Horizon Shipbuilding, Inc. v. Albert Jackson

Opinion

USCA11 Case: 24-12858 Document: 30-1 Date Filed: 07/31/2025 Page: 1 of 13

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 24-12858 Non-Argument Calendar ____________________

HORIZON SHIPBUILDING, INC., AMERICAN LONGSHORE MUTUAL ASSOCIATION, LTD., Plaintiffs-Appellees, versus ALBERT JACKSON,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Florida USCA11 Case: 24-12858 Document: 30-1 Date Filed: 07/31/2025 Page: 2 of 13

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D.C. Docket No. 3:23-cv-24755-MCR-HTC ____________________

Before LUCK, KIDD, and MARCUS, Circuit Judges. PER CURIAM: Albert Jackson, proceeding pro se, appeals the district court’s order dismissing his workers’ compensation claims brought under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) and striking his notice of constitutional challenge. He argues that: (1) the district court abused its discretion by dismissing his claims after it determined that he repeatedly engaged in will- fully disobedient conduct by refusing to comply with the orders the Administrative Law Judge (“ALJ”) issued during the administrative proceedings concerning his workers’ compensation claims; and (2) the district court erred by striking his notice of constitutional chal- lenge to a regulation prohibiting the recording of administrative proceedings when it should have certified the question to the At- torney General. After thorough review, we affirm. I. We review a district court’s determination of civil contempt for abuse of discretion. Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002). We also review a district court’s dismissal of an action under Federal Rule of Civil Procedure 41 for a party’s failure to comply with a court order for abuse of discretion. Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374 (11th Cir. 1999). How- ever, we review a district court’s legal conclusions de novo. Farese USCA11 Case: 24-12858 Document: 30-1 Date Filed: 07/31/2025 Page: 3 of 13

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v. Scherer, 342 F.3d 1223, 1228 (11th Cir. 2003). Likewise, we review a district court’s interpretation of the Federal Rules of Civil Proce- dure de novo. Vencor Hosps., Inc. v. Standard Life & Acc. Ins. Co., 279 F.3d 1306, 1308 (11th Cir. 2002). We construe briefs filed by pro se litigants liberally. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). That said, we’ve “repeatedly held” that we will not consider “an issue not raised in the district court and raised for the first time in an appeal.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (citation modified). Similarly, with limited exceptions, if a party fails to object to a magistrate judge’s findings or recommendations in a report and recommendation (“R&R”), the party “waives the right to challenge on appeal the district court’s order based on un- objected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object.” 11th Cir. R. 3-1. Finally, issues that pro se litigants do not brief on appeal are deemed abandoned. Timson, 518 F.3d at 874. A claim is abandoned when an appellant “either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). II. First, we are unpersuaded by Jackson’s argument that the district court abused its discretion by dismissing his LHWCA claims. The LHWCA “establishes a comprehensive federal USCA11 Case: 24-12858 Document: 30-1 Date Filed: 07/31/2025 Page: 4 of 13

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workers’ compensation program that provides longshoremen and their families with medical, disability, and survivor benefits for work-related injuries and death.” Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 96 (1994). The LHWCA creates a presumption of compensability that an employer must rebut with substantial ev- idence. See Brown v. Jacksonville Shipyards Inc., 893 F.2d 294, 297 (11th Cir. 1990); 33 U.S.C. § 920(a). ALJs from the United States Department of Labor conduct administrative proceedings to eval- uate claims for compensation made under the LHWCA. See 33 U.S.C. § 919; 20 C.F.R. §§ 701.101, 701.201, 702.301–702.394. ALJs have the authority to enforce orders, compel witness attendance and testimony, examine witnesses, and compel “the production of books, papers, documents, and other evidence, or the taking of depositions.” 33 U.S.C. § 927(a). They are also permitted to “do all things conformable to law” that are necessary to effectively dis- charge their duties. Id.; see also 29 C.F.R. § 18.12(b). The LHWCA provides that, when a party asserting a work- ers’ compensation claim “unreasonably refuses to submit . . . . to an examination by a physician selected by the employer,” the ALJ may suspend the payment of compensation. 33 U.S.C. § 907(d). Additionally, the Office of Administrative Law Judges’ (“OALJ”) procedures provide that a party “may serve upon another party whose mental or physical condition is in controversy a notice to attend and submit to an examination by a suitably licensed or cer- tified examiner.” 29 C.F.R. § 18.62(a). If the party subject to the examination objects, “the requesting party may file a motion to compel” the examination. Id. § 18.62(b). Other regulations specify USCA11 Case: 24-12858 Document: 30-1 Date Filed: 07/31/2025 Page: 5 of 13

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that, where a special examination by an impartial specialist or an evaluation to contest disputed medical results is ordered, the claim- ant must “submit to such examination at such place as is designated in the order to report, but the place so selected shall be reasonably convenient for the employee.” 20 C.F.R. §§ 702.408–702.410. The LHWCA authorizes district courts to impose sanctions on parties who disobey or resist lawful orders issued by ALJs during administrative proceedings, providing that: If any person in proceedings before a deputy commis- sioner or Board disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered to do so, any pertinent book, paper, or document, or refuses to ap- pear after having been subpoenaed, or upon appear- ing refuses to take the oath as a witness, or after hav- ing taken the oath refuses to be examined according to law, the deputy commissioner or Board shall cer- tify the facts to the district court having jurisdiction in the place in which he is sitting (or to the United States District Court for the District of Columbia if he is sit- ting in such District) which shall thereupon in a sum- mary manner hear the evidence as to the acts com- plained of, and if the evidence so warrants, punish such person in the same manner and to the same ex- tent as for a contempt committed before the court, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with USCA11 Case: 24-12858 Document: 30-1 Date Filed: 07/31/2025 Page: 6 of 13

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reference to the process of or in the presence of the court. 33 U.S.C. § 927(b). Notably, the statute specifies that a district court may “pun- ish” a party who disobeys a lawful order during administrative pro- ceedings “in the same manner and to the same extent as for a con- tempt committed before the court.” Id. Under the established civil contempt standards, a district court must support a finding of civil contempt with clear and convincing evidence. Riccard, 307 F.3d at 1296. “The clear and convincing evidence must establish that: (1) the allegedly violated order was valid and lawful; (2) the order was clear and unambiguous; and (3) the alleged violator had the ability to comply with the order.” Id. District courts have “broad discretion in fashioning civil con- tempt sanctions.” Howard Johnson Co. v. Khimani, 892 F.2d 1512, 1519 (11th Cir. 1990). So, for example, a district court may dismiss an action when a party fails to comply with a court order. See Grat- ton, 178 F.3d at 1374 (citing Fed. R. Civ. P. 41(b)). District courts also have “broad discretion to control discovery,” including the “ability to impose sanctions on uncooperative litigants.” Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993); see also Fed. R. Civ. P. 37(b) (providing that district courts may impose sanctions when a party fails to comply with a discovery order). However, dismissal is a severe sanction that may only be im- posed when “(1) a party engages in a clear pattern of delay or willful contempt (contumacious conduct); and (2) the district court USCA11 Case: 24-12858 Document: 30-1 Date Filed: 07/31/2025 Page: 7 of 13

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specifically finds that lesser sanctions would not suffice.” World Thrust Films, Inc. v. Int’l Fam. Ent., Inc., 41 F.3d 1454, 1456 (11th Cir. 1995). Although it is “an extraordinary remedy, dismissal upon dis- regard of an order, especially where the litigant has been fore- warned, generally is not an abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Here, the district court did not abuse its discretion in deter- mining that Jackson was in contempt of court or in dismissing his workers’ compensation claims. See Riccard, 307 F.3d at 1296; Grat- ton, 178 F.3d at 1374. The dispute in the case stems from workers’ compensation claims Jackson brought under the LHWCA against Horizon Shipbuilding, Inc. and American Longshore Mutual Asso- ciation, Ltd. (collectively, “Horizon”). During the administrative proceedings related to Jackson’s workers’ compensation claims, the ALJ compelled Jackson to, among other things, undergo a med- ical examination by a physician selected by Horizon and execute various authorizations after he refused to do so upon Horizon’s re- quest. Thereafter, Horizon moved to dismiss Jackson’s claims with prejudice, arguing that his refusal to participate in discovery and comply with the ALJ’s orders had prevented Horizon from investi- gating his claims. The ALJ agreed, issuing an order that certified certain facts to the district court and recommended that the district court dismiss Jackson’s claims with prejudice. In finding that Jackson was in contempt of court, the district court first determined that the ALJ’s orders -- compelling Jackson to undergo a medical examination by a physician selected by USCA11 Case: 24-12858 Document: 30-1 Date Filed: 07/31/2025 Page: 8 of 13

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Horizon and to execute various authorizations -- were lawful. In- deed, the statutes and regulations make clear that the ALJ had dis- cretion in conducting the administrative proceedings and was broadly authorized to compel Jackson to attend a medical exami- nation and execute the necessary authorizations to effectively carry out her duties. See 33 U.S.C. §§ 907(d), 927(a); 29 C.F.R. §§ 18.12(b), 18.62. While Jackson argues that it was unreasonable for the ALJ to require him to travel “80 miles” for an examination using the car he shared with his wife, he cites to no authority specifying a maxi- mum distance a claimant may be required to travel or suggesting that the ALJ’s order was otherwise unreasonable. Thus, the district court did not abuse its discretion in determining that the ALJ’s or- ders were lawful. See Riccard, 307 F.3d at 1296. Furthermore, the ALJ’s orders were clear and unambiguous. The orders specified that Jackson was required to return the exe- cuted authorizations by a certain date and to attend the scheduled medical examination, noting the date, the physician’s name, and the location. Jackson did not demonstrate that he was unable to comply with the orders. While he claimed that the distance he would be required to travel for the examination was unreasonable, he did not allege that he had no way of transporting himself to it, and Horizon confirmed that it would reimburse him for the travel costs. As for the authorizations, Jackson argued that they were overly broad, not that he was unable to execute and return them. To the extent Jackson argues that the ALJ’s purported failure to rule on his motions for protective orders prevented him from USCA11 Case: 24-12858 Document: 30-1 Date Filed: 07/31/2025 Page: 9 of 13

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complying with the discovery orders, the record belies this claim. The ALJ addressed Jackson’s requests for protective orders in her rulings on the parties’ motions to compel, for reconsideration, and to quash subpoenas. And as for Jackson’s reference to outstanding motions for protective orders in his September 21, 2023 response - - which may have been improperly filed in any event -- the ALJ spe- cifically addressed it in her certification of facts to the district court. Thus, there is no basis to conclude that the district court abused its discretion in determining that Jackson was in civil contempt for vi- olating the ALJ’s lawful and clear orders, which he had the ability to comply with. Id. Nor did the district court abuse its discretion in dismissing Jackson’s claims based on his failure to comply with the ALJ’s or- ders. 33 U.S.C. § 927(b); Gratton, 178 F.3d at 1374. As the record shows, Jackson engaged in a “clear pattern” of “willful contempt” by repeatedly disobeying the ALJ’s orders compelling him to exe- cute the authorizations and attend the medical examination. World Thrust Films, 41 F.3d at 1456. Jackson continued to disobey the ALJ’s orders by failing to attend a discovery conference held on Au- gust 29, 2023. Jackson also demonstrated a pattern of disobedience in district court, failing to comply with the magistrate judge’s in- structions to appear for a hearing on Horizon’s motion to dismiss. Moreover, before dismissing Jackson’s claims, the district court considered less severe sanctions and concluded that they would not be effective. Id. In particular, it found no indication that Jackson would execute the authorizations or attend the medical USCA11 Case: 24-12858 Document: 30-1 Date Filed: 07/31/2025 Page: 10 of 13

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examination in the future, and his ongoing refusal to do so had in- terfered with Horizon’s ability to effectively dispute his claims. And Jackson had been put on notice of the possible consequences - - the ALJ advised him multiple times that his failure to comply with her orders could result in sanctions, including the dismissal of his claims. Moon, 863 F.2d at 837. On this record, the court did not abuse its discretion in grant- ing Horizon’s motion to dismiss after finding that Jackson repeat- edly engaged in willfully disobedient conduct and that other sanc- tions would not suffice. 1 See World Thrust Films, 41 F.3d at 1456; Gratton, 178 F.3d at 1374. Accordingly, we affirm as to this issue. III. We also find no merit to Jackson’s claim that the district court erred by striking his notice of constitutional challenge to a regulation prohibiting the recording of administrative proceedings. Specifically, while the OALJ’s procedures generally make hearings before an ALJ open to the public, the regulations prohibit

1 Jackson newly claims on appeal that the issues raised in Horizon’s motion to

dismiss were barred by res judicata or collateral estoppel -- defenses that, gen- erally speaking, bar the re-litigation of issues that were previously raised or could have been raised. However, Jackson did not discuss res judicata or col- lateral estoppel at any point in district court, thereby forfeiting his arguments that the district court erred by adjudicating previously litigated claims. N. Ga. Elec. Membership Corp. v. City of Calhoun, Ga., 989 F.2d 429, 432 (11th Cir. 1993); see also Access Now, Inc., 385 F.3d at 1331; 11th Cir. R. 3-1. USCA11 Case: 24-12858 Document: 30-1 Date Filed: 07/31/2025 Page: 11 of 13

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“[p]arties, witnesses and spectators . . . from using video or audio recording devices to record hearings.” 29 C.F.R. §§ 18.81(a), 18.86. Federal Rule of Civil Procedure 5.1 sets forth these require- ments for filing a constitutional challenge to a federal or state stat- ute: (a) Notice by a Party. A party that files a pleading, written motion, or other paper drawing into ques- tion the constitutionality of a federal or state stat- ute must promptly: (1) file a notice of constitutional question stating the question and identifying the paper that raises it, if: (A) a federal statute is questioned and the par- ties do not include the United States, one of its agencies, or one of its officers or employ- ees in an official capacity; or (B) a state statute is questioned and the parties do not include the state, one of its agencies, or one of its officers or employees in an of- ficial capacity; and (2) serve the notice and paper on the Attorney General of the United States if a federal statute is questioned—or on the state attorney general if a state statute is questioned—either by certi- fied or registered mail or by sending it to an electronic address designated by the attorney general for this purpose. USCA11 Case: 24-12858 Document: 30-1 Date Filed: 07/31/2025 Page: 12 of 13

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(b) Certification by the Court. The court must, under 28 U.S.C. §2403, certify to the appropriate attor- ney general that a statute has been questioned. Fed. R. Civ. P. 5.1. Further, in any action where “the constitution- ality of any Act of Congress affecting the public interest is drawn in question,” a court is required to certify that fact to the Attorney General so the government may present evidence and argument on the question of constitutionality. 28 U.S.C. § 2403. Under the Federal Rules of Civil Procedure, a party is re- quired to plead all compulsory counterclaims, which are claims against an opposing party that “arise[] out of the transaction or oc- currence that is the subject matter of the opposing party’s claim” and “do[] not require adding another party over whom the court cannot acquire jurisdiction.” Fed. R. Civ. P. 13(a). As for permis- sive counterclaims, or claims that are “not compulsory,” a party may raise them against an opposing party in a pleading. Fed. R. Civ. P. 13(b). Here, the district court did not abuse its discretion in grant- ing Horizon’s motion to strike Jackson’s notice of a constitutional challenge. For starters, Rule 5.1 did not apply to Jackson’s chal- lenge -- he questioned the constitutionality of 29 C.F.R. § 18.86, which is a federal regulation, not a federal or state statute. See Fed. R. Civ. P. 5.1(a)(1)(A). But even if Rule 5.1 applied to federal regu- lations, the district court properly determined that Jackson’s failure to comply with the ALJ’s orders did not draw into question the constitutionality of 29 C.F.R. § 18.86. This is because the prohibi- tion on recording administrative proceedings did not affect USCA11 Case: 24-12858 Document: 30-1 Date Filed: 07/31/2025 Page: 13 of 13

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Jackson’s ability or refusal to attend the medical examination or ex- ecute the authorizations. As a result, the district court was not re- quired to certify his constitutional question to the Attorney Gen- eral and did not abuse its discretion by striking his notice of consti- tutional challenge. See Fed. R. Civ. P. 5.1(b); 28 U.S.C. § 2403. Moreover, to the extent Jackson sought to assert a counter- claim against Horizon related to the constitutionality of 29 C.F.R. § 18.86, he does not argue in his initial brief that the district court erred by dismissing any counterclaim he brought as to this issue. Thus, he has abandoned the issue on appeal. Timson, 518 F.3d at 874. In any event, any argument concerning this kind of counter- claim would fail because Jackson sought to challenge the constitu- tionality of a regulation enforced by the OALJ, but he never as- serted a claim concerning the regulation against Horizon, the op- posing party. Accordingly, we affirm as to this issue as well. AFFIRMED.