IN THE UNITED STATES
COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Claude O. Weaver,
Director, Office of Workers'
United States Department of
Ingalls Shipbuilding, Inc.,
Petition for Review of an Order of
the Benefits Review Board
February 26, 2002
Before Jolly, Smith, and Benavides,
JERRY E. SMITH, Circuit Judge:
Claude Weaver appeals a decision of the Benefits
Review Board ("BRB") affirming an award of attorney's fees by the district
director. We reverse and remand.
On February 4, 1992, Weaver filed a claim
for hearing loss under the Longshore and Harbor Workers' Compensation Act
("LHWCA") against his former employer, Ingalls Shipbuilding, Inc. ("Ingalls"),
which controverted the claim on February 11.(1)
On February 12, Ingalls received formal notice of the claim from the district
director. In September, Ingalls initiated voluntary payments on the claim
and offered to settle; Weaver rejected this offer, and the case proceeded
to a hearing before an administrative law judge, who found in favor of
Weaver but awarded him less than the settlement offer.
Weaver's attorney then submitted an application
for attorney's fees. The district director denied the application because
the recovery was less than the proffered settlement. The BRB reversed and
remanded, finding Weaver was entitled to fees incurred before Ingalls commenced
voluntary payments in September.
Before the director issued a revised fee award,
Weaver's attorney filed an amended application based on a recent change
in the interpretation of the fee-shifting provision of the LHWCA.(2)
Under the new interpretation, an attorney may recover, from the employer,
fees incurred before formal notice of the claim.
The district director ruled on the amended
fee application by awarding fees at $100 per hour and divided the fee between
Ingalls and Weaver. The division held Weaver liable for $290 in fees based
on work done by his attorney before March 12, 1992, thirty days after the
receipt of formal notice by Ingalls. The remaining $150, representing work
done after March 12, was assessed against Ingalls. The BRB, sitting en
banc, affirmed this decision but divided over the continued validity of
Liggett to LHWCA cases. Weaver and the director appeal this decision.
This case calls for an interpretation of the
fee-shifting provision of the LHWCA, which reads in relevant part:
If the employer or carrier declines to pay
any compensation on or before the thirtieth day after receiving written
notice of a claim for compensation having been filed from the deputy commissioner,
on the ground that there is no liability for compensation . . . and the
person seeking benefits thereafter have utilized the services of an attorney
at law in the successful prosecution of his claim, there shall be awarded
. . . a reasonable attorney's fee against the employer or carrier.
33 U.S.C. § 928(a). Our review of statutory
interpretation by the BRB is de novo. Equitable Equip. Co. v.
Dir., OWCP, 191 F.3d 630, 631 (5th Cir. 1999) (citing Potomac Elec.
Power Co. v. Dir., OWCP, 449 U.S. 268, 279 n.18 (1980)).
Weaver and the director urge us to interpret
the word "thereafter" merely to signify that the use of an attorney is
a precondition to the assessment of fees against the employer. This interpretation
would allow an attorney, assuming the other conditions are met, to recover
fees from the employer regardless of when the attorney incurred the fees.
Ingalls, on the other hand, reads "thereafter" to mean that an attorney
could recover only those fees incurred after the thirtieth day following
the receipt of formal notice from the commissioner.
Our resolution of this question is largely
controlled by precedent. In Watkins v. Ingalls Shipbuilding, Inc.,
No. 93-4367 (5th Cir. Dec. 9, 1993) (unpublished), we were asked to interpret
this same section of the LHWCA. The claimant incurred attorney's fees over
an eight-month period preceding receipt of formal notice by the employer.
Interpreting the statute, we held that receipt of notice by the employer
was a prerequisite to the recovery of attorney's fees. Thus, any fees incurred
before receipt of such notice could not be charged against the employer.
Watkins binds this panel. Tigner
v. Cockrell, 264 F.3d 521, 526 (5th Cir. 2001) (noting rule that one
panel may not overrule an earlier panel). Accordingly, we cannot adopt
the position advanced by Weaver and the director to charge all attorney's
fees of a successful claimant against the employer. The fact that
is unpublished does not alter its precedential status, because it was decided
before January 1, 1996. 5th Cir. R. 47.5.3.(3)
Watkins dictates that the BRB's decision
be affirmed insofar as it holds Weaver responsible for those fees his attorney
incurred before February 12, 1992--the date Ingalls received formal notice.
Thus, those fees accrued between February 4 and February 12, 1992, cannot
be charged against Ingalls.
Watkins, though, answers only half
of the question. There remains the issue of those fees accrued between
February 12, 1992--when Ingalls both had received formal notice and had
controverted the claim--and March 12 1992--the thirtieth day following
receipt of notice. The district director assessed the fees accrued during
this period against Weaver. The three judges on the BRB who voted to affirm
the award did so without specific mention of the fees for this thirty-day
This question is also a matter of statutory
interpretation. The fee-shifting provision of the LHWCA contemplates four
triggering events for assessing fees against the employer: (1) formal notice,
(2) employer controversion of the claim, (3) successful prosecution by
the claimant, and (4) use of an attorney to prosecute the claim.
The wording of the controversion clause leaves
little doubt an employer can be liable for fees incurred during the thirty-day
window if the other conditions are met. The disjunctive "or" merely indicates
that the employer's act of declining to pay the claim may be triggered,
either on the thirtieth day or at any time before that day, by a controversion
of the claim.
Our court apparently has not addressed this
precise question. This interpretation, though, has been endorsed by the
BRB. Jones v. Chesapeake & Potomac Tel. Co., 11 Ben. Rev. Bd.
Serv. 7 (1979).(4)
We hereby adopt the position of the BRB and
conclude that fees incurred within the thirty-day window may be assessed
against the employer. If the employer controverts a claim within the thirty-day
window, and the other triggers have been satisfied, the fees accrued thereafter
properly may be assessed against the employer, even though they are incurred
before the thirtieth day following receipt of notice.
The order of the BRB is REVERSED and REMANDED
for recalculation of the fee award.
1. Once an employer has
notice of a claim, it has fourteen days in which either to pay or to controvert,
to avoid a 10% penalty in addition to the award. 33 U.S.C. § 914(b),(d),(e).
2. See Liggett v. Crescent
City Marine Ways & Dry Dock, 136 Ben. Rev. Bd. Serv. (MB) 135 (1997).
3. Although this rule is
framed to limit citations to unpublished opinions ("normally . . . cited
only when the doctrine of res judicata, collateral estoppel or law
of the case is applicable"), it has been interpreted to render unpublished
decisions before January 1, 1996, precedential. Of all the cases citing
this rule, only one interprets the "normally" clause of the rule to limit
citations of pre-January 1, 1996, unpublished opinions as precedent to
the specifically enumerated exceptions to the rule. Arnold v. United
States Dep't of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000), cert.
denied, 531 U.S. 1144 (2001). All other references treat the rule as
making unpublished decisions before the effective date precedential. See,
e.g., Baldwin v. Daniels, 250 F.3d 943, 946 n.** (5th Cir. 2001); United
States v. Flanagan, 87 F.3d 121, 124 (5th Cir. 1996).
4. See also Liggett
(explaining the state of the rule before Jackson v. Jewell Ridge
Coal Co., 21 Black Lung Rep. 1-27 (1997)). Employers also frequently
behave as though this is the rule. See, e.g., Kemp v. Newport News Shipbuilding
& Dry Dock Co., 805 F.2d 1152, 1152 (4th Cir. 1986) (in which employer
implicitly conceded liability for fees accrued post-controversion but within
the thirty-day window by appealing only those fees accrued before controversion).