## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 00-60475

_______________



### C LAUDE 

### O. W EAVER



### ,

Petitioner,



### D IRECTOR



### , O FFICE OF 

### W ORKERS 

### ’ C OMPENSATION 

### P ROGRAMS



### ,

U NITED 

### S TATES 

### D EPARTMENT OF 

### L ABOR



### ,

Respondent,

VERSUS



### I NGALLS 

### S HIPBUILDING



### , I NC



### .,

Respondent.

_________________________

Petition for Review of an Order of

the Benefits Review Board

_________________________

February 26, 2002

Before J OLLY

, S MITH , and B ENAVIDES

, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Claude Weaver appeals a decision of th e 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’ Compensation Act (“LHWCA”)

against his former employer, Ingalls

Shipbuilding, Inc. (“Ingalls”), which2

co nt roverted 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

pay ment s on the claim and offered to settle;

Weaver rejected this o ffer, 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 att o rney then submitted an

applicat i on for attorney’s fees. The district

director denied the ap plication 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 attorne y filed an amended

application based on a recent change in the

interpretation of

t he fee-shifting provision of

the LHWCA. 2 Under the new interpretation,

a n attorney may recover, from the employer

, fees incurred before formal notice of the claim.

The district director ruled on the amended

fee applica t io n by awarding fees at $100 per

hour and divided the fee between Ingalls and

Weaver. The division held Weaver liable for

$290 i n fees based on work done by his

a ttorney before March 12, 1992, thirty da y s

after the receipt o f fo rmal notice by Ingalls. The remaining $150, representing work done

after March 12, was assessed against Ingalls.

The BRB, sitting en b anc, affirmed this

de cision but divided over the continued

validity of Liggett to LHWCA cases. Weaver

and the director appeal this decision.

II.

This case cal ls 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 liabilit y

for com pensation . . . and the person

seeking benefits thereafter have utilized

the services of an attorney at law in the

successf u l 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 revi ew of statutory

i nterpretati on by the BRB is de no vo

. E quitable Equip. Co. v. Dir., OWCP , 191

F.3d 630, 631 (5th Cir. 1999) (citing Potomac

Elec. Pow er 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 woul d allow an attorney,

ass uming the other conditions are met, to

recover fees from the employer regardl e ss of

when the at t o rney 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

fou r teen 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. Re v. Bd. Serv. (MB) 135

(1997).3

inc u rred after the thirtieth day following the

receipt of

f ormal notice from the

commissioner.

O u r resolution of this question is largely

controlled by precedent. In W atkins 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 f ormal

notice by the employer. Interpreti ng 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 coul d not be charged

against the employer.

Watkins binds this panel. T i gner 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

Watkin s is unpublished does not alter its precedential status, because it was decided before

January 1, 1996. 5 TH C IR

. 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 

### SS

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 o f t hose

f ees accrued between February 12,

1992 

### SS when Ingalls both had received formal

notice and had controverted the claim 

### SS and

March 12 1992 

### SS

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

period.

This questio n is also a matter of statutory

inter pret ation. The fee-shifting provision of

the LHWCA cont e mplates 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 i ndicates 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 app licable”), 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. A rnold 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)

fe ctive date precedential. S ee, 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

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 positio n of the BRB

an d co nclude 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 theyare incurred bef ore the thirtieth day following receipt of

notice.

The order of the BRB is REVERSED and

REMANDED for r e calculation of the fee

award.

4 See also Liggett ( explaining the state of the

rule before Jackson v. Jewell Ridge Coal Co. , 21

Black Lun g Rep. 1-27 (1997)). Employers also

fr equently behave as though this is the rule. S e e

, 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

t hir ty-day window by appealing only those fees

accrued before controversion).