UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MAERSK CONTAINER SERVICE
COMPANY, INCORPORATED,
Petitioner-Appellant,

v.

JEANA F. JACKSON, District Director
for the Sixth Compensation District,
                                                                      No. 97-1056
Office of Workers' Compensation
Programs, United States Department
of Labor; JOHN VITTONE, Chief
Judge, Office of Administrative
Law Judges, United States
Department of Labor,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CA-96-2302-2-23)

Submitted: October 31, 1997

Decided: December 4, 1997

Before HALL, WILKINS, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Stephen E. Darling, Joseph D. Thompson III, SINKLER & BOYD,
P.A., Charleston, South Carolina, for Appellant. J. Davitt McAteer,
Acting Solicitor of Labor, Carol A. De Deo, Associate Solicitor, Sam-
uel J. Oshinsky, Mark A. Reinhalter, UNITED STATES DEPART-
MENT OF LABOR, Washington, D.C., for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This matter is on appeal from the district court's denial of Maersk
Container Service Company's mandamus petition. For the reasons set
forth below, we affirm.

Pursuant to 28 U.S.C. § 1361 (1994), Maersk brought a mandamus
action seeking an order compelling the District Director of the Office
of Workers' Compensation Programs (the "Director") and the Chief
Judge of the Office of Administrative Law Judges ("OALJ") to com-
ply with certain statutes and regulations promulgated under the Long-
shore and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 901-
950 (West 1986 & Supp. 1997) ("LHWCA").

The relevant facts in this case are not disputed. James E. Hamilton
filed a claim for benefits under the LHWCA as a result of injuries he
sustained during the course of his employment for Maersk. Maersk
and Hamilton agreed to resolve their disputes and all other aspects of
Hamilton's LHWCA compensation claim by way of a lump sum set-
tlement. Through counsel, both Hamilton and Maersk submitted an
application for approval of the settlement to the Defendant Director.

The Director approved the settlement agreement in a Compensation
Order that was filed and served on December 1, 1995. On December
11, Hamilton sent a letter to Maersk's claim representative seeking to
withdraw from the settlement agreement. The Director received that
letter on December 22, deemed it a timely motion for reconsideration,

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and subsequently filed a Supplemental Compensation Order vacating
the December 1 Compensation Order. The Director then transferred
Hamilton's claim to the OALJ for formal agency adjudication.

Maersk then filed the complaint in district court requesting manda-
mus relief which is the subject of this appeal. Maersk sought an order
that would: (1) terminate the pending LHWCA administrative pro-
ceeding with prejudice and (2) require the administrative adjudicators
to reinstate the vacated December 1 Compensation Order approving
the settlement agreement.

Meanwhile, in the administrative proceeding before the OALJ,
Maersk raised the same objection as presented to the district court in
the mandamus complaint. Maersk asserted that Hamilton's claim was
finally resolved by the Director's December 1 Compensation Order.
The ALJ assigned to hear the claim (who is not a defendant in this
action) remanded the proceedings to the Director for investigation and
fact-finding regarding whether the agreement was subject to rescis-
sion for fraud, duress, or incapacity. Hamilton's claim is still pending
before the Director.

Following a hearing, the district court granted the Defendants'
motion to dismiss the complaint. Ruling from the bench, the court
stated that the case was premature as administrative remedies had not
been exhausted. Maersk timely appealed.

Maersk argues that the LHWCA and its corresponding regulations
mandate that an employer be discharged from any further liability
once a settlement is approved by the Director. See 33 U.S.C. § 908(i).
It contends that the Director and the OALJ's duty to enforce this stat-
ute is sufficiently clear to warrant a writ of mandamus. This court
agrees with the district court that Maersk has failed to state a cause
of action upon which relief can be granted.

A writ of mandamus is a drastic remedy to be invoked only in the
most compelling circumstances. See Kerr v. United States Dist.
Court, 426 U.S. 394, 402 (1976). A writ of mandamus will not lie
absent a showing that: (1) plaintiff has a clear right to the relief
sought; (2) defendants have a plainly defined ministerial duty to per-
form the act in question; and (3) plaintiff has no adequate alternative

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remedy and will suffer irreparable harm absent judicial intervention.
See United States v. Helvering, 301 U.S. 540, 543-44 (1937).

Maersk has advanced no claim which merits this extraordinary
remedy. First, Maersk has not shown that either the statute or the reg-
ulations create the necessary right. Maersk bases its right to relief on
§ 908(i)(3), which states that "[a] settlement approved under this sec-
tion shall discharge the liability of the employer." While Maersk is
correct that such settlements are not subject to subsequent modifica-
tion, see 33 U.S.C. § 922 (specifically exempting orders pursuant to
§ 908(i) agreements), the regulation providing for motions for recon-
sideration within ten days of the entry of a compensation order does
not specifically exempt orders entered pursuant to settlement agree-
ments. 20 C.F.R. § 802.206 (1997). While we express no opinion on
whether approved settlement agreements are subject to 20 C.F.R.
§ 802.206, we find that LHWCA does not reflect a clear right to
either dismissal of a motion for reconsideration or summary dismissal
of a subsequent administrative claim filed after a settlement agree-
ment is approved. See 33 U.S.C. § 923(a) (granting discretion to
Director to investigate claims in such a way as to"best ascertain the
rights of the parties").

In addition, the applicable statute does not establish a "positive
command" on the part of Defendants to perform a specific action.1 As
such, the "clear duty" requirement for mandamus is absent. See
Pittston Coal Group v. Sebben, 488 U.S. 105, 121-23 (1988). Even
if the employer's liability is finally and completely discharged after
a settlement agreement is approved, the statutes do not clearly state
how such a right is to be enforced. That is, it may be that the dis-
charge should be entered as a defense in any future action, rather than
requiring dismissal by the administrative officials sua sponte. Again,
we express no opinion on the correct interpretation of the relevant
statutes, we hold only that Maersk has failed to show either a "clear
right" to the relief it requests or a "clear duty" on the part of the
Defendants to perform a certain action.
_________________________________________________________________
1 Furthermore, it is unclear what the Defendant Chief Judge could do
at this point in time. The case is no longer before the OALJ, and even
if it were, it has been assigned to a different judge.

                    4
Maersk also does not meet the third requirement for mandamus,
because it has not shown that, absent judicial intervention, it will suf-
fer irreparable harm or that it lacks an adequate alternative remedy.
Maersk contends that it has the right to avoid litigation on this claim.
However, at this point in time, Maersk has not suffered any legally
cognizable harm. Mere lapse of time and litigation expense do not
constitute irreparable harm. See F.T.C. v. Standard Oil Co., 449 U.S.
232, 244 (1980). Moreover, if the Department of Labor dismisses
Hamilton's claim or finds it without merit, Maersk's fear of future
injury will be moot.

In addition, Maersk does not lack adequate alternative remedies.
Currently, Maersk's assertions are being considered by the Director.
If a formal hearing is held by an ALJ, Maersk has the right to appeal
any adverse decision to the Benefits Review Board ("BRB"). 33
U.S.C. § 921(b). Moreover, Maersk may appeal the BRB's decision
to this court. 33 U.S.C. § 921(c). Any procedural objection that
Maersk may have regarding the administrative procedure would be
preserved for appeal. See F.T.C., 440 U.S. at 244-45.

In summary, Maersk has not demonstrated that it has a clear right
to the relief sought, that defendants have a clear duty to dismiss Ham-
ilton's claim, or that it will be irreparably injured if this court does
not intervene.2 Therefore, we affirm the district court's order dismiss-
_________________________________________________________________
2 In support of its argument, Maersk cites Ingalls Shipbuilding, Inc. v.
Asbestos Health Claimants, 17 F.3d 130, 134 (5th Cir. 1994). In Ingalls,
the Fifth Circuit affirmed the grant of mandamus relief, ordering the
Director to transfer asbestos claims to the OALJ for a hearing. The
Director had, despite numerous requests, continued to delay the transfer,
even though LHWCA and the corresponding regulations required the
Director, upon a party's application, to transfer the case for a hearing.

The instant case differs from Ingalls in a crucial way. As discussed
above, § 908(i) does not clearly create a duty on the part of the Director
to do a particular action. While the Director is presumably charged with
ensuring that an employer's liability is discharged pursuant to an
approved settlement agreement, there is no requirement that the Director
enforce that provision pursuant to a specific procedure. Conversely, in
Ingalls, the director was explicitly required, by statute and by regula-
tions, to transfer the cases. Further, in Ingalls, the Fifth Circuit had bind-
ing circuit precedent clearly outlining the Director's duty. Id. at 133.
Because such is lacking here, Maersk cannot show a clear and mandatory
duty.

                     5
ing Maersk's mandamus complaint. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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