Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60251

ROBERT ANDREPONT

Petitioner

v.

MURPHY EXPLORATION AND PRODUCTION CO; LIBERTY MUTUAL

INSURANCE CO; DIRECTOR, OFFICE OF WORKER'S COMPENSATION

PROGRAMS, US DEPARTMENT OF LABOR

Respondents

Petition for Review of an Order

of the Benefits Review Board 

(08-0269)

Before GARWOOD, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

On May 14, 1999, claimant-petitioner Robert Andrepont (“Andrepont”)

injured his left knee during the course of his employment with employerrespondent Murphy Exploration & Production Co. (“Murphy”). He was able to

continue working on a seven-days-on, seven-days-off schedule until April 21,

2000. At that time, he became temporarily totally disabled because of five

surgeries on his knee. From April 22, 2000 to December 12, 2001, Murphy paid

Andrepont compensation for temporary total disability. The treating physician

found that Andrepont reached maximum medical improvement as of December

United States Court of Appeals

Fifth Circuit

F I L E D

March 17, 2009

Charles R. Fulbruge III

Clerk
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13, 2001. After December 12, 2001, Murphy voluntarily initiated payment of

compensation for permanent partial disability based on a twenty-six percent

permanent impairment of the left leg. 

On November 18, 2002, Andrepont filed a claim for compensation with the

Department of Labor’s Office of Workers’ Compensation Programs (“OWCP”)

under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”),

codified at 33 U.S.C. §§ 901-950, for permanent total disability. Murphy

continued to pay Andrepont compensation for permanent partial disability. The

OWCP’s Office of the District Director held an informal conference with the

parties on September 25, 2003, in which the examiner concluded that Murphy

had established the availability of suitable alternate employment and Murphy

did not owe any further compensation. The employer accepted this

recommendation. Claimant requested the claim be referred to an administrative

law judge. The administrative law judge found Murphy had established the

availability of suitable alternate employment based on a job identified on

February 17, 2003 and therefore no longer owed compensation past that date.

However, the claimant was also awarded compensation for permanent total

disability (not just the twenty-six percent partial disability payments the

company had paid) from December 13, 2001 to February 17, 2003. 

Claimant’s counsels then submitted a petition to the administrative law

judge requesting attorneys’ fees pursuant to LHWCA sections 28(a)-(b), codified

at 33 U.S.C. § 928(a)-(b). The administrative law judge held Murphy liable for

attorneys’ fees because the claimant obtained greater compensation than

Murphy had initially agreed to pay. Murphy then appealed the award of

attorneys’ fees. The Benefits Review Board (“BRB”), in a split decision, agreed

with Murphy and denied the petitioner’s counsel any attorneys’ fees because (a)

Murphy was voluntarily paying claimant compensation for permanent partial
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disability when the claimant filed his claim for permanent total disability, and

(b) Murphy had accepted the district director’s recommendation not to pay any

further compensation. Andrepont timely petitions this court for review.

STANDARD OF REVIEW

“This Court conducts a de novo review of the BRB’s rulings of law, owing

them no deference because the BRB is not a policymaking agency.” Pool Co. v.

Cooper, 274 F.3d 173, 177 (5th Cir. 2001) (citations omitted). “But this court does

afford Skidmore deference to the Director’s interpretations of the LHWCA. . . .

Under this approach, the amount of deference owed the Director’s interpretation

‘will depend upon the thoroughness evident in its consideration, the validity of

its reasoning, its consistency with earlier and later pronouncements, and all

those factors which give it power to persuade, if lacking power to control.’”

Avondale Inds., Inc. v. Alario, 355 F.3d 848, 851 (5th Cir. 2003) (quoting United

States v. Mead Corp., 533 U.S. 218, 228 (2001) (quoting Skidmore v. Swift & Co.,

323 U.S. 134, 140 (1944))).

DISCUSSION

A. Shifting Attorneys’ Fees Under the LHWCA. 

Sections 28(a)-(b), codified as 33 U.S.C. §§ 928(a)-(b), provide two bases for

awarding attorneys’ fees upon successful prosecution of a LHWCA claim: 

(a) Attorney’s fee; successful prosecution of claim

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 within the

provisions of this chapter and the person seeking benefits shall

thereafter have utilized the services of an attorney at law in the

successful prosecution of his claim, there shall be awarded, in

addition to the award of compensation, in a compensation order, a
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reasonable attorney’s fee against the employer or carrier in an

amount . . . 

(b) Attorney’s fee; successful prosecution for additional

compensation; independent medical evaluation of disability

controversy; restriction of other assessments

If the employer or carrier pays or tenders payment of compensation

without an award pursuant to section 914(a) and (b) of this title,

and thereafter a controversy develops over the amount of additional

compensation, if any, to which the employee may be entitled, the

deputy commissioner or Board shall set the matter for an informal

conference and following such conference the deputy commissioner

or Board shall recommend in writing a disposition of the

controversy. If the employer or carrier refuses to accept such written

recommendation, within fourteen days after its receipt by them,

they shall pay or tender to the employee in writing the additional

compensation, if any, to which they believe the employee is entitled.

If the employee refuses to accept such payment or tender of

compensation, and thereafter utilizes the services of an attorney at

law, and if the compensation thereafter awarded is greater than the

amount paid or tendered by the employer or carrier, a reasonable

attorney’s fee based solely upon the difference between the amount

awarded and the amount tendered or paid shall be awarded in

addition to the amount of compensation. The foregoing sentence

shall not apply if the controversy relates to degree or length of

disability . . . If the claimant is successful in review proceedings

before the Board or court in any such case an award may be made

in favor of the claimant and against the employer or carrier for a

reasonable attorney’s fee for claimant's counsel in accord with the

above provisions. In all other cases any claim for legal services shall

not be assessed against the employer or carrier.

In FMC v. Perez, we construed these provisions and concluded that “the LHWCA

provides for the award of attorney’s fees to an LHWCA claimant in only two

circumstances.” 128 F.3d 908, 909-10 (5th Cir. 1997). We said, “[u]nder [33

U.S.C. § 928(a)] the claimant is entitled to attorney’s fees if the employer

‘declines to pay any compensation....’” Id. (quoting 33 U.S.C. § 928(a)). “An
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employee may be entitled to attorney’s fees under [33 U.S.C. § 928(b)] if, after

an informal conference, the employer rejects the recommendations of the Board

or commissioner; the employer tenders an amount in lieu of the

recommendation; the employee rejects the amount tendered by the employer; the

employee hires an attorney; and the employee obtains an amount greater than

the amount tendered.” Id. at 909-91 (emphasis added). 33 U.S.C. § 928(b) thus

“gives an employer an opportunity to avoid the payment of attorney’s fees by

either (1) accepting the Board’s or Commissioner’s recommendations or (2)

refusing those recommendations but tendering a payment that is accepted by the

claimant.” Id. at 910. 

1. Awarding Attorneys’ Fees under 33 U.S.C. § 928(a) is Not Authorized

We have consistently construed 33 U.S.C. § 928(a) to incorporate a

condition precedent, namely that the employer must contest liability before

section 928(a) authorizes fee-shifting. See Dir., Office of Workers’ Comp.

Programs, U.S. Dep’t of Labor v. Black Diamond Coal Mining Co., 598 F.2d 945,

953 (5th Cir. 1979) (“[T]he condition precedent [under 33 U.S.C. s 928(a)] to

recovery of attorneys’ fees is a contest of liability”). In other words, we award

attorneys’ fees under section 928(a) only if the employer believes it is not liable

for any compensation or “no compensation is owing” regardless of the specific

type of compensation requested. Ayers S. S. Co. v. Bryant, 544 F.2d 812, 813

(5th Cir. 1977). Therefore, if the employer admits to liability for the injury and

tenders any compensation, it is not liable for attorneys’ fees under section 928(a).

See Savannah Mach. & Shipyard Co. v. Dir., Office of Workers’ Comp. Programs,

642 F.2d 887, 889 (5th Cir. 1981) (“Since the [employer] tendered partial

compensation, we agree that [33 U.S.C. § 928(a)] is inapplicable to the situation

at hand.”). 
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As stated plainly in the statute, the relevant period for determining if the

employer has tendered some compensation is the thirty days after the filing of

the written claim. Accordingly, if the employer pays some partial compensation

during those thirty days, thereby admitting to liability for the injury, section

928(a) does not apply. See, e.g., Pool Co. v. Cooper, 274 F.3d 173, 186-87 (5th Cir.

2001). Murphy admits liability for the injury and paid partial compensation for

the injury throughout the thirty days. Therefore, section 928(a) does not

authorize fee-shifting in this case. See id. 

We have contrasted section 928(a) with section 928(b) in Ayers and said

that section 928(b) applies to “situation[s] where the employer and claimant

agree that some compensation is due but disagree as to what amount.” 544 F.2d

at 813; see also Savannah Mach., 642 F.2d at 889-90 & n.7 (applying section

928(b) to a claimant who “accepts partial compensation, but who claims

additional compensation.”). Here, the claimant accepted partial compensation

for his injury (26% partial disability benefits), but claims “additional

compensation,” i.e., total disability benefits or the remaining 74%, for the same

injury. Accordingly, this case is properly analyzed under section 928(b), not

section 928(a).

2. Awarding Attorneys’ Fees under 33 U.S.C. § 928(b) is Not Authorized

 In FMC, we clearly construed 33 U.S.C. § 928(b) as giving “an employer

an opportunity to avoid the payment of attorney’s fees by either (1) accepting the

Board’s or Commissioner’s recommendations [after an informal conference] or

(2) refusing those recommendations but tendering a payment that is accepted by

the claimant.” 128 F.3d at 910. In this case, Murphy accepted the

recommendations that resulted from the informal conference; under FMC,

Murphy thereby avoids any obligation to pay attorneys’ fees. Id. Moreover, in
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Staftex Staffing v. Dir., Office of Workers’ Comp. Programs, 237 F.3d 409, 410

(5th Cir. 2000), we emphasized the fact that the employer did not accept the

claims examiner’s recommendations, which followed the informal conference,

and used this fact as a reason to affirm the BRB’s award of attorneys’ fees. See

also Staftex Staffing v. Dir., Office of Worker’s Comp. Programs, 237 F.3d 404,

409 (5th Cir.), opinion modified on reh’g on other grounds, 237 F.3d 409 (2000)

(“Section 928(b) permits claimants to obtain attorney’s fees only where: (1) the

board has held an informal conference on the disputed issue; (2) the board issues

a written recommendation on that issue; and (3) the employer refuses to accept

the recommendation.”) (emphasis added). A requirement that the employer must

refuse to accept the recommendations before attorneys’ fees can be awarded is

found in the plain statutory text: 

If the employer or carrier refuse to accept such written

recommendation, within fourteen days after its receipt by them,

they shall pay or tender to the employee in writing the additional

compensation, if any, to which they believe the employee is entitled.

If the employee refuses to accept such payment or tender of

compensation, and thereafter utilizes the services of an attorney at

law, and if the compensation thereafter awarded is greater than the

amount paid or tendered by the employer or carrier, a reasonable

attorney’s fee based solely upon the difference between the amount

awarded and the amount tendered or paid shall be awarded in

addition to the amount of compensation

33 U.S.C. 928(b) (emphasis added). 

In James J. Flanagan Stevedores, Inc. v. Gallagher, we acknowledged, but

declined to address, contrary Ninth Circuit authority that would permit the

award of attorneys’ fees whether or not the employer accepted or rejected the

recommendations from the informal conference. 219 F.3d 426, 435 n.18 (5th Cir.

2000) (citing Nat’l Steel & Shipbuilding Co. v. U.S. Dep’t of Labor, 606 F.2d 875,
8

882 (9th Cir. 1979); Matulic v. Dir., Office of Workers Comp. Programs, 154 F.3d

1052, 1061 (9th Cir. 1998)). The Ninth Circuit acknowledges that section 928(b)

plainly requires the employer to have rejected the recommendation before an

award of attorneys’ fees can be granted. See Todd Shipyards Corp. v. Dir., Office

of Workers Comp. Programs, 950 F.2d 607, 611 (9th Cir. 1991) (“Congress has

determined, however, that if an employer pays the benefits claimed by the

employee, the employer will not be responsible for the payment of attorneys’

fees, unless the employer rejects the written recommendation of the claims

examiner following the informal hearing and the employee obtains additional

benefits at a formal hearing before the Department of Labor.”). However, in Nat’l

Steel & Shipbuilding Co., the Ninth Circuit looked beyond the plain language

and concluded that “congressional intent was to limit liability [for attorneys’

fees] to cases in which the parties disputed the existence or extent of liability,

whether or not the employer had actually rejected an administrative

recommendation.” 606 F.2d at 882; see also Matulic, 154 F.3d at 1060-61 (relying

on the statutory “intent” to justify the rule that “the claimant is entitled to

attorney’s fees where the extent of liability is controverted and the claimant

successfully obtains increased compensation, ‘whether or not the employer had

actually rejected an administrative recommendation.’”) (quoting Nat’l Steel &

Shipbuilding Co., 606 F.2d at 882). 

In Holliday v. Todd Shipyards Corp., 654 F.2d 415, 418 (5th Cir. 1981),

overruled on other grounds by Phillips v. Marine Concrete Structures, Inc., 895

F.2d 1033, 1035 (5th Cir. 1990), we noted that “[s]ection 28 does not provide for

attorneys’ fee awards in every case in which the claimant is successful.” As the

Ninth Circuit acknowledges, the statute here literally bars fee-shifting for this

factual situation. Therefore, a literal reading of the statute subjects claimants
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like Andrepont to the presumptive and generally applicable American Rule that

bars fee-shifting. Under the American Rule, a fee-shift is allowed only if there

is some “specific and explicit” statutory exception. See id. at 419-20 (quoting

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 260 (1975)).

Because the statute does not literally provide for fee-shifting when employers

accept the BRB’s recommendation after an informal conference, there is no

“specific and explicit” statutory exception that warrants a departure from the

generally applicable and presumptive American Rule. See id. 

In agreement with this position, the Sixth and Fourth Circuits have also

rejected the Ninth Circuit’s “legislative intent” approach, specifically referencing

our decisions in Staftex Staffing and FMC and concluding that one of section

928(b)’s explicit prerequisites for an attorneys’ fees award is that the employer

must reject the recommendations that emerge from the informal conference. See,

e.g., Pittsburgh & Conneaut Dock Co. v. Dir., Office of Workers’ Comp. Programs,

473 F.3d 253, 265-66 (6th Cir. 2007) (“The Fifth Circuit has consistently required

that each of the requirements set forth in subsection (b) be met before an

employer incurs liability for attorney’s fees.”); Va. Int’l Terminals, Inc. v.

Edwards, 398 F.3d 313, 318 (4th Cir. 2005) (“[S]ection 928(b) requires all of the

following: (1) an informal conference, (2) a written recommendation from the

deputy or Board, (3) the employer’s refusal to adopt the written

recommendation, and (4) the employee’s procuring of the services of a lawyer to

achieve a greater award than what the employer was willing to pay after the

written recommendation.”). 

We are required to construe the plain meaning of the statute, and the

plain language of Section 28(b) requires that an employer must refuse to accept
 Judge Garwood does not join our subsequent statements in this paragraph and the

1

following paragraph.

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the informal recommendation before attorneys’ fees are shifted. We note 1

parenthetically that requiring this element might seem odd when the informal

recommendation was completely favorable to the employer. It is unclear what

an employer could do to refuse to accept a favorable recommendation. Under our

result, therefore, a claimant who loses at the informal conference has only two

options: accept the result, or seek greater compensation before the ALJ and

suffer a reduction in his or her benefits based on the cost of hiring an attorney

to pursue the claim. Thus, the practical effect here is to cut into Andrepont’s

recovery, which seems to be adverse to the purpose of the statute. See Oilfield

Safety & Mach. Specialties, Inc. v. Harman Unlimited, Inc., 625 F.2d 1248, 1257

(5th Cir. 1980) (noting that the fee-shifting provision “ensures that an employee

will not have to reach into the statutory benefits to pay for legal services, thus

diminishing the ultimate recovery”). As the dissenting Administrative Appeals

Judge wrote, “The literal construction of Section 28(b) runs counter to the

purpose of the Act’s fee-shifting provisions in cases, such as this, where the

claimant obtains greater compensation by virtue of the proceedings before the

administrative law judge.” Cf. Pittsburgh & Conneaut Dock Co., 473 F.3d at 272

(Moore, J., concurring in part and dissenting in part) (“The statute mentions

these formalities, but it does not state that they are preconditions to an award

under § 928(b). Therefore, the plain language of the statute does not address the

situation, when, as here, the formalities were lacking through no fault of the

claimant . . . .”). 

If we could elevate the purposes of the statute above the plain text

reading, we might be more sympathetic to Andrepont’s argument in this regard.
11

However, the statute does not specifically or explicitly mandate fee-shifting in

this situation, instead it requires the employer to “refuse to accept” the informal

recommendation before shifting the burden of claimant’s attorneys’ fees. It may

be that Congress did not intend to preclude the award of attorneys’ fees based

on the lack of the employer refusing to accept a fully favorable recommendation.

But based on the plain text of Section 928(b)—which includes refusing to accept

as an element—fee-shifting is unavailable here, notwithstanding this seeming

anomaly. Andrepont’s policy arguments are therefore best addressed to

Congress, not the courts.

“In a statutory construction case, the beginning point must be the

language of the statute, and when a statute speaks with clarity to an issue

judicial inquiry into the statute’s meaning, in all but the most extraordinary

circumstance, is finished.” Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469,

475 (1992). Accordingly, in line with prior precedent and the plain statutory

language, an award of attorneys’ fees under section 928(b) requires the employer

to have refused to accept the recommendations that emerge from the informal

conference. Because Murphy accepted the recommendations, section 928(b) does

not authorize an award in this case. 

The BRB was correct in denying an award of attorneys’ fees under sections

928(a) and 928(b). We now DENY the petition for review.