Burgo v. General Dynamics Corp.

• Decision Date: 27 August 1997
• Docket Number: No. 1543,D,1543
• Citation: 122 F.3d 140
• Parties: Manuel BURGO, Jr., Plaintiff-Appellee, v. GENERAL DYNAMICS CORPORATION, Defendant-Appellant. ocket 96-7832.
• Court: U.S. Court of Appeals — Second Circuit

Page 140

122 F.3d 140

38 Fed.R.Serv.3d 711

Manuel BURGO, Jr., Plaintiff-Appellee, v. GENERAL DYNAMICS CORPORATION, Defendant-Appellant.

No. 1543, Docket 96-7832.

United States Court of Appeals, Second Circuit.

Argued May 13, 1997.

Decided Aug. 27, 1997.

Booth M. Kelly, Jr., New London, CT (John W. Greiner, Murphy & Beane, New London, CT, of counsel and on brief), for Defendant-Appellant. William N. Batty, Jr., Boston, MA (Steven B. Stein, Batty & Stein, Boston, MA, of counsel and on brief), for Plaintiff-Appellee.

Before: WINTER, Chief Judge, CARDAMONE, Circuit Judge, and HAIGHT, ^* District Judge.

CARDAMONE, Circuit Judge:

Defendant General Dynamics Corporation (defendant or appellant) appeals from a judgment General Dynamics argues on appeal that the District Director of the Compensation Act erroneously failed to apply Rule 6(a) of the Federal Rules of Civil Procedure in calculating the ten-day period within which payment of the compensation award was due. When computing the time within which acts governed by the Federal Rules of Civil Procedure must be performed, intermediate Saturdays, Sundays and legal holidays shall not be counted if the period of time is less than 11 days. Fed.R.Civ.P. 6(a).

of the United States District Court for the District of Connecticut (Squatrito, J.) awarding plaintiff Manuel Burgo, Jr. a $28,000 penalty payment under a supplemental order issued pursuant to the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (LHWCA or Compensation Act). The § 914(f) penalty was incurred when General Dynamics failed to make timely payment of a negotiated settlement of plaintiff's disability claims. See 33 U.S.C. § 914(f) (Compensation owed to injured longshoremen must be paid within ten days after it becomes due).

Does ten days in § 914(f) mean ten business days as in the federal rules or ten calendar days? We think Congress meant ten calendar days, and although sympathetic to equitable complaints of good faith by an employer, we can find no escape from the statutory language.

BACKGROUND

In late summer 1994 plaintiff Manuel Burgo and his employer, defendant General Dynamics, negotiated a settlement of various pending disability claims filed by Burgo with the United States Department of Labor. Burgo had been seeking compensation pursuant to the Longshore and Harbor Workers' Compensation Act for injuries sustained in the course of his employment. The settlement, which consisted of a lump sum payment of $140,000, was approved on August 31, 1994 in an order (compensation order or order) issued by an administrative law judge. The District Director of the Compensation Act filed the compensation order on September 13, 1994. General Dynamics received a copy of the filed order on September 16, 1994 and mailed a check for the full settlement amount three days later. Burgo's attorney received the check on Monday, September 26, 1994--13 days after the order was filed.

On October 31, 1994 Burgo sought a supplemental compensation order for an additional payment of $28,000--20 percent of the settlement amount--on the ground that General Dynamics had failed to deliver the check within ten days of the filing of the compensation order, as required under § 14(f) of the Compensation Act, codified as 33 U.S.C. § 914(f). The Director granted Burgo's request and issued a supplemental compensation order on November 17, 1994. General Dynamics subsequently filed a motion for reconsideration and requested a hearing, maintaining that in calculating the ten day payment period the Director had failed to comply with the time computation provisions of Fed.R.Civ.P. 6(a). The Director denied defendant's motion and declined to hold a hearing. The company subsequently filed an appeal with the Benefits Review Board, which held that it did not have jurisdiction to hear it.

On March 29, 1995 Burgo filed suit in the District of Connecticut to enforce the supplemental compensation order. The district court dismissed the original complaint as defective on its face, but later entered a judgment in plaintiff's favor on an amended complaint. Two days later, on June 20, 1996, the district court filed a clarification of judgment nunc pro tunc. It subsequently denied defendant's motion for relief from the judgment made pursuant to Fed.R.Civ.P. 60(b).

DISCUSSION

I Penalties under § 914(f)

Section 914(f) provides in part 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 per centum thereof, which shall be paid at the same time as, but in addition to, such compensation." 33 U.S.C. § 914(f). The parties agree that payment of the negotiated settlement amount became due on September 13, 1994 when the It is undisputed that although General Dynamics mailed the settlement check within the ten-day period, Burgo did not actually receive the $140,000 payment until September 26--13 days after the compensation order was filed. From these uncontroverted facts it appears that appellant is clearly subject to a § 914(f) penalty. The employer nonetheless insists that the ten-day payment period specified in the statute should be read as ten business days, not ten calendar days.

Director filed the compensation order approving the settlement. See Twine v. Locke, 68 F.2d 712, 714 (2d Cir.1934) ("[S]ection 14(f) imposes a penalty for ten days' delay in payment according to the terms of a compensation order which has been duly filed and served...."). Compensation is deemed paid when the claimant receives it, not when the employer places a check in the mail. See Sea-Land Serv., Inc. v. Barry, 41 F.3d 903, 909 (3d Cir.1994).

Analysis of the proper interpretation of a statute must begin with the language of the statute itself. See Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2055, 64 L.Ed.2d 766 (1980). If the language adopted by Congress is unambiguous, we need not resort to extrinsic sources to further illuminate its meaning. United States v. Piervinanzi, 23 F.3d 670, 677 (2d Cir.1994). Moreover, unless otherwise defined, individual statutory words are assumed to carry their "ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979); Union Pacific R.R. Co. v. Hall, 91 U.S. 343, 347, 23 L.Ed. 428 (1875) ("Congress may well be supposed to have used language in accordance with the common understanding.").

A day is the period of time during which the earth makes one revolution on its axis, the average length of this interval being 24 hours. Merriam-Webster's Collegiate Dictionary 294 (10th ed.1997). We have little difficulty in concluding that ten days is an unambiguous phrase whose ordinary, common meaning is ten consecutive 24-hour periods. See Reid v. Universal Maritime Serv. Corp., 41 F.3d 200, 201 (4th Cir.1994). Had Congress intended to exclude weekends and holidays, it could readily have specified that payment must be made within ten business days. While, as appellant notes, Congress might also have made its intent more clear by declaring the § 914(f) penalty due after ten calendar days, the modifier "calendar" is employed primarily to distinguish calendar days from business days when both phrases are used. Because the most natural interpretation of the bare phrase ten days is clearly ten calendar days, we will not find an ambiguity in the legislative language simply because Congress could have reinforced its meaning with the use of additional language.

Having determined that the challenged statute is unambiguous and therefore enforceable according to its plain meaning, our inquiry would ordinarily be at an end. Appellant contends, however, that the time computation provisions of Fed.R.Civ.P. 6(a), which require exclusion of weekends and holidays from the calculation of time periods of less than 11 days, overrides the plain language of § 914(f).

A. Applicability of Rule 6(a)

Rule 6(a) provides in part that "[i]n computing any period of time prescribed or allowed by these rules, ... or by any applicable statute, ... [if] the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation" (the Intermediate Day exclusion). Fed.R.Civ.P. 6(a). Rule 81(a)(6) further specifies that the Federal Rules of Civil Procedure "apply to proceedings for enforcement or review of compensation orders under [33 U.S.C. §§ 918, 921] except to the extent that matters of procedure are provided for in [the LHWCA]." Fed.R.Civ.P. 81(a)(6). General Dynamics contends that because the Compensation Act itself contains no provision governing the computation of time, Rule 6(a) must apply through Rule 81(a)(6).

The interpretive maxim expressio unius est exclusio alterius would suggest that the express inclusion of only §§ 918 and 921 in Rule 81(a)(6) should be construed as the Section 914(f) simply sets forth the circumstances under which a penalty is due, it does not purport to outline the procedure through which a claimant must go to recover such a penalty. Accordingly, the calculation of a payment deadline under § 914(f) cannot reasonably be characterized as an enforcement proceeding to which the Federal Rules of Civil Procedure apply. See Reid, 41 F.3d at 202 (holding that § 914(f) penalty is substantive penalty enforced through procedure governed by § 918). But see Quave v. Progress Marine, 912 F.2d 798, 800 (5th Cir.1990), cert. denied, 500 U.S. 916, 111 S.Ct. 2012, 114 L.Ed.2d 99 (1991) (holding that a penalty assessment under § 914(f) of the LHWCA is a "supplementary order declaring the amount of the default" within the meaning of § 918(a) and hence governed by Rule 6(a)).

deliberate exclusion of all other sections of the Compensation Act. Moreover, Rule 81(a)(6) is limited on its face to "proceedings for enforcement...