1District Judge of the Southern District of Mississippi,

sitting by designation. 

1

United States Court of Appeals,

Fifth Circuit.

No. 93-3674.

Curtis C. KEEN, Plaintiff-Appellant,

v.

EXXON CORPORATION and Petroleum Casualty Company, DefendantsAppellees.

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
 

2The title "Deputy Commissioner" has been changed to "Deputy

Director." See 20 C.F.R. § 702.105. 

 

3Inexplicably, 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

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
 

4It 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

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

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:
5

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
6

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
 

6It 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. 

 

7Exxon 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

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