Harris v. Briscoe, 11996.

• Decision Date: 22 April 1954
• Docket Number: No. 11996.,11996.
• Citation: 94 US App. DC 92,212 F.2d 619
• Parties: HARRIS et al. v. BRISCOE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

94 US App. DC 92, 212 F.2d 619 (1954)

HARRIS et al. v. BRISCOE.

No. 11996.

United States Court of Appeals District of Columbia Circuit.

Argued November 5, 1953.

Decided April 22, 1954.

Petition for Reconsideration Denied June 2, 1954.

Mr. J. Joseph Barse, Washington, D. C., for appellants Maloney Concrete Co., Inc., and United States Fidelity & Guaranty Co. Messrs. H. Mason Welch, John R. Daily and J. Harry Welch, Washington, D. C., also entered appearances for appellants Maloney Concrete Co., Inc., and United States Fidelity & Guaranty Co.

Mr. H. Clay Espey, Washington, D. C., for appellant Theodore J. Harris.

Mr. Lamar Brown, Washington, D. C., for appellee.

Mr. Ward E. Boote, Asst. Sol., United States Department of Labor, Washington, D. C., was allowed to argue, by special leave of Court, to set forth the position of that Department.

Before STEPHENS, Chief Judge, and EDGERTON and WILBUR K. MILLER, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

The Deputy Commissioner made an award of compensation to Louis M. Briscoe December 1, 1952, under the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424 (1927), 33 U.S.C. § 901 et seq. (1952), which has heretofore been made applicable as a workmen's compensation act in this jurisdiction. The award became effective the day it was filed by the Deputy Commissioner, but has not yet become final¹ because the alleged employers and their insurance carrier² promptly petitioned for review under § 21(b) of the Act, 44 Stat. 1436 (1927), 33 U.S.C. § 921(b) (1952). Their appeal from the District Court's order of dismissal is pending here as No. 11,893. Although the award is not final, it has been continuously since its entry, and is now, effective because the District Court did not stay its effectiveness during the review proceeding under § 21(b).

Many months passed during which Briscoe received no payments although the award had been in effect since December 1, 1952. He could not sue for enforcement under § 21(c) because the award had not become final.³ He could and did proceed, however, under § 18 of the Act, 44 Stat. 1434 (1927), 33 U.S.C. § 918 (1952), which provides procedure for the enforcement of an effective award which has not become final.⁴ Pursuant to his application thereunder, the Deputy Commissioner issued a supplementary order October 5, 1953, declaring the sum of $3,960.79 in default. Briscoe filed a copy of the order in the District Court, which entered judgment October 27, 1953, for the amount found in default by the Deputy Commissioner, and later refused to permit a supersedeas bond to be posted.

The employer's appeal from the judgment entered under § 18, which bears our No. 11,996, has not been heard on the merits. It is now before us on the appellants' motion for permission to supersede. We stayed execution of the judgment pending our disposition of the motion.

Section 18 permits review of a judgment rendered thereunder "as in civil suits for damages at common law." Since defendants in such civil suits may supersede as a matter of right, the employer is entitled, upon executing bond, to be granted supersedeas of the § 18 judgment pending appeal, unless some other provision of the Act forbids it. Briscoe says the following provision of § 21(b) has that effect:

"* * * The payment of the amounts required by an award shall not be stayed pending final decision in any such proceeding unless upon application for an interlocutory injunction the court, on hearing, after not less than three days\' notice to the parties in interest and the deputy commissioner, allows the stay of such payments, in whole or in part, where irreparable damage would otherwise ensue to the employer. * * *"

They contend that, because payment of the amounts required by the award was not stayed by the District Court in the proceeding under § 21(b), the qualified prohibition against the stay of payment contained in the quoted provision is therefore absolute, and forbids supersedeas with respect to a judgment under § 18 for defaulted installments. The validity of that contention is the single question here.

Although it "requires" payment, the Deputy Commissioner's award, standing alone, has no coercive effect. And in a review proceeding under § 21 (b) the District Court cannot coerce payment of accrued installments, either pendente lite or in a final judgment affirming the award. By express provision of the Act, the only methods of enforcement available to a beneficiary are those set out in § 21(c) and § 18,⁵ each of which requires a new proceeding in the District Court, separate and distinct from that in which the award is reviewed under § 21(b).

It is therefore clear that in a proceeding under § 21(b) the employer is under no legal compulsion to make compensation payments, and will never be subject to such compulsion unless and until a judgment is entered against him under § 21(c) or § 18. So, unlike the writ of supersedeas with respect to a judgment under § 18, which suspends the beneficiary's right to collect through coercive legal process, a stay in a § 21(b) proceeding would suspend the beneficiary's right even to seek a judgment under § 18, because it would suspend the effectiveness of the award itself.⁶

We conclude that Congress did not intend the language of § 21(b), which qualifiedly forbids staying the effectiveness of the award itself, to be assimilated into § 18 and treated as a prohibition against supersedeas with respect to a money judgment rendered under that section. That is to say, the statutory provision that a beneficiary's right to sue shall not be stayed, except in compelling circumstances, ought not to be regarded as a provision that, when he has sued and obtained judgment, the right to supersede shall be denied the employer.

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