Williams v. Jones

• Decision Date: 09 June 1993
• Docket Number: No. 93-1054,93-1054
• Citation: 11 F.3d 247
• Parties: James D. WILLIAMS, Plaintiff, Appellee, v. John JONES d/b/a Nicole Enterprises, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 247

11 F.3d 247

27 Fed.R.Serv.3d 1258

James D. WILLIAMS, Plaintiff, Appellee, v. John JONES d/b/a Nicole Enterprises, Defendant, Appellant.

No. 93-1054.

United States Court of Appeals First Circuit.

Heard June 9, 1993.

Decided Dec. 3, 1993.

Marshall J. Tinkle, with whom Thompson, McNaboe, Ashley & Bull, Portland, ME, was on brief, for defendant, appellant.

Douglas C. Baston, with whom Howard & Bowie Law Offices Damariscotta, ME, was on brief, for plaintiff, appellee.

Before TORRUELLA, SELYA and CYR, Circuit Judges.

CYR, Circuit Judge.

In 1978, plaintiff-appellee James Williams was injured as a result of a fall from the boom of a fishing vessel owned by his employer, defendant-appellant John Jones, d/b/a Nicole Enterprises (Jones). After Williams was diagnosed with a herniated disc, he filed a claim against Jones for compensation benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Secs. 901-50. ¹ In March 1981, a Department of Labor (DOL) administrative law judge (ALJ) found that Williams had a "temporary total disability," see id. Sec. 908(b), and ordered Jones to commence immediate payments to Williams in an amount equal to two-thirds of Williams's average weekly wage of $250, effective from October 1978. ² See id. Secs. 906, 910. Notwithstanding two successful appeals to the Benefits Review Board (BRB) by Jones, see id. Sec. 921(b), ³ ultimately the BRB affirmed a compensation award in favor of Williams. We denied Jones's petition for judicial review in 1990. See id. Sec. 921(c). Notwithstanding the finality of the compensation award for LHWCA purposes, see supra note 3, Williams alleges that he has received only $450 in benefit payments from Jones to date.

On August 7, 1992, Williams brought the present enforcement action in federal district court, pursuant to LHWCA subsections 921(d) and (e):

(d) If any employer or his officers or agents fails to comply with a compensation order making an award, that has become final, any beneficiary of such award or the deputy commissioner making the order, may apply for the enforcement of the order to the Federal district court for the judicial district in which the injury occurred.... 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 writ of injunction or by other proper process, mandatory or otherwise, to enjoin upon such person and his officers and agents compliance with the order.

(e) Proceedings for suspending, setting aside, or enforcing a compensation order, whether rejecting a claim or making an award, shall not be instituted otherwise than as provided in this section....

33 U.S.C. Sec. 921(d), (e) (emphasis added).

Jones opposed the petition for enforcement on the grounds that "newly discovered" evidence revealed that Williams secured the award through perjury and fraud, and that the enforcement petition was not served on Jones in compliance with Fed.R.Civ.P. 4. A magistrate judge recommended that the petition for enforcement be granted because Jones was precluded, as a matter of law, from pleading these defenses in an enforcement action brought pursuant to LHWCA section 921(d). Jones's appeal from the district court order adopting the magistrate judge's recommended decision presents two important issues of first impression relating to the LHWCA's enforcement provisions.

I. Insufficient Process and Service of Process.

Jones concedes actual notice of the filing of the section 921(d) enforcement petition with the district court, but pleads insufficient process and insufficient service of process, see Fed.R.Civ.P. 12(b)(4), (5), based on Williams's admitted failure to serve Jones pursuant to Fed.R.Civ.P. 4. See Durbin Paper Stock Co. v. Hossain, 97 F.R.D. 639, 639 (S.D.Fla.1982) ("Service of process is not effectual on an attorney solely by reason of his capacity as an attorney, [but] [t]he party must have appointed his attorney as his agent for service of process.") (collecting cases); cf. Fed.R.Civ.P. 5(b). ⁴

The Federal Rules of Civil Procedure apply in section 921(d) enforcement proceedings "except to the extent that matters of procedure are provided for in [the LHWCA]." Fed.R.Civ.P. 81(a)(6). As section 921(d) is silent on the procedures for filing, serving, and answering an enforcement petition in the district court, Jones reasons that service of process was required in accordance with Fed.R.Civ.P. 4 and 81(a)(6); without it, he argues, the district court did not obtain personal jurisdiction over him.

The magistrate judge rejected Jones's argument, citing Jourdan v. Equitable Equip. Co., 889 F.2d 637 (5th Cir.1989), a case involving companion LHWCA section 918(a). Section 918(a) enforcement proceedings normally are used to enforce compensation awards which have become "effective" but are not yet "final"; that is, during the pendency of an appeal to the BRB from the ALJ's initial award, or from the BRB to the court of appeals. See supra notes 2 and 3. Within one year after an employer's default, the employee may apply to an ALJ for a "supplementary order" declaring the amount in default. The ALJ may not issue the supplementary order except "[a]fter investigation, [and] notice, and hearing." Even then, however, the supplementary order is not self-executing. Rather, the claimant, or the ALJ, must file a certified copy of the supplementary order with the appropriate federal district court, which "shall upon filing of the copy enter judgment for the amount declared in default ... if such supplementary order is in accordance with law." ⁵

The Jourdan court held that the obligatory language of section 918(a) evinced a clear congressional intent to dispense with the "service of process" requirements of Fed.R.Civ.P. 4 in a section 918(a) enforcement proceeding brought in the district court. The magistrate judge in the present case, analogizing from Jourdan, reasoned that,

[l]ike Section 918(a), Section 921(d) utilizes imperative language; upon certain findings the court "shall enforce." The only difference is the lack of specificity regarding the method for filing the "application." In either case, the court must make preliminary findings that amount to nothing more than a procedural review of the underlying process. Assuming there were no procedural errors at the administrative level, the court has no choice but to enforce the order. Again, the court has no jurisdiction over the merits of the action. The aggrieved party would have no additional opportunity to be heard even if notice were provided according to the strict requirements of Rule 4. The logical conclusion is that Section 921(d) is a summary proceeding, and that upon filing of appropriate documentation showing that the order is final, that it was properly served, and that the employer has failed to comply, the court should issue the order.

Williams v. Jones, No. 92-0156-B, slip op. at 6 (D.Me. Oct. 27, 1992) (recommended decision) (emphasis added).

Assuming, arguendo, that Jourdan is correctly decided, section 921(d) is insufficiently analogous to section 918(a) to bear the weight given it in the recommended decision below. Section 918(a)'s bifurcated enforcement mechanism requires administrative notice to the employer, as well as an opportunity to be heard, prior to the entry of any supplementary enforcement order by the ALJ. See supra notes 2 and 5. Long before the employee ever files the ALJ's certified supplementary order with the district court, therefore, the procedural requirements of section 918(a) itself have assured that the employer was placed on notice of the impending judicial enforcement proceeding. The district court is expressly charged with determining whether "such supplementary order [was] in accordance with law." 33 U.S.C. Sec. 918(a). Thus, section 918(a) envisions an ancillary district court mechanism for enforcing supplementary enforcement orders entered by the ALJ. Arguably, at least, this is the sort of administrative alternative to service of process which would preempt the Rule 4 service of process requirement under Fed.Rule Civ.P. 81(a)(6). ⁶ In contrast, however, no notice to the employer is required prior to the commencement of a section 921(d) enforcement action in the district court. See supra p. 251.

In addition, we detect no intimation, either in the statutory language or legislative history, that Congress contemplated a section 921(d) proceeding quite so summary as indicated in the recommended decision. Even assuming that a full panoply of equitable defenses is not available to an employer in a section 921(d) enforcement action, see infra pt. II, it is nonetheless clear that the employer may contest factual allegations upon which the section 921(d) enforcement petition necessarily depends, ⁷ including the main issue whether the employer is in default. Moreover, arguably at least, the employer might be entitled to raise factual challenges relating to (1) the amount in default, ⁸ (2) whether new evidence indicates that the initial compensation order was procedurally defective, or otherwise not "in accordance with law," or (3) employee conduct that might tilt the fundamental balance of equities in favor of judicial restraint. See infra note 18. Moreover, unlike the bifurcated process involved in a section 918(a) enforcement proceeding, which presumes prior notice and hearing at the administrative level, section 921(d) constitutes the district court the employer's first and only forum for a full hearing of such factual disputes prior to the issuance of an injunctive enforcement order, with its attendant exposure to coercive contempt proceedings.

The recommended decision observes that even without a formal Rule 4 service of process requirement the district court could notify an employer informally in those cases where the court believed that an...