
USCA1 Opinion

	




          December 3, 1993  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1054                                  JAMES D. WILLIAMS,                                 Plaintiff, Appellee,                                          v.                         JOHN JONES d/b/a NICOLE ENTERPRISES,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET               The opinion  of this  Court issued on  December 3,  1993, is          amended as follows:               On page 24, the last sentence in the second paragraph "Costs                                                                      _____          are  awarded to plaintiff-appellee"  should be corrected  to read          ___________________________________          "Costs are awarded to defendant-appellant."           __________________________________________                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1054                                  JAMES D. WILLIAMS,                                 Plaintiff, Appellee,                                          v.                         JOHN JONES d/b/a NICOLE ENTERPRISES,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Torruella, Selya and Cyr,                                   Circuit Judges.                                   ______________                                 ____________________               Marshall  J. Tinkle, with  whom Thompson, McNaboe,  Ashley &               ___________________             ____________________________          Bull was on brief for appellant.          ____               Douglas C. Baston, with whom  Howard & Bowie Law Offices was               _________________             __________________________          on brief for appellee.                                 ____________________                                   December 3, 1993                                 ____________________                    CYR, Circuit  Judge.  In 1978, plaintiff-appellee James                    CYR, Circuit  Judge                         ______________          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.    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.    908-                                                            ___ ___          (b), and ordered Jones to commence immediate payments to Williams          in an  amount equal to  two-thirds of  Williams's average  weekly                                        ____________________               1The  LHWCA is  a comprehensive  statutory scheme  governing          compensation for  covered employees (e.g.,  longshoremen) due  to                                               ____          loss  of  earning  capacity caused  by  injuries  sustained while          engaged in "maritime employment" upon the navigable waters of the          United States, or  upon designated lands adjoining  those waters.          See  33  U.S.C.    902,  903.   Like state  workers' compensation          ___          statutes, the LHWCA contemplates a relinquishment  of substantive          rights  by both parties; employers are liable for compensation to          the disabled  employee "irrespective of  [the employers'] fault,"          id.    904,  while  employees' LHWCA administrative  and judicial          ___          remedies against their employer are exclusive, see id.   905; see                                              _________  ___ ___        ___          also  Potomac  Elec. Power  Co.  v. Director,  Office  of Workers          ____  _________________________     _____________________________          Compensation Programs, 449 U.S. 268, 281-82 (1980); Ceres Gulf v.          _____________________                               __________          Cooper, 957 F.2d 1199, 1205 (5th Cir. 1992).          ______               After sustaining  a work-related injury, a  covered employee          must provide written  notice to his employer within  30 days from          the date upon which he  should have discovered his disability, in          the  exercise  of reasonable  diligence.   See  33  U.S.C.   912.                                                     ___          Within  14 days  of such  notice,  or after  obtaining actual  or          constructive knowledge of the employee's disability, the employer          must either  (1) commence payments  to the employee in  an amount          equal to two-thirds of the employee's "average weekly wages," see                                                                        ___          id.    906, 908, 910, or  (2) notify the United States Department          ___          of Labor (DOL) that the  employee's right to compensation will be          contested, specifying  the grounds.   See id.    914(d).   If the                                                ___ ___          employer contests, the employee has one year from the date of his          injury,  or one year from  the employer's last voluntary payment,          to file a written claim with the DOL.  See id.   913; see also 20                                                 ___ ___        ___ ____          C.F.R.    702.201-702.286 (1993).                                          3          wage  of $250,  effective from  October 1978.2   See  id.    906,                                                           ___  ___          910.   Notwithstanding  two successful  appeals  to the  Benefits          Review Board (BRB)  by Jones, see  id.   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.                                                                    ___ ___            921(c).  Notwithstanding the finality of the compensation award                                        ____________________               2Within  ten days after the employee files an administrative          claim, see  supra note 1, the DOL must  cause notice to be served                 ___  _____          on  all interested  parties,  including  the  employer,  see  id.                                                                   ___  ___            919(b),  and  conduct  all  necessary  investigations  of   the          employee's claim, see id. 919(c);  see also 20 C.F.R.    702.331-                            ___ ___          ___ ____          702.351 (1993).  At  least ten days' notice of the    919 eviden-          tiary  hearing must  be  provided to  all interested  parties, by          personal service or registered mail.  Id.  Section 919 evidentia-                                                ___          ry hearings are  conducted pursuant to the  Administrative Proce-          dures Act, 5 U.S.C.   554,  by an ALJ.  Within 20 days  after the          hearing, the  ALJ  must either  reject the  employee's claim,  or          issue a  compensation order  designating  the extent  of the  em-          ployee's "disability"  (e.g., permanent  total, temporary  total,                                  ____          permanent partial) and  setting the amount of  biweekly compensa-          tion.  The ALJ's  compensation order becomes "effective"  as soon          as it is duly filed in  the appropriate DOL office and notice  of          the  filing  is mailed  to the  employee and  the employer.   Id.                                                                        ___             919(e), 921(a).  The employer's obligation to pay compensation          to  the employee  commences on  the date  the ALJ's  compensation          order becomes "effective."               3See Williams  v. Nicole  Enters., Inc.,  15  Ben. Rev.  Bd.                ___ ________     _____________________          Serv. 453 (1983); Williams v.  Nicole Enters., Inc., 19 Ben. Rev.                            ________     ____________________          Bd. Serv. 66 (1986).  "Effective" compensation orders remain non-          "final" pending appeal.  Once an ALJ's compensation order becomes          "effective,"  the nonprevailing party  has 30 days  to appeal the          order (or the ALJ's rejection of the  claim) to the BRB, a three-          member appellate panel  within the DOL.  See  33 U.S.C.   921(b).                                                   ___          The BRB must  accept all ALJ factual findings  supported by "sub-          stantial evidence."   Id.  If the BRB  affirms, the nonprevailing                                ___          party may petition for  judicial review by the appropriate  court          of  appeals, which  will apply  the  same "substantial  evidence"          standard of review to  the ALJ's factual findings,  but otherwise          has jurisdiction  to affirm, modify,  set aside,  or enforce  the                                                            __ _______          ALJ's compensation order.  Id.   921(c).  If no party appeals the                                     ___          ALJ's  order to  the BRB,  it becomes "final"  30 days  after the          parties are  notified that it  has been filed in  the appropriate          DOL office pursuant to   919(e).  Id.   921(a).                                            ___                                          4          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  en-          forcement 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 com-                    missioner making the order, may apply for the                    enforcement of the order to the  Federal dis-                    trict  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, manda-                    __________ __                    tory 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.   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 en-          forcement  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 enforce-          ment  action brought pursuant  to LHWCA section 921(d).   Jones's                                          5          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.          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 pro-          cess.") (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                                        ____________________               4Rule 12(b)(4) and (5) defenses  may be waived if not timely          asserted.   Marcial Ucin, S.A.  v. SS Galicia, 723  F.2d 994, 996                      __________________     __________          (1st Cir. 1983).   Jones's first  "response" to Williams's  peti-          tion,  filed  on  August 21, 1992,  did  not  contest  service of          process  pursuant to  Fed. R.  Civ.  P. 12(h)(1)(A).   Five  days          later,  however, Jones filed his answer and counterclaim, raising          the  insufficient  process  and service  of  process  defenses in          timely fashion.   See  Fed. R. Civ.  P. 12(h)(1)(B)  (defense not                            ___          waived if  raised in "matter  of course" Rule 15(a)  amendment to          responsive  pleading within  20  days of  initial  answer).   See                                                                        ___          Glater v. Eli Lilley & Co., 712 F.2d 735, 738 (1st Cir. 1983).          ______    ________________                                          6          district court,  Jones reasons  that service  of process  was re-          quired in accordance with Fed. R. Civ. P. 4 and 81(a)(6); without          it, he argues, the district  court did not obtain personal juris-          diction 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                                        ____________________               5LHWCA   918(a) provides, in pertinent part:               (a) In case  of default by the employer  in the payment               of compensation due under any award of compensation for               a  period of thirty days after  the compensation is due               and  payable, the person  to whom such  compensation is               payable may, within  one year after such  default, make               application to the [ALJ] making the  compensation order               for a supplementary  order declaring the amount  of the                                          7                    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 dis-          trict court.   The magistrate  judge in the present  case, analo-          gizing from Jourdan, reasoned that,                      _______                    [l]ike Section 918(a), Section 921(d) utiliz-                    es imperative language; upon certain findings                    the court  "shall enforce."  The only differ-                    ence 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 conclu-                    ____________ __ ____ _                    sion  is  that  Section 921(d)  is  a summary                                        ____________________               default.  After investigation, notice, and hearing,  as               provided  in  section  [919], the  [ALJ]  shall  make a               supplementary  order, declaring  the amount of  the de-               fault, which shall  be filed in the same  manner as the               compensation order.   In case the payment in default is               an  installment of  the award,  the [ALJ]  may, in  his               discretion,  declare  the  whole of  the  award  as the               amount in default.  The applicant may file  a certified               copy  of such supplementary order with the clerk of the               Federal district  court for  the  judicial district  in               which  the employer has his principal place of business               or maintains an office, or for the judicial district in               which the  injury occurred.  ...    Such  supplementary               order shall  be final,  and the  court  shall upon  the               filing of  the copy enter  judgment for the  amount de-               clared  in default by  the supplementary order  if such               supplementary  order is in accordance with law.  Review               of the judgment so entered may be had as in civil suits               for damages at common law.          33 U.S.C.   918(a).                                          8                    proceeding, and that upon filing of appropri-                    ate 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.    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                                        ____________________               6Analogous Rule 81(a)(5), governing the applicability of the          Civil Rules to NLRB proceedings, likewise illuminates the present          inquiry.  See Fed. R. Civ.  P. 81(a)(5) ("in respects not covered                    ___                                          9          employer  is required  prior  to the  commencement  of a  section          921(d) enforcement action in the district court.  See supra p. 4.                                                            ___ _____                    In addition,  we detect  no intimation,  either in  the          statutory  language  or legislative  history, that  Congress con-          templated a section 921(d)  proceeding quite so summary as  indi-          cated 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 allega-          tions upon which  the section 921(d) enforcement  petition neces-          sarily  depends,7 including the  main issue whether  the employer                                                      _______  ___ ________                                        ____________________          by [29  U.S.C.    159, 160]  the practice in the  district courts          shall conform to these rules as far as applicable").  In contrast          to LHWCA   921(d), however, the NLRB sections referenced in  Rule          81(a)(5) contain  detailed provisions relating to the filing of a          petition to enforce an NLRB order.  See 29 U.S.C.   160(e) ("Upon                                              ___          filing of such  a petition, the court shall  cause notice thereof                                          _____          to be served upon such person, and thereupon shall have jurisdic-                                             _________ _____ ____ _________          tion  of the proceeding  and of the  question determined therein,          ____  __ ___ __________          and shall have power to  grant such temporary relief or restrain-          ing order as it deems just and proper . . . .") (emphasis added).               7Although  clearly treated by  the parties and  the district          court as a    921(d) action, Williams's petition  for enforcement          is an odd hybrid.  Initially, Williams presented his petition for          enforcement to  the DOL.  In a  June 30, 1992 letter to Williams,          the District Director of the DOL determined that the compensation          order was "final,"  that it was made and  administratively served          "in  accordance with  law,"  and  that Jones  was  in default  on          payments.   Under   921(d),  these administrative  determinations          were  supererogatory.   Unlike   918(a),    921(d)  expressly re-          serves such matters for resolution by the district court.  See 33                                                                     ___          U.S.C.   921(d) ("If the court determines that the order was made                            __ ___ _____ __________          and served  in accordance  with law  . . . .") (emphasis  added).              ______          Although the district  court correctly noted  that Jones did  not          contest these matters (e.g., the  giving of notice as required in                                 ____          the administrative proceedings under   919), the applicability of              ______________          the  Rule 4 service of process requirement is not made to depend,          see Fed. R. Civ. P. 81(a)(6), upon whether the defendant-employer          ___          received  notice in  the administrative  proceeding, but  whether          ________                                          10          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 other-          wise 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                                        ____________________          "matters of procedure are provided for in" the LHWCA, id. (empha-                                    ________ ___ __             ___          sis added).  Since there  is no LHWCA provision governing service          of process  upon the  defendant employer  in a    921(d) judicial          enforcement proceeding, the district  court erred in  determining          that service of  process in accordance with Fed. R. Civ. P. 4 and          81(a)(6) was not necessary.                Moreover, although  the DOL  letter of  June 1992  contained          findings  analogous to those  required under LHWCA    918(a), see                                                                        ___          supra  note 5,  it could  not qualify  as a    918 "supplementary          _____          order," since (1) there is  no record evidence that Jones contem-          poraneously received the letter, or any notice of it, (2) the DOL          did not conduct a   919 hearing prior to  issuance of the letter,          (3)  the copy  of the DOL  letter filed  with the  district court          enforcement  petition was  not  "certified," and  (4)  Williams's          district  court  petition  specifically  invokes  subject  matter          jurisdiction under section 921(d) only.               8Williams conceded  that Jones  was making  payments at  the          time of the district court  order, but insisted that the enforce-          ment petition sought to compel payment of the "arrearages" dating                                                         __________          from October 1978.  The  magistrate judge concluded that   921(d)          differed from   918(a),  in that  it permits  the enforcement  of          prospective compensation orders only, compelling future  payments          to  be made  as they  come  due but  not recoveries  of  past due          payments.   Williams,  slip  op.  at 3  (citing  Henry v.  Gentry                      ________                             _____     ______          Plumbing &  Heating Co.,  704 F.2d 863  (5th Cir. 1983)).   Since          _______________________          Williams has not cross-appealed, we do not address this question.                                          11          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  employee's  petition  for  enforcement          involved controverted  factual matters.   But of  course such  an          approach could  afford adequate  safeguards only  if the  factual          conflicts were apparent  on the face  of the employee's  petition                                   __ ___ ____  __ ___ __________  ________          for enforcement.  Otherwise, there could be no assurance that the          respondent-employer would have  either notice  or opportunity  to          assert a challenge.  Thus, to construe Rule 81(a)(6) as excepting          section  921(d) enforcement actions  from the service  of process          requirements  of Rule  4,  merely because  the  employer did  not          interpose opposition  to the  enforcement petition, could  expose          employers to ex parte enforcement orders.                       __ _____                    Finally, Williams  suggests that  requiring service  of          process  in a section 921(d) enforcement proceeding could subvert          the  LHWCA goal of  ensuring prompt compliance  with compensation          orders.  Granting the premise of Williams's LHWCA policy argument          in  principle, whatever  slight  delay  might  be  occasioned  by          requiring proper service of process  in order to enable the court          to  obtain in personam  jurisdiction over employers  hardly seems                                          12          inappropriate,  especially  in  light of  the  simplicity  of the          procedure.9                    Sections  918(a) and 921(d) serve distinct roles in the          LHWCA remedial scheme.  Section 918(a) designedly affords injured          employees a  convenient, inexpensive,  and expeditious  mechanism          for facilitating enforcement  of "effective" compensation  awards          even before they  have become "final".  Congress  anticipated the                                         _____          severe  financial hardships that could beset injured employees as          a result of lengthy appeals.  It therefore settled on the section          918(a)  enforcement action  as a  simple means  to compel  prompt          employer  compliance with  an enforcement  award  even though  it          might later  be set aside on review.  See, e.g., Tidelands Marine                                                ___  ____  ________________          Serv. v. Patterson,  719 F.2d 126, 129 (5th  Cir. 1983) (  918(a)          _____    _________          implements "a theme central  to the spirit, intent, and  purposes          of the LHWCA");  Henry, 704 F.2d at  865.10  For some  reason not                           _____          disclosed  in the appellate  record, however, Williams  failed to                                        ____________________               9Other  types of minor procedural delays have not foreclosed          agency recognition of the applicability of the Civil Rules to the          LHWCA  by virtue of  the gap-filling mandate  in Fed.  R. Civ. P.          81(a)(6).  For  instance, Civil  Rule 6(e),  which permits  addi-          tional time  (3 days) for  compliance after service by  mail, has          been  held applicable  in LHWCA  enforcement  proceedings.   See,                                                                       ___          e.g., Johnson v. Diamond  M Co., 14 Ben. Rev. Bd.  Serv. 694, 696          ____  _______    ______________          (1982) ("There is no provision  in the Act excepting the applica-                                                     _________          tion  of [Civil] Rule  6(e) . . . .") (emphasis  added); see also                                                                   ___ ____          Great Am. Indem.  Co. v Belair, 160  F. Supp. 784, 785  (D. Conn.          _____________________   ______          1957) (same).               10Under the LHWCA, employers may recoup overpayments only as          credits against  compensation payments  due the  employee in  the          _______          future.   See 33  U.S.C.    908(j), 914(j),  922; see  also Ceres                    ___                                     ___  ____ _____          Gulf, 957 F.2d at 1201.  Thus, if a compensation order is vacated          ____          in its  entirety, payments  previously made  are essentially  un-          recoverable.  Id.                        ___                                          13          invoke  the  convenient,   prompt,  and  inexpensive  enforcement          mechanism established  under section  918(a) throughout  the ten-          year  period spanned  by Jones's  numerous appeals.    Cf., e.g.,                                                                 ___  ____          Cassell v. Taylor,  243 F.2d 259, 260 (D.C.  Cir. 1957) (one-year          _______    ______          statute of limitations under   918(a) bars recovery on supplemen-          tal order filed sixteen years after default on compensation award          payments); supra note 5.   Moreover, Williams chose not to cross-                     _____          appeal from the district court's ruling that section 921(d) could          not be used to recover past-due payments.  See supra note 8.  The                                 ________            ___ _____          avoidable  and unexplained delay in Williams's efforts to recover          these  past-due  compensation payments  from  Jones,  however ill          advised or unfortunate,  does not permit disregard of the service          of process requirements applicable to section 921(d)  enforcement          proceedings,  particularly since  compliance will entail  no sig-          nificant further delay.11  But cf. infra pt. II.B.                                     ___ ___ _____                    Furthermore,  proper service  of  process  is no  empty          procedural exercise where an employee  seeks to obtain a district          court enforcement order  under section 921(d)  which may lead  to          contempt proceedings against the employer for noncompliance.  See                                                                        ___          Omni Capital Int'l,  Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 103          _________________________    __________________          (1987) ("Before a court may exercise personal jurisdiction over a          defendant,  the procedural requirement of service of summons must                                                                       ____                                        ____________________               11LHWCA   914(f) already provides a substantial disincentive          to frivolous employer challenges  to compensation awards designed          to postpone payments to an  injured employee.  Before a compensa-          tion order enters, payments more than 14 days overdue trigger 10%          interest  assessments.   See  33  U.S.C.   914(e).    Defaults in                                   ___          payments  following entry  of a  compensation  order trigger  20%          interest assessments.  See id.   914(f).                                 ___ ___                                          14          be satisfied.   '[S]ervice of summons is the procedure by which a          __ _________          court having venue and jurisdiction  of the subject matter of the          suit asserts jurisdiction over the person of the party served.'")          (citing Mississippi  Publishing Co.  v. Murphree,  326 U.S.  438,                  ___________________________     ________          444-45  (1946)) (emphasis added);  Precision Etchings & Findings,                                             ______________________________          Inc. v. LGP Gem, Ltd., 953 F.2d  21, 23-24 (1st Cir. 1992) (hold-          ____    _____________          ing that actual  notice of lawsuit is no  substitute for substan-          tial compliance with FRCP 4(d)(1) [requiring service on person of          defendant,  on suitable resident  at defendant's dwelling,  or on          defendant's "agent"];  "a []  judgment entered  by a  court which          lacks jurisdiction over the person  of the defendant is void, and                                                                  ____          may be set aside at any time  pursuant to Fed. R. Civ. P.  60(b)-                           __ ___ ____          (4).    Personal  jurisdiction is  established  either  by proper          service of process or by the defendant's waiver of any  defect in          the service of process.") (emphasis added); Jardines Bacata, Ltd.                                                      _____________________          v. Diaz-Marquez, 878  F.2d 1555, 1559 (1st Cir.  1989) ("[I]n the             ____________          ordinary  course, the district court acquires jurisdiction over a          defendant  only by service of process . . . .") (emphasis added).                     ____ __ _______ __ _______          Accordingly,  as we  cannot  find that  Jones  waived service  of          process, see supra note 4,  we vacate the district court enforce-                   ___ _____          ment order, and remand for service of process pursuant to Fed. R.          Civ. P. 4.          II.  Equitable Defenses and the State-law Counterclaim.          II.  Equitable Defenses and the State-law Counterclaim.               _________________________________________________                    Jones asserted two affirmative defenses and a state-law          counterclaim based on allegations that Williams committed perjury          before the ALJ in March 1980,  and that, as a direct consequence,                                          15          the ALJ  found, incorrectly,  that "no  laborious work"  had been          performed by  Williams after October  1978.   At the  October 23,          1992 hearing before  the magistrate judge, Jones  proffered three          affidavits  from  individuals  who  had accompanied  Williams  on          numerous clamming and lobstering expeditions between October 1978          and March 1981.  These affidavits attest that Williams engaged in          the very types  of heavy labor and lifting  explicitly disclaimed          in his testimony before the ALJ in 1980.  Jones contends that the          identity of  the affiants could not have  been discovered earlier          in the exercise of reasonable diligence, since Jones only learned          of  their existence through a "chance  conversation" in August or          September of 1992.                    With  respect to  the  affirmative defenses,  Jones re-          quested alternative forms of equitable relief:  (1) denial of the          enforcement  order on  the  ground  that a  party  who obtains  a          compensation  award through fraud is not entitled to its enforce-          ment by injunction, or (2) a temporary stay of the section 921(d)          enforcement action pending  administrative relief  from the  DOL.          With respect  to the state-law  counterclaim, see Me.  Rev. Stat.                                                        ___          Ann. tit.  14,   870  (1992) (damages action for  perjury), Jones          requested compensatory and punitive damages.                    The district court  held that it had  no "jurisdiction"              hence no discretion  under LHWCA section 921(d)     to refuse          to  enforce  the compensation  order, except  on the  two grounds          enumerated in the LHWCA, neither of which was contested by Jones;          namely, that  Jones was not  in default or that  the compensation                                          16          order  was not  made and served  "in accordance with  law."12  On          related grounds, the  district court refused to  exercise pendent          jurisdiction  over Jones's  state-law counterclaim.   See  United                                                                ___  ______          Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).  The recommended          ____________    _____          decision did not address the request for  a temporary stay of the          section 921(d) enforcement proceedings.                    On appeal,  Jones  contends  that  the  district  court          viewed  its equitable powers  under section 921(d)  too narrowly.          See  Restatement (Second)  of Judgments    70,  cmt. a  (1982) (a          ___          court of equity  will not enforce a judgment  obtained by fraud).          Although the  district court  may have painted  with too  broad a          brush, see,  e.g., infra  notes  14 and  18,  we think  its  core                 ___   ____  _____          conclusions were nonetheless sound.                                        ____________________               12The magistrate  judge  principally relied  on Thompson  v.                                                               ________          Potashnick Constr.  Co., 812 F.2d  574 (9th Cir. 1987),  and Mar-          _______________________                                      ____          shall v. Barnes &  Tucker Co., 432 F. Supp. 935  (W.D. Pa. 1977).          _____    ____________________          In Thompson,  the Ninth  Circuit broadly  stated that  a district             ________          court's role in a   921(d) proceeding is limited to screening for          procedural defects in the DOL proceedings and that "the  district          court  has no  jurisdiction over  the merits of  the litigation."                                                ______          Thompson, 812 F.2d  at 576 (emphasis added).   The Thompson court          ________                                           ________          was not asked  to consider the sufficiency of  service of process          in the district court proceeding.               In support  of its  position, the Ninth  Circuit cited  Mar-                                                                       ____          shall, which looked  to recent legislative history  for guidance.          _____          Prior to 1972, the district court had served both as an appellate          court, reviewing the ALJ's compensation orders, and  as the forum                                                          ___          in which the employee could seek enforcement of a final compensa-          tion order.  In 1972, Congress established the BRB, which assumed          the  appellate role previously  performed by the  district court.          See H.R. Rep.  1441, 92d Cong., 2d Sess. 12  (1972), reprinted in          ___                                                  _________ __          1972  U.S.C.C.A.N. 4709.    The  Marshall  court  concluded  that                                           ________          Congress intended, by  its LHWCA amendments in 1972,  to withdraw          district court jurisdiction to consider any issue relating to the          underlying merits of compensation orders.  Marshall, 432 F. Supp.                     ______                          ________          at 937.                                          17               A.   Equitable Power to Refuse Injunctive Enforcement.               A.   Equitable Power to Refuse Injunctive Enforcement.                    ________________________________________________                    An  enforcement order  under LHWCA  section 921(d)  may          take the  form of a  writ of injunction, a  traditional equitable          remedy  which  may  expose  the enjoined  party  to  the district          court's  coercive contempt powers.   Accordingly, fraud  and "un-          clean hands" historically  have been regarded as  valid equitable          defenses  to injunctive  relief, Loglan  Inst.,  Inc. v.  Logical                                           ____________________     _______          Language Group, Inc.,  962 F.2d 1038, 1042 (Fed.  Cir. 1992), and          ____________________          absent  a  controlling statute  a  federal court  is  presumed to          possess the broad discretion and equitable power to configure its          remedy to  suit the needs  of the case.   Even in  the context of          congressionally created  injunctive remedies,  the Supreme  Court          has said  that "[u]nless  a statute  in so  many words,  or by  a                                                                   __ __  _          necessary  and  inescapable  inference,  restricts  the   court's          _________  ___  ___________  _________          jurisdiction in equity, the full scope of that jurisdiction is to                                      ____ _____          be recognized  and applied."   Porter v. Warner Holding  Co., 328                                         ______    ___________________          U.S. 395, 398 (1946) (emphasis added).  See Weinberger v. Romero-                                                  ___ __________    _______          Barcelo, 456  U.S. 305, 313  (1982) ("[W]e do not  lightly assume          _______          that  Congress has intended  to depart from  established [equity]          principles.").13                                        ____________________               13See also  Hecht Co.  v. Bowles, 321  U.S. 321,  329 (1944)                 ___ ____  _________     ______          ("The essence  of equity jurisdiction  has been the power  of the          Chancellor to do equity and to mould each decree to the  necessi-          ties of  the particular case.   Flexibility rather  than rigidity          has distinguished it."); NLRB v. P*I*E Nationwide, Inc., 894 F.2d                                   ____    ______________________          887, 892 (7th Cir. 1990) (contrasting FTC orders, which are self-          executing,  with NLRB orders as to  which Congress has interposed          the  district court as an independent enforcement arbiter, recog-          nizing that  the "potential  severities of  contempt" counsel  "a          complementary power of equitable restraint and forbearance"); cf.                                                                        ___          Pyrodyne  Corp. v. Pyrotronics  Corp., 847  F.2d 1398,  1402 (9th          _______________    __________________                                          18                    Under  this rubric, the  first question we  confront is          whether the LHWCA deprives the district court of  its traditional          discretionary powers  to withhold  equitable relief  for the  en-          forcement  of a compensation award obtained through an employee's          fraud.14   Since section  921(d) contains  no explicit  delimita-                                        ____________________          Cir.) (noting  that owner of incontestable mark  under Lanham Act          "generally entitled  to  injunctive  relief,"  but  if  equitable          defenses are interposed, "the grant of injunctive relief is not a          ministerial act flowing  as a matter  of course"), cert.  denied,                                                             _____  ______          488 U.S. 968 (1988).               14Marshall, 432 F. Supp. 935, relied on below, as well as by                 ________          the Ninth  Circuit in  Thompson, see supra  note 12,  offers only                                 ________  ___ _____          limited guidance.  In Marshall,  the employer attempted to  liti-                                ________          gate  core factual  issues (e.g., LHWCA  coverage and  statute of                                      ____          limitations) for  the first time in a   921(d) proceeding, having                       ___  ___ _____ ____          failed to raise them before  the ALJ, or to appeal the  compensa-          tion order to the BRB.  Id. at 937.  The Marshall court correctly                                  ___              ________          relied on the  fact that, by its amendments to the LHWCA in 1972,          Congress  unequivocally divested the district court of all appel-          late functions relating to ALJ compensation orders.  But Marshall                                                                   ________          did  not  involve the  more  difficult  problems posed  by  newly          discovered evidence  of fraud.   Arguably,  at least,  successful          invocation of an equitable defense to enforcement would not  work                                             __ ___________          an  appellate affirmance, modification, or vacation of the under-              _________          lying  compensation order,  but merely  a refusal  to deploy  the          equitable powers of  the court in aid of  a judgment fraudulently          obtained.   Thus, Marshall's admonition that the district court's                            ________          function  is reduced to "screening compensation orders for proce-          dural  defects"  does not  purport  to preclude  exercise  of the          court's traditional  discretionary  power to  grant  or  withhold          equitable relief.  See infra note 18.                             ___ _____                                          19          tion of  the district  court's equitable  powers,15 we  must look          to the LHWCA's remedial framework as a whole.                    The LHWCA affords Jones an adequate remedy for redress-          ing any  fraud  alleged in  the affirmative  defense.   Eschewing          conventional  res  judicata  principles,  section  922 allows  an                        ___  ________          employer to  request the ALJ  to reconsider the case  where there          has been a "change of conditions" or "mistake of fact" warranting          modification  or suspension  in compensation  payments.   See  33                                                                    ___          U.S.C.   922; see also 20 C.F.R.   702.373; Hudson v.  Southwest-                        ___ ____                      ______     __________          ern Barge  Fleet Servs., Inc.,  16 Ben.  Rev. Bd. Serv.  367, 369          _____________________________          (1984) (holding that   922  was "intended by Congress to displace          traditional  notions of res  judicata") (citing Banks  v. Chicago                                  ___  ________           _____     _______          Grain  Trimmers Ass'n, 390  U.S. 459 (1968)).16   "[F]acts relat-          _____________________          ing to the nature and extent of a claimant's disability typically                                        ____________________               15The magistrate  judge's reliance  on the  "imperative lan-          guage" of   921(d) could not fully resolve the issue.   See supra                                                                  ___ _____          pp. 7-8.   Section 921(d)'s  language    "shall enforce"     does          not call for a blanket  preemption of the district court's tradi-          tional  equitable powers.   See,  e.g.,  Hecht, 321  U.S. at  329                                      ___   ____   _____          (holding that the phrase  "'shall be granted' [in the  injunctive          enforcement provision of the Emergency Price Control Act of 1942]          is less mandatory  than a literal  reading might suggest";  "[w]e          cannot but  think that if  Congress had intended  to make such  a          drastic  departure from  the traditions  of  equity practice,  an          unequivocal statement of its purpose would have been made").               16Section 922 may be invoked before or  after a compensation          award is entered.   See, e.g., Craig v.  United Church of Christ,                              ___  ____  _____     _______________________          13  Ben. Rev.  Bd. Serv. 567,  568-69 (1981).   Although   922 is          subject to a  one-year limitations period, a  defaulting employer          may restart  the tolling period  at any  time by making  a single          compensation  payment.  See  33 U.S.C.   922  (modification award                                  ___          can  be filed "at any time  prior to one year  after date of last          payment of compensation").  Thus, recourse to   922  would appear          to afford more  flexibility for setting aside  a fraudulent award          than is provided under Fed. R. Civ. P. 60(b)(3).                                          20          are  the subject  of  modification  proceedings."    Williams  v.                                                               ________          Geosource, Inc.,  13 Ben. Rev. Bd.  Serv. 643, 645 (1981).   "The          _______________          factfinder  [ALJ] has  broad discretion  to  correct mistakes  of          fact,  whether they be  demonstrated by new  evidence, cumulative                                                  ___  ________          evidence,  or  further  reflection  upon  the evidence  initially          submitted."  Id. (emphasis added).  The overarching criterion for                       ___          reopening a compensation award under the LHWCA is whether reexam-          ination  would  serve  the "interests  of  justice."  O'Keeffe v.                                                                ________          Aerojet-General  Shipyards, Inc.,  404 U.S.  254, 255-56  (1971).          ________________________________          Perjured  testimony resulting  in an  erroneous  finding of  fact          concerning the nature or extent of an employee's disability would          seem to come squarely within the realm of a "mistake of fact."                    On  October 14,  1992,   days  before  the  recommended          decision issued in this case,  Jones filed a petition for modifi-          cation pursuant to  LHWCA section 922.17   In these  circumstanc-          es, and against this legislative framework, we think there are at          least two sound reasons for  not inferring a congressional inten-          tion  to dedicate  two forums  to the  task of  assessing alleged          "mistakes of fact" relating to an employee's testimony before the          ALJ.  First, where newly discovered evidence of  fraud implicates          the evidentiary basis  for an employee's compensation  claim, the                                        ____________________               17Section 922 is  not the only antidote for  fraud under the          LHWCA,  which  likewise  authorizes  the  imposition  of criminal          penalties  (fine  and  imprisonment) against  "[a]ny  person  who          willfully  makes any false or misleading statement or representa-          tion for  the purpose of  obtaining any benefit or  payment under          this Act."  33  U.S.C.   931.  In addition, costs  may be awarded          to the opposing party in  proceedings brought on claims or orders          "without reasonable ground."  Id.   926.                                        ___                                          21          LHWCA discloses a decided preference  for utilizing the DOL's in-          house expertise in resolving the  dispute.  See, e.g., Crowell v.                                                      ___  ____  _______          Benson, 285  U.S. 22,  46 (1932) (the  LHWCA provides  "a prompt,          ______          continuous,  expert and  inexpensive method  for  dealing with  a          class of questions of fact  which are peculiarly suited to exami-                                                __________ ______          nation and  determination by an  administrative agency  specially          assigned to that task") (emphasis added); cf. Youghiogheny & Ohio                                                    ___ ___________________          Coal  Co. v. Vahalik,  970 F.2d  161, 162  (6th Cir.  1992) ("the          _________    _______          benefits of agency  expertise become irrelevant" under  the LHWCA          only after "claim determination" is complete).18          ____ _____                    Under  either  section 921(d)  or  922,  the factfinder          would  be required  to  decide:   (1)  whether  Jones could  have          discovered  the putative fraud  earlier, in  the exercise  of due          diligence; (2) whether the affidavits proffered by Jones, togeth-          er with the  record evidence in the case before the DOL, credibly          suggest that Williams misrepresented  his physical capacities and          activities  during the  relevant  period;  and  (3)  whether  the          putative perjury was sufficiently material to undermine the ALJ's          finding  of temporary  total disability.    See General  Dynamics                                                      ___ _________________          Corp.  v. Director, Office of Workers' Compensation Programs, 673          _____     __________________________________________________          F.2d 23, 25 (1st Cir. 1982) (in reopening case, ALJ "must balance          the  need to  render justice  against  the need  for finality  in                                        ____________________               18On the  other hand, while  we have  no occasion to  take a          position in  this case,  some equitable  defenses (e.g.,  laches,                                                             ____          estoppel),  to the extent premised on employee conduct postdating                                                                 __________          the  compensation order,  might  require  resolution  of  factual          issues not peculiarly suited to agency expertise.  Cf. supra note                                                             ___ _____          14.                                          22          decisionmaking,"  and justice is not necessarily served where the          employer "could have presented his side  of the case at the first          hearing . . . .");  see also  McCord v. Cephas,  4 Ben.  Rev. Bd.                              ___ ____  ______    ______          Serv. 224, 225 (1976) (employer  not entitled to modification  if          it exhibits a bad faith  effort to relitigate issues ad nauseam).                                                               __ _______          We think the  DOL is better positioned to  address such issues in          these circumstances.                    Second, section 922 modification rulings are appealable          to the BRB and to the court  of appeals.  See 33 U.S.C.   921(b),                                                    ___          (c); O'Loughlin  v. Parker, 163  F.2d 1011, 1013 (4th  Cir. 1947)               __________     ______          (ALJ's decision to reopen under section 922 is reviewed for abuse          of  discretion).   Similarly,  an  employer would  be  allowed an          appeal  from a  district  court  decision  which  discounted  the          employer's equitable  defenses  and  directed  enforcement  of  a          compensation award.   To  allow the section  922 and  the section          921(d)  proceedings  to  go forward simultaneously  would open up          the possibility of inconsistent rulings on the fraud claim, which          ultimately  would have to be resolved by  the court of appeals in          either event.                    As we can  discern no good purpose for  such a needless          duplication  of administrative  and judicial effort,  we conclude          that LHWCA section 921(d), viewed in broad context, gives rise to          the "inescapable  inference," see Porter,  328 U.S. at  398, that                                        ___ ______          Congress did not intend the  type of fraud defense here presented          by Jones to be adjudicated by the district court but by the DOL.                                          23               B.   Stay of Enforcement.               B.   Stay of Enforcement.                    ___________________                    The remaining question  is somewhat narrower:   may the          district  court in a section 921(d) proceeding temporarily enjoin          enforcement  of  a   compensation  order  pending  administrative          resolution  of  an  employer's  petition  for modification  under          section 922?19  Jones contends that he will be harmed irreparably          absent  a  stay  of the  section  921(d)  enforcement proceeding,          because the compensation  payments he is compelled  to make prior          to any  section 922 modification order would  not be recoverable.          See supra note 10.          ___ _____                    Only  two  LHWCA provisions  explicitly allow  stays of          "effective" compensation orders.   See 33 U.S.C.     921(b) (stay                                             ___          pending appeal to  BRB), 921(c) (stay pending appeal  from BRB to          court  of appeals),  thus underscoring  the  strong LHWCA  policy          favoring prompt  compensation payments even though the employee's          entitlement to  disability benefits  remains in  genuine dispute.          Stays pending  administrative and  judicial review  are available          only  on a showing of "irreparable injury."   See Henry, 704 F.2d                                                        ___ _____          at  865.  It  is not  enough that  the employer  demonstrate that          interim  payments would be unrecoverable absent  a stay, nor that          the employer  is  experiencing  financial  difficulty  in  making          payments.   Edwards v. Director, Office of Workers' Compensation,                      _______    _________________________________________                                        ____________________               19We address this issue in  the interests of judicial econo-          my.   It is possible,  even likely,  that Jones's    922 petition          will have been acted upon by the DOL before Jones has been served          with process  pursuant to  Civil Rule 4  following remand  to the          district court.  If  not, it seems quite likely  that Jones would          renew his request for a stay of the   921(d) enforcement proceed-          ing.                                          24          932 F.2d 1325, 1329 (9th Cir. 1991). "Irreparable injury" will be          found only in extraordinary circumstances.  Id.                        _____________                 ___                    Unlike  the  minimal  time delays  required  to  effect          proper service  of process,  see supra pt.  I, a stay  of section                                       ___ _____          921(d)  enforcement  proceedings  while  an  employer  pursues  a          modification ruling from the DOL (and, perhaps, pending appellate          review)  threatens  a  lengthy delay  in  the  previously ordered          compensation  payments to  the employee.    Therefore, under  the          "inescapable inference" standard established  in Porter, 328 U.S.                                                           ______          at  398, we  must conclude  that the  LHWCA divests  the district          court of  the equitable power  to defer  its entry  of a  section          921(d) enforcement  order pending  the outcome  of a section  922          modification  proceeding unless  the  employer first  establishes          "irreparable injury."   As we have noted, Jones's  answer did not          allege facts sufficient to establish irreparable injury, nor does          the record suggest a basis for such a showing.  Thus,  the magis-          trate judge did not  err in failing to  act on the request  for a          temporary stay.          III. Conclusion.          III. Conclusion.               __________                    The district  court order directing enforcement  of the          compensation  order  pursuant  to LHWCA  section  921(d)  must be          vacated due  to lack  of compliance with  the service  of process          requirements imposed by Fed. R. Civ. P. 4 and 81(a)(6).  The case          must be remanded to permit  Williams to effect service of process          upon  Jones.   At such  time as service  of process  is effected,          Jones should be permitted to submit for  district court consider-                                          25          ation any  order obtained in  the LHWCA section  922 modification          proceeding,  failing which the  district court may  reinstate the          section 921(d) enforcement order previously entered.                    The  enforcement order  is  vacated  and  the  case  is                    The  enforcement order  is  vacated  and  the  case  is                    _______________________________________________________          remanded to permit service of process and for further proceedings          remanded to permit service of process and for further proceedings          _________________________________________________________________          in  accordance herewith.   Costs are awarded  to defendant-appel-          in  accordance herewith.   Costs are awarded  to defendant-appel-          _______________________    ______________________________________          lant.          lant.          _____                                          26
