Weaver v. DOWCP, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-60475
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CLAUDE O. WEAVER,
Petitioner,
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondent,
VERSUS
INGALLS SHIPBUILDING, INC.,
Respondent.
_________________________
Petition for Review of an Order of
the Benefits Review Board
_________________________
February 26, 2002
Before JOLLY, SMITH, and BENAVIDES,
Circuit Judges.
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.
I.
On February 4, 1992, Weaver filed a claim
for hearing loss under the Longshore and Har-
bor Workers’ Compensation Act (“LHWCA”)
against his former employer, Ingalls
Shipbuilding, Inc. (“Ingalls”), which

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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 administra-
tive 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.
II.
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 no-
tice of a claim for compensation having
been filed from the deputy commission-
er, 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 as-
sessment 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
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).

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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. Cock-
rell, 264 F.3d 521, 526 (5th Cir. 2001) (noting
rule that one panel may not overrule an earlier
panel). Accordingly, we cannot adopt the po-
sition advanced by Weaver and the director to
charge all attorney’s fees of a successful
claimant against the employer. The fact that
Watkins is unpublished does not alter its pre-
cedential 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 Feb-
ruary 12, 1992SSthe date Ingalls received for-
mal 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,
1992SSwhen Ingalls both had received formal
notice and had controverted the claimSSand
March 12 1992SSthe 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
period.
This question is also a matter of statutory
interpret ation. 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
3 Although this rule is framed to limit citations
to unpublished opinions (“normally . . . cited only
when the doctrine of res judicata, collateral estop-
pel or law of the case is applicable”), it has been
interpreted to render unpublished decisions before
January 1, 1996, precedential. Of all the cases cit-
ing 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. Ar-
nold 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 ef-
(continued...)
3(...continued)
fective 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).

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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 be-
fore the thirtieth day following receipt of
notice.
The order of the BRB is REVERSED and
REMANDED for recalculation of the fee
award.
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).

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