           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 17, 2009
                                       No. 08-60251
                                                                       Charles R. Fulbruge III
                                                                               Clerk
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 employer-
respondent 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


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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.”).



                                         5
      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,



                                        7
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




                                         9
the informal recommendation before attorneys’ fees are shifted.1 We note
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.



       1
        Judge Garwood does not join our subsequent statements in this paragraph and the
following paragraph.

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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.




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