supplemental order of default as not being "in
accordance with law." See 33 U.S.C. § 918(a).
In Severin, this court explained:
4
To constitute "a final decision and order" of the ALJ, the
order must at a minimum specify the amount of compensation due
or provide a means of calculating the correct amount without
resort to extra-record facts which are potentially subject to
genuine dispute between the parties.... A compensation order
which fails to do so is therefore not final and enforceable
and is not subject to a section 14(f) penalty, even if the
incomplete order has been filed in the office of the deputy
commissioner.
Severin, 910 F.2d at 289. Seizing on this language, Keen argues
that while the compensation order filed in the office of the deputy
director on February 16, 1990 did not specify the total amount of
compensation due him, it did provide the means of calculating the
correct amount of the award without resort to any potentially
disputed extra-record facts. According to Keen, Severin
effectively defines a "final and enforceable order" as one from
which the requisite calculations can readily be performed without
consideration of extra-record facts as to which the parties might
not agree. He points out that the magistrate judge even "tend[ed]
to agree ... that the calculations were readily available and
determinable from [the ALJ's] opinion," and reasons, therefore,
that under Severin, it necessarily follows that the supplemental
order was final and enforceable when filed. Exxon maintains, on
the other hand, that the underlying award was not final until the
deputy director completed calculating the compensation due as
instructed in the ALJ's order.
This court concludes that the magistrate judge properly held
that the ALJ's compensation order did not become final until such
time as the deputy director furnished the computations dictated by
that order. The compensation order, by its terms, required that
5
the deputy director, not Exxon, make "the specific dollar
computations" of the compensation awarded by the order. Perhaps,
as Keen argues, Exxon could easily have made the computation on its
own, with little input from the deputy director or resort to other
sources. Indeed, the magistrate judge apparently shared Keen's
view that the calculations "were readily available and determinable
from [the ALJ's] opinion." Nevertheless, because the compensation
order explicitly directed the deputy director to perform the
"specific dollar computations," the order was not final and
enforceable until the deputy commissioner complied with that
directive.
This court did hold in Severin that an order which neither
provides that a specific amount of compensation is due nor includes
such information as would enable the employer to calculate the
amount due is not final and enforceable. Severin, 910 F.2d at 289.
Severin does not hold, though, that the converse is always true.
That is, Severin does not hold that an order which does include
this information is necessarily final and enforceable. Whether
Exxon could have made the calculations, in our view, is not
decisive here; rather, what is determinative is the compensation
order's explicit directive to the deputy director. The court
recognizes, of course, that a central theme of the LHWCA is the
quick, inexpensive and prompt enforcement of unpaid compensation
awards. See Lazarus v. Chevron USA, Inc., 958 F.2d 1297, 1300 (5th
Cir.1992) (quoting Tidelands Marine Serv. v. Patterson, 719 F.2d
126, 127 n. 1 (5th Cir.1983)). The penalty prescribed by section
6
14(a) is intended as a means of ensuring the employer's timely
compliance with its obligation to pay compensation awards.
However, just as the employee is entitled to expect the employer's
timely compliance with the obligations imposed upon it by a
compensation order, so, too, are the employee and employer entitled
to expect the deputy director's performance of the obligations
dictated by compensation orders.6 The magistrate judge, in the
court's opinion, properly declined to limit the inquiry to whether
the compensation order specified the amount of compensation due or
provided the means by which to calculate the amount due and
considered, instead, the specific directive contained in that
order. The order of the district court is AFFIRMED.7
6
It appears that ALJs, perhaps not routinely but at least
regularly, include in compensation orders the very language that
has given rise to the present controversy. The problem that we
have confronted here can readily be avoided by the elimination of
such language from future orders, or alternatively, if such
language is used, by the setting of a specific time period for
the director's performance of the award computation as a means of
achieving finality.
7
Exxon argued in the district court, and argues here that
the compensation award was not effective and final because the
district director failed to properly notify Exxon of the order by
mailing copies to Exxon's last known address in accordance with
the procedures set forth in section 21(a) of the Act, 33 U.S.C. §
921(a), and asserted further that the director's supplemental
order violated Exxon's right to due process since the director,
in violation of the statute and Department of Labor regulations,
failed to grant Exxon a hearing prior to entry of that order.
This court, as did the district court, finds it unnecessary to
reach these issues.
7