IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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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 Harbor Workers’CompensationAct (“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 administrative law judge, who found in favor of Weaver

but awarded himlessthan 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 voluntarypayments

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,

feesincurred before formal notice ofthe 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:

Ifthe employer or carrier declinesto 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 usto 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

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

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-monthperiod preceding receipt offormal

notice by the employer. Interpreting the

statute, we held that receipt of notice by the

employer was a prerequisite to the recovery of

attorney’sfees. 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 (5thCir. 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

Watkins is unpublished does not alter its precedentialstatus, because it was decided before

January 1, 1996. 5TH CIR. R. 47.5.3.3 

Watkins dictatesthat theBRB’s decision be

affirmed insofar asit holdsWeaverresponsible

for those fees his attorneyincurred before February 12, 1992SSthe 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,

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

eventsfor 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

leaveslittle 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 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 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-daywindow 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 properlymaybe 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.

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).