Day v. James Marine Inc

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0108p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioner, -

LARRY D. DAY,

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No. 06-4004

v.

,

>

JAMES MARINE, INC., and DIRECTOR, OFFICE OF -

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WORKERS’ COMPENSATION PROGRAMS, UNITED

Respondents. -

STATES DEPARTMENT OF LABOR,

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On Petition for Review of an Order

of the Benefits Review Board.

No. 06-0518.

Argued: November 29, 2007

Decided and Filed: March 7, 2008

Before: ROGERS and SUTTON, Circuit Judges; BERTELSMAN, District Judge.*

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COUNSEL

ARGUED: Joshua Gillelan II, LONGSHORE CLAIMANTS’ NATIONAL LAW CENTER,

Washington, D.C., for Petitioner. Robert D. Nienhuis, GOLDSTEIN & PRICE, St. Louis, Missouri,

Rita Roppolo, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for

Respondents. ON BRIEF: Joshua Gillelan II, LONGSHORE CLAIMANTS’ NATIONAL LAW

CENTER, Washington, D.C., Steven C. Schletker, STEVEN SCHLETKER, ATTORNEY AT

LAW, Covington, Kentucky, for Petitioner. Robert D. Nienhuis, GOLDSTEIN & PRICE, St. Louis,

Missouri, Rita Roppolo, Mark A. Reinhalter, UNITED STATES DEPARTMENT OF LABOR,

Washington, D.C., for Respondents.

SUTTON, J., delivered the opinion of the court, in which BERTELSMAN, D.J., joined.

ROGERS, J. (pp. 9-12), delivered a separate opinion concurring in part and dissenting in part.

*

The Honorable William O. Bertelsman, Senior United States District Judge for the Eastern District of

Kentucky, sitting by designation.

1

No. 06-4004 Day v. James Marine, Inc., et al. Page 2

_________________

OPINION

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SUTTON, Circuit Judge. There is a little more to this dispute than the topic (attorney’s fees)

and the amount at stake (less than $15,000) would suggest. Larry Day says that the Benefits Review

Board erred in determining that a portion of the fees he incurred in seeking workers’ compensation

did not shift to his employer, James Marine, under the Longshore and Harbor Workers’

Compensation Act. Because the Board correctly determined that the Act does not allow an

employee to collect attorney’s fees incurred before the employer has rejected the employee’s claim,

we affirm this aspect of the Board’s decision. But because the Act does allow—and indeed

requires—fee shifting from the time the employer rejects the employee’s claim through the

employee’s successful prosecution of that claim, we reverse the Board’s contrary ruling on this

point.

I.

Larry Day, a 60-year-old welder, began working for James Marine, a boat-repair company,

in 1985. In 2000, Day injured his neck while working for the company on the Tennessee River near

Paducah, Kentucky, forcing Day to take disability leave. Over the next several years, Day

developed additional complications from his neck injury and eventually was forced to stop working.

As a result, he filed a claim for workers’ compensation under the Act, which ultimately succeeded.

After obtaining compensation, Day sought attorney’s fees. The Benefits Review Board

allowed Day to obtain fees for two time periods: (1) from October 30, 2001 (when James Marine

received the deputy commissioner’s notice of claim) until January 17, 2002 (when James Marine

began paying disability compensation); and (2) from July 28, 2003 (when James Marine stopped

paying disability compensation) until September 16, 2003 (when the case was transferred to an

Administrative Law Judge). The end result left James Marine liable for $4,690 in fees and Day

responsible for $9,415. Day and James Marine each appeal aspects of this award.

II.

Enacted in 1927, the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901

et seq., provides compensation for employees injured while working on the navigable waters or

adjoining land areas of the United States, id. § 903; see also Ne. Marine Terminal Co. v. Caputo,

432 U.S. 249, 256–57 (1977). Since 1972, the Act, like several other federal statutes, has rejected

the “American Rule,” which requires litigants to bear their own expenses, Alyeska Pipeline Serv.

Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975), and has permitted claimants to obtain “a

reasonable attorney’s fee” under certain circumstances, 33 U.S.C. § 928(a), (b); see also, e.g., 42

U.S.C. § 1988(b); id. § 2000e-5(k) (“Title VII”). Unlike fee-shifting statutes such as § 1988 and

Title VII, however, the Act makes fee awards mandatory. It says that a reasonable attorney’s fee

“shall” be paid, 33 U.S.C. § 928(a), (b), not that it “may” be paid, see, e.g., 42 U.S.C. § 1988(b);

id. § 2000e-5(k). And unlike these other statutes, the Act establishes a highly reticulated process

for determining when mandatory fees must be awarded.

Section 928(a) requires fee awards where the employer refuses to pay workers’

compensation after receiving notice of the 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

No. 06-4004 Day v. James Marine, Inc., et al. Page 3

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 reasonable attorney’s fee against the employer or carrier in an

amount approved by the deputy commissioner, Board, or court, as the case may be,

which shall be paid directly by the employer or carrier to the attorney for the

claimant in a lump sum after the compensation order becomes final.

33 U.S.C. § 928(a).

Before an employee may obtain fees, in other words, (1) he must file a claim with the deputy

commissioner; (2) the employer must receive written notice of the claim from the deputy

commissioner; (3) the employer must decline to pay compensation or allow 30 days to lapse without

paying compensation; and (4) the employee “thereafter” must use an attorney to prosecute his claim

successfully.

Section 928(b) authorizes fees in a different setting—where the employer pays workers’

compensation but a dispute develops over the amount of compensation due. It says:

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

refuse[s] 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, and if the employer or carrier offers to submit the case for evaluation by

physicians employed or selected by the Secretary, as authorized in section 907(e) of

this title and offers to tender an amount of compensation based upon the degree or

length of disability found by the independent medical report at such time as an

evaluation of disability can be made. 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.

Id. § 928(b).

This subsection, in excruciating detail, requires four things to happen before fees may shift:

(1) an informal conference between the parties; (2) a written recommendation from the deputy

commissioner or Board; (3) a refusal by the employer to adopt this recommendation; and (4) the

claimant’s use of an attorney to obtain more compensation than the employer was willing to pay.

Even then, the last sentences of the subsection add other limitations on the amount of any fee award.

No. 06-4004 Day v. James Marine, Inc., et al. Page 4

A.

Day first argues that § 928(a) allows him to obtain attorney’s fees for the period of time

before his employer had received formal notice of and rejected his claim—what the parties and the

Board call “pre-controversion” fees. See id. § 914(d). The problem with this argument is that it fails

to account for a temporal limitation that § 928(a) places on fee awards. That subsection, recall,

authorizes fees only when “the person seeking benefits shall thereafter have utilized the services of

an attorney at law in the successful prosecution of his claim,” id. § 928(a) (emphasis added)—only

in other words when he files a claim with the deputy commissioner, the employer receives notice

of the claim, the employer declines to pay compensation and he “thereafter” uses an attorney to

prosecute his claim successfully.

“Thereafter” normally means “after that” or “from then on.” Webster’s Third New

International Dictionary 2372 (2002). We see no good reason to ignore that cue here. This is a

statute whose elaborate details suggest that every word matters, that creates other specific

preconditions for obtaining fees and that ends by saying this and no more: “In all other cases any

claim for legal services shall not be assessed against the employer or carrier.” 33 U.S.C. § 928(b).

Nor is there anything absurd, or otherwise strange, about saying that fees may shift—particularly

on a mandatory basis—only after the employer declines paying the claim. See Watkins v. Ingalls,

No. 93-4367, 1993 WL 530243, at *1 (5th Cir. Dec. 9, 1993) (rejecting a similar argument and

declining “to rewrite the statute”).

In addition to respecting the meaning of “thereafter,” this interpretation respects its usage

in the adjacent subsection. Section 928(b) uses “thereafter” in its first sentence and plainly does so

in a context that connotes “after that”: “If the employer or carrier pays or tenders payment of

compensation without an award . . . 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.” (emphasis

added).

The same inference, indeed a stronger inference, arises from the third sentence of § 928(b):

“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 . . . , 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.” (emphasis added). Here we have a similar phrase:

§ 928(a) says “shall thereafter have utilized the services of an attorney at law in the successful

prosecution of his claim,” while § 928(b) says “thereafter utilizes the services of an attorney at law.”

And we have the phrase being used in a sentence that later says “thereafter” in a context that no one

doubts has an “after that” connotation. It is not often that Congress gives the same term two

different meanings in adjacent subsections of a statute, much less in the same sentence of one of

those subsections. If words are known by the surrounding “company they keep,” Logan v. United

States, 128 S. Ct. 475, 482 (2007), they are surely known by how they are used in the surrounding

sections of the same statute, see, e.g., Powerex Corp. v. Reliant Energy Servs., Inc., 127 S. Ct. 2411,

2417 (2007) (“[I]dentical words and phrases within the same statute should normally be given the

same meaning.”).

Also supporting this interpretation is the context in which the fee-shifting provisions arose.

Congress added the provisions in the 1972 amendments to the Act, which increased workers’

benefits at the same time they sought to simplify the process for obtaining compensation. While

authorizing fee shifting in discrete circumstances, the amendments created a mechanism for

identifying, and resolving, disputes without incurring any attorney’s fees—“without the necessity

No. 06-4004 Day v. James Marine, Inc., et al. Page 5

of relying on assistance other than that provided by the Secretary of Labor.” Kemp v. Newport News

Shipbuilding & Dry Dock Co., 805 F.2d 1152, 1153 (4th Cir. 1986). Under that process, a claimant

first files a claim with the deputy commissioner, not the employer. 33 U.S.C. § 913(a). The deputy

commissioner conducts an independent investigation into the employee’s claim. Id. § 919(c). The

deputy commissioner assists the claimant in determining the compensation for which he is eligible

and in processing his claim—including by “provid[ing] . . . legal assistance.” Id. § 939(c)(1). Only

then, if these non-adversarial steps fail, does the possibility of claim adjudication exist, which

suggests that the deputy commissioner offers assistance in the pre-adjudication stage of claims

processing in place of, not in addition to, outside counsel, and which furthers a policy of

encouraging claimants to use the services of the deputy commissioner, not outside counsel, before

the employer knows about, and has a reasonable opportunity to pay, a claim for compensation. See

S. Rep. No. 92-1125, at 15 (1972) (“It is intended that this assistance be all inclusive and enable the

employee to receive the maximum benefits due to him without having to rely on outside assistance

other than that provided by the Secretary.”); H.R. Rep. No. 92-1441, at 9 (1972) (“Attorney[’]s fees

may only be awarded against the employer where the claimant succeeds, and the fees awarded are

to be based on the amount by which the compensation payable is increased as a result of litigation.

Attorney[’]s fees may not be assessed against employers (or carriers) in other cases.”).

All of this may explain why the statute says that the claimant “shall thereafter have utilized

the services of an attorney . . . in the successful prosecution of his claim.” 33 U.S.C. § 928(a)

(emphasis added). In view of the streamlining of the administrative process in 1972 and the user-

friendly nature of the system that Congress created with these amendments, it is difficult to

characterize pre-controversion fees as part of the “successful prosecution of [a] claim.” Before the

employer receives notice from the deputy commissioner and rejects a claim, the claimant has

nothing to “prosecut[e]”—nothing indeed that the deputy commissioner’s alternative-dispute efforts

might not resolve on their own.

Day and the Director offer several contrary arguments, all unpersuasive. As they read the

statute, it means only that post-dispute attorney assistance is a condition to fee shifting, but once that

condition is met the claimant may recover all fees without regard to when the claimant incurs the

fees—whether before controversion or after. No doubt, this might be a reasonable way to draft a

statute in the first instance, and it is the way many other fee-shifting statutes work. See, e.g., 42

U.S.C. § 1988(b); id. § 2000e-5(k). But in contrast to these other statutes, this one has a temporal

limitation—the “thereafter” clause—one that has little (if any) content under their reading. Not

quite true, they respond: “thereafter” still has meaning because, if a claimant does not use an

attorney after the employer controverts the claim, fees do not shift. In one sense, they are right: If

the claimant uses an attorney before the employer controverts his claim, then successfully prosecutes

the claim by himself afterwards, he could not recover fees. But why Congress would be concerned

about a situation where the claimant hires an attorney when he does not need one given the

Director’s duty to facilitate claims collection, including by “provid[ing] . . . legal assistance,” 33

U.S.C. § 939(c)(1), but fires that attorney when he does need one given the unsuccessful conclusion

of the non-adversarial process and the onset of the adjudicative process is never explained and

indeed makes no sense. Statutory interpretation is not an “exercise in the conceivable,” Dir., OWCP

v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 135 (1995), or, it follows, an exercise

in the inconceivable.

In the alternative, Day and the Director contend that “thereafter” “really has no

meaning, . . . no significance as a limitation.” But since we expect “[e]very word in the statute” to

have “meaning,” and since we try to “give effect to all the words to avoid an interpretation which

would render words superfluous or redundant,” Walker v. Bain, 257 F.3d 660, 667 (6th Cir. 2001),

they carry a heavy burden. Because “thereafter” has a sensible fee-limiting purpose, because it is

surrounded by words that share that purpose and because Congress gave the word a similar meaning

throughout § 928, we will not sideline the term.

No. 06-4004 Day v. James Marine, Inc., et al. Page 6

Principles of administrative deference do not advance the Director’s position. Because the

Board is not a policymaking body, we review its legal conclusions de novo. Potomac Elec. Power

Co. v. Dir., OWCP, 449 U.S. 268, 279 n.18 (1980); Pittsburgh & Conneaut Dock Co. v. Dir.,

OWCP, 473 F.3d 253, 258 (6th Cir. 2007). And the Director concedes that his litigation position

in this case is not entitled to Chevron deference but only to Skidmore deference. See Metro.

Stevedore Co. v. Rambo, 521 U.S. 121, 136 (1997).

Under Skidmore v. Swift & Co., 323 U.S. 134 (1944), deference to an agency’s position turns

on “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.” Id. at 140. But in this instance the Director’s position fails to give plausible

meaning to a provision (“thereafter”) that Congress used four times in § 928 and that consistently

places a limitation on fee awards; and it fails to respect the design of the statutes, which attempt to

make outside counsel a privilege, not a necessity, during the informal, non-adversarial, pre-

controversion stage of the claims process.

Clinchfield Coal Co. v. Harris, 149 F.3d 307 (4th Cir. 1998), does not change matters. It did

not apply Skidmore deference, but the near-total deference that we give to an agency’s

interpretations of its own regulations. Id. at 309–10; see Auer v. Robbins, 519 U.S. 452 (1997). The

Director seeks no such deference here because this dispute does not turn on the meaning of an

agency regulation and perhaps because, in the aftermath of Gonzales v. Oregon, 546 U.S. 243

(2006), it is far from clear whether even the regulation at issue in Clinchfield would receive such

deference today. See id. at 257 (“[T]he near-equivalence of the statute and regulation belies the

Government’s argument for Auer deference.”). No less importantly, Clinchfield faced a different

question—whether “the award of pre-controversion attorney’s fees should depend on whether the

[Office of Workers’ Compensation], in its initial determination of benefits, accepts or denies the

claim.” Clinchfield, 149 F.3d at 310. Because the deputy commissioner never denied Day’s claim,

we need not decide that question.

Our colleague disputes this reading of § 928(a), noting that the “literal language” of the

subsection covers pre-controversion fees. But there is no more literal approach to statutory

interpretation than giving each word in a statute meaning—particularly a word like “thereafter” that

Congress conspicuously used four times in § 928. Yet under the dissent’s approach, “thereafter”

has no plausible role to play: If the employer declines to pay any compensation within the requisite

time and if the claimant obtains benefits, reasonable attorney’s fees must be awarded. “Thereafter”

adds a limitation to the statute under the dissent’s reading only if one is willing to assume that

Congress meant to prohibit fees for claimants who hired lawyers to handle their initial

(unsuccessful) claim and chose to litigate their later (successful) claim by themselves. The

government, quite understandably, does not say that is what Congress intended, and neither does the

dissent. One does not give a word independent meaning by hypothesizing an interpretation of a

statute that makes no sense, that no policy of the statute supports and that not an inkling of

legislative history reinforces.

Nor can we dispense with “thereafter” based on analogies to other fee-shifting statutes.

Statutes like § 1988 make fees permissible, not mandatory, and their one-sentence rules, see, e.g.,

42 U.S.C. § 1988(b) (“[T]he court, in its discretion, may allow the prevailing party . . . a reasonable

attorney’s fee . . . .”), offer no comparison to the detailed provisions of § 928. That these other

statutes permit pre-litigation fees provides no basis for doing so here.

The Black Lung Act also does not provide a meaningful analogy. Contrary to our

colleague’s suggestion, the Black Lung Act does not incorporate § 928 in its entirety. It says the

provisions of the Longshoremen’s Act shall apply to coal mine operators “except as otherwise

provided . . . by regulations of the Secretary.” 30 U.S.C. § 932(a). One exception concerns fees:

No. 06-4004 Day v. James Marine, Inc., et al. Page 7

The Secretary allows a black lung claimant to recover “reasonable fees for necessary services

performed prior to the creation of the adversarial relationship.” 20 C.F.R. § 725.367(a). The

Secretary has made no similar rule for Longshoremen cases.

The better analogy, it seems to us, is to § 928(a)’s neighbor—§ 928(b)—which does not

allow pre-dispute fees. Both subsections work together and provide in so many words—489 to be

exact—a comprehensive framework for when fees shall be awarded and for “all other cases” when

they “shall not be assessed against the employer.” These are rules, not standards. And these rules

offer two options. Step one: if the deputy commissioner cannot broker an agreement between the

claimant and employer over liability and if the claimant later establishes liability, then reasonable

fees “thereafter” incurred “in the successful prosecution of his claim” shall be awarded. Step two:

if the employer pays compensation without being ordered to, if a dispute later develops over the

“amount of additional compensation” due, if the employer declines to pay the amount of

compensation later recommended by the deputy or Board to resolve the dispute and if the employee

refuses the employer’s offer and “thereafter” uses an attorney at law in obtaining more compensation

than the employer offered, then “a reasonable attorney’s fee based solely upon the difference

between the amount awarded and the amount tendered . . . shall be awarded.”

Both subsections use “thereafter” in the same way, and both serve the alternative-dispute

resolution features of the 1972 amendments—to urge the employer and claimant to resolve their

disputes through the deputy or Board and, if not, to make the employer pay for legal services

“thereafter” incurred if the employee manages to win. In one setting, the employer spares itself the

risk of fees over liability if it agrees that liability exists within 30 days of receiving notice of the

claim. In the other setting, the employer spares itself the risk of fees over the amount of

compensation if it accepts the deputy’s or Board’s recommendation about the appropriate amount

of compensation within 14 days. The one deals with fees incurred after a dispute over liability; the

other deals with fees incurred after a dispute over the amount of compensation due. The salient

point is that neither permits fees incurred before the relevant dispute. No one in this case (or to our

knowledge in any other) disputes this reading of § 928(b). And the meaning of that provision

counsels in favor of adopting a parallel interpretation of § 928(a), not in favor of importing rules

from other fee-shifting statutes that bear no similarity to this one.

B.

Day also sought pre-controversion fees under § 928(b). But, as we have shown, that

subsection also contains a “thereafter” clause, indeed three “thereafter” clauses, which impose a

similar limitation. Day and the Director acknowledge that our interpretation of § 928(a)’s

“thereafter” clause controls our interpretation of § 928(b). Their position also fails for a separate

reason: “The language of subsection (b) plainly states that in order for fees to be assessed under its

terms there must be a written recommendation containing a suggested disposition of the

controversy.” Pittsburgh & Conneaut Dock Co., 473 F.3d at 266. Because the deputy commissioner

issued his first written recommendation on December 18, 2001, well after James Marine disputed

Day’s claim, pre-controversion fees cannot shift under this provision for that reason as well.

C.

Day also challenges the Board’s holding that he could not recover post-controversion fees

under § 928(a)—which is to say, fees incurred from the date of controversion through the successful

prosecution of his claim. Under § 928(a), as we have shown, once the employee meets the

conditions for fee shifting, the employer becomes liable for the claimant’s attorney’s fees incurred

“in the successful prosecution of his claim.” 33 U.S.C. § 928(a). Contrary to the Board’s initial

position and James Marine’s current position, nothing in § 928(a) indicates that the employer may

limit its fee-shifting liability by paying some—but not all—of the employee’s claim. As to these

No. 06-4004 Day v. James Marine, Inc., et al. Page 8

fees, Day satisfied all of § 928(a)’s conditions: (1) he filed a claim with the deputy commissioner;

(2) James Marine received written notice of Day’s claim from the deputy commissioner; and

(3) James Marine controverted that claim. See id. Because Day thereafter used an attorney in

successfully prosecuting his claim, he may recover those fees.

In the Board’s unpublished opinion in this case, it took a different view. An “[e]mployer’s

liability” under § 928(a), it held, “ceases on the date [it] pays benefits pursuant to the [deputy

commissioner’s] written recommendations”—regardless of whether the parties continue to dispute

liability—“and any fee liability . . . thereafter is governed by [§ 928(b)].” Since then, the Board has

changed course. In W.G. v. Marine Terminals Corp., 41 BRBS 13 (2007), a published opinion, the

Board held that “[p]ursuant to the plain language of Section [928(a)],” when an “employer d[oes]

not pay benefits to claimant within 30 days of its receipt of the claim from the [deputy

commissioner], its liability for an attorney’s fee for work involving all benefits due on the claim

must be determined pursuant to Section [928(a)].” Id. at *4 (emphasis added). As is true with Day,

Marine Terminals dealt with an employee who filed a claim seeking temporary and permanent

disability and held that “pursuit of [permanent disability] benefits . . . did not involve a new claim

but rather the permanent disability aspect of the previously filed claim.” Id. “Under these

circumstances,” the Board concluded, “Section [928(a)] must be applied to the entire claim.” Id.

We reach the same conclusion, one consistent with the tide of appellate authority. See Richardson

v. Cont’l Grain Co., 336 F.3d 1103, 1105 (9th Cir. 2003); Pool Co. v. Cooper, 274 F.3d 173, 186–87

(5th Cir. 2001); cf. Pittsburgh & Conneaut Dock Co., 473 F.3d at 263–64 (holding that the pursuit

of additional benefits after an initial payment is not a new “claim”); Va. Int’l Terminals, Inc. v.

Edwards, 398 F.3d 313, 316–17 (4th Cir. 2005) (same).

That James Marine voluntarily paid Day temporary total disability in October 2000, before

it received written notice of Day’s claim in October 2001, makes no difference. Even though James

Marine voluntarily paid Day some benefits before Day filed his claim, it declined to pay additional

benefits after it received written notice of Day’s claim, and that triggers § 928(a). See Richardson,

336 F.3d at 1105 (“Fees under subsection (a) are available even though the Company voluntarily

paid compensation before receiving notice of the claim. The relevant time period we look to for

determining whether the employer declined to pay compensation begins with receiving notice of the

claim and ends thirty days after.”) (alteration and internal quotation marks omitted); see also Va.

Int’l Terminals, 398 F.3d at 317–18; Pool Co., 274 F.3d at 186–87.

That James Marine paid Day some benefits after it controverted Day’s claim does not make

a difference either. The question is whether James Marine paid the claim during the 30-day window

after it received notice from the deputy commissioner and during which the Act gave it the option

to resolve or reject Day’s claim. Because James Marine did not pay the claim during this period,

Day may collect post-controversion fees under § 928(a).

III.

For these reasons, we affirm in part and reverse in part.

No. 06-4004 Day v. James Marine, Inc., et al. Page 9

_______________________________________________

CONCURRING IN PART, DISSENTING IN PART

_______________________________________________

ROGERS, Circuit Judge, dissenting. The literal language of § 928(a) provides for the award

of reasonable attorney’s fees in this case regardless of whether the fees were for representation

before or after “controversion.” While the provision for “reasonable fees” might be limited to fees

for court work but not work done at the claim-preparation level, such an argument has been

consistently rejected in numerous analogous contexts and it would be anomalous to accept such an

argument here. The only basis for coming to a different conclusion in this case is the limitation in

§ 928 on the award of any fees to cases in which the services of an attorney are utilized after the

employer has declined to pay within thirty days of notice of the claim. This limit, which gives full

meaning to the word “thereafter” in the statutory language, simply does not address the scope of the

fees awarded once the condition is met. To read more into the statutory language is the equivalent

of adding words that are not there. I therefore respectfully dissent from parts II.A and II.B of the

majority opinion, while I concur in the remainder of the majority opinion.

In relevant part, § 928(a) provides that

If the employer . . . declines to pay any compensation on or before the thirtieth day

after receiving written notice of a claim . . . 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 . . . a reasonable attorney’s fee . . .

in an amount approved by the deputy commissioner, Board, or court . . . which shall

be paid directly by the employer . . . to the attorney for the claimant.

33 U.S.C. § 928(a) (emphasis added). Thus, if: (1) the employer, after receiving notice, refuses to

pay compensation within thirty days, and (2) the employee subsequently uses an attorney’s services

in the successful prosecution of his claim, then (3) responsibility for “reasonable” fees shifts to the

employer. The “thereafter” clause thus makes the post-controversion use of legal services, like

employer refusal, a precondition to fee shifting. The “thereafter” clause does not, however, by its

terms act to limit the services for which fees may shift. The “thereafter” language is not even

located in the clause of § 928(a) addressing the type of fees awardable and the method of their

payment, which is found in the latter half of that subsection and similarly makes no mention of

temporal limitations. In fact, the only explicit restriction anywhere in § 928(a) on what fees may

be awarded is that they must be “reasonable.”

There is simply no way that the word “thereafter” has no meaning or effect under this

reading, or that it does not have its dictionary meaning of “after that.” Pre-controversion fees do not

shift unless the employer controverts its liability and “after that” the employee utilizes an attorney’s

services in the successful prosecution of his claim. WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 2372 (2002) (defining “thereafter” to mean “after that” or “from then on”).

There is, moreover, a perfectly logical rationale for reading the “thereafter” clause—as it is

written—as a precondition to any fee-shifting. If an employer decides to pay a claim within thirty

days, even when a lawyer worked to help present the claim, the employer does not have to pay the

attorney’s fees. This encourages employers to pay claims they are not sure of winning in court, and

thus serves as a powerful encouragement to pay promptly without litigation.

Absent reliance on the “thereafter” clause, § 928(a) would certainly be interpreted properly

to provide for pre-controversion fees, in light of the consistent court holdings regarding analogous

schemes for the provision of attorney’s fees. Like § 928, most federal fee-shifting statutes, such as

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the Equal Access to Justice Act and the Civil Rights Attorney’s Fees Awards Act of 1976, state only

that awards of attorney’s fees, where appropriate, must be “reasonable.” See 28 U.S.C. § 2412(b),

(d)(2)(A); 42 U.S.C. § 1988(b). The Supreme Court has explained that this language “[n]ormally

[permits recovery for] all hours reasonably expended on the litigation.” Hensley v. Eckerhart, 461

U.S. 424, 435 (1983) (interpreting § 1988). “Of course, some of the services performed before a

lawsuit is formally commenced . . . are performed ‘on the litigation.’” Webb v. Bd. of Educ. of Dyer

County, Tenn., 471 U.S. 234, 243 (1985) (interpreting § 1988). Thus, a “reasonable” fee award may

include money for tasks completed in anticipation of litigation if they were “both useful and of a

type ordinarily necessary to advance . . . the litigation.” Id. The Courts have accordingly permitted

awards of attorney’s fees for pre-litigation work under, for example, the Voting Rights Act, see

Watkins v. Fordice, 7 F.3d 453, 458 (5th Cir. 1993), the Alaska National Interest Lands

Conservation Act, Native Village of Quinhagak v. United States, 307 F.3d 1075, 1083 (9th Cir.

2002), the Equal Access to Justice Act, Pollgreen v. Morris 911 F.2d 527, 536 (11th Cir. 1990), the

Civil Rights Attorney’s Fees Awards Act of 1976, Perotti v. Seiter, 935 F.2d 761, 764 (6th Cir.

1991), and the Employee Retirement Income Security Act, Wright v. Hanna Steel Corp., 270 F.3d

1336, 1345 (11th Cir. 2001).

To preclude pre-controversion fees would be entirely anomalous and out of sync with all of

these cases unless the “thereafter” clause makes § 928 different. But the “thereafter” clause does

nothing of the sort, and it follows as a matter of pure statutory interpretation that pre-controversion

fees may be awarded.

Such awards are moreover supported by the policies underlying the Act, as the Director

persuasively asserts in this case. First, the availability of pre-controversion fee awards promotes the

swift resolution of compensation disputes. As the Supreme Court has observed, the main policy of

the Act is to “encourage the prompt and efficient administration of compensation claims.”

Rodriguez v. Compass Shipping Co., 451 U.S. 596, 612 (1981). Shifting pre-controversion fees

furthers this end by making it less cost-prohibitive for employees to obtain legal representation

during the claims-filing stage. When employees utilize the services of an attorney during this

period, they are able to develop their cases earlier and more fully. This, in turn, allows both parties

to assess the strength of the claim more accurately, enabling them to make better informed choices

and the dispute resolution process to proceed more efficiently. Where the employee does have a

meritorious compensation claim, it is advantageous for both parties to be aware of that early on in

the process. Armed with such knowledge, most employers will begin voluntarily paying

compensation, thereby avoiding costly adjudicatory proceedings and the shifting of attorney’s fees.

Employees, of course, will benefit in this situation by receiving compensation sooner, rather than

later. When a claim is without merit, on the other hand, it is likewise preferable for the parties to

be informed of that as soon as possible. Particularly from the employer’s standpoint, it is important

to know whether the employee’s claim is truly weak, or merely appears weak because the employee

does not have the legal training to properly present his claim. Without such knowledge, the

employer risks either paying compensation unnecessarily, or erroneously controverting the claim

and eventually incurring substantial costs and fees.

Second, along with promoting the efficient resolution of compensation disputes, the shifting

of pre-controversion fees prevents an employee’s recovery from being diminished by attorney’s fees.

Section 928 was “designed to ensure that an employee will recover the full amount of his statutory

benefits” and “will not have to reach into [those] benefits to pay for legal services, thus diminishing

the ultimate recovery.” Oilfield Safety & Mach. Specialties, Inc. v. Harman Unlimited, Inc., 625

F.2d 1248, 1257 (5th Cir. 1980); see also Bethenergy Mines, Inc. v. Dir., Office of Workers’ Comp.

Programs, 854 F.2d 632, 637 (3d Cir. 1998); Dir., Office of Workers’ Comp. Programs v. Simmons,

706 F.2d 481, 485 (4th Cir. 1983). If pre-controversion legal fees cannot be shifted, an employee’s

compensation will, for all practical purposes, necessarily be reduced in many cases.

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Further, awarding attorney’s fees for services performed during the claims-filing period is

consistent with the 1972 amendments to the Act, which streamlined the dispute resolution process.

It does appear that in passing these amendments, Congress was trying to reduce an employee’s need

for counsel during the claims-filing period by giving the Secretary a larger role in resolving

compensation disputes. Congress appears to have hoped that these changes would allow employees,

if they wished, to rely on the Secretary for advice. See H. Rep. No. 92-1441 (1972), as reprinted

in 1972 U.S.C.C.A.N. 4698, 4710 (expressing a desire that assistance from the Secretary would

“enable the employee to receive the maximum benefits due to him without having to rely on outside

assistance”). But Congress did not expect such aid from the Secretary always to be forthcoming;

the assistance of attorneys would thus often still be necessary. Although § 939 of the Act requires

the Secretary to provide employees with certain general information, it does not mandate that she

act as their lawyer. Under the terms of that section, the Secretary “shall” supply employees with

information concerning, for example, the scope of the Act’s coverage or the availability of

rehabilitation services. 33 U.S.C. § 939(c)(1). With respect to specific legal advice, however, § 939

states only that the Secretary “may, upon request, provide [employees] with legal assistance in

processing a claim.” Id. (emphasis added). The discretionary nature of legal assistance from the

Secretary is confirmed by the legislative history to the amendments, which states that “[t]he bill also

makes legal assistance in processing the claim for benefits . . . available in needy cases upon request

subject to the Secretary’s discretion.” H.R. Rep. 92-1441 (1972), as reprinted in 1972 U.S.C.C.A.N.

4698, 4710. Congress’s recognition that legal assistance would sometimes be needed, yet not

available from the Secretary, certainly allows the conclusion that Congress permitted the shifting

of pre-controversion fees.

Pre-controversion Secretarial assistance is also consistent with the availability of pre-

controversion fees in light of the risk that no fees will shift because the employer pays the claim

within the thirty days. Employees with a less than certain claim will obtain risk-free help in

processing their claim by turning to the Secretary in the first instance, and resorting to an attorney

only where the Secretary is unable to provide assistance.

Finally, the categorical exclusion of pre-controversion fees would require attorney’s fees to

be artificially divided based upon the time at which the underlying legal assistance was given. What

should be most relevant, however, is not the fortuity of when a service is performed, but whether

that service contributed to a successful outcome. Services are no less “useful” to the prosecution

of a claim simply because they are performed prior to an employer’s controversion.

While these many policy considerations are not controlling, they do confirm a

straightforward reading of § 928 to permit reasonable pre-controversion attorney’s fees as long as

the services of an attorney are utilized after the employer disputes its liability or simply does not pay

within the thirty-day post-notice period.

This conclusion is further bolstered by a certain amount of deference that we owe the

Director in the interpretation of the Act. Exactly as the Supreme Court held with respect to the

Director’s interpretation of a different provision of the same Act:

Our view, as it turns out, coincides on this point with the position taken by the

Director of the Office of Workers' Compensation Programs (OWCP), who is charged

with the administration of the Act, and who also construes the Act [the same way as

reasoned earlier in the opinion]. See Brief for Director, Office of Workers'

Compensation Programs 12-21, 24-31. The Secretary of Labor has delegated the bulk

of her statutory authority to administer and enforce the Act, including rule-making

power, to the Director, see Director, Office of Workers' Compensation Programs v.

Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 125-126 (1995); Ingalls

Shipbuilding, Inc. v. Director, Office of Workers' Compensation Programs, 519 U.S.

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248, 262-263, (1997), and the Director's reasonable interpretation of the Act brings

at least some added persuasive force to our conclusion, see, e.g., Skidmore v. Swift

& Co., 323 U.S. 134, 140 (1944) (giving weight to agency's persuasive

interpretation, even when agency lacks “power to control”); Robinson v. Shell Oil

Co., 519 U.S. 337, 345-346 (1997).

Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 136 (1997). It is true that the Director’s

interpretation has not been consistent over the years, see Childers v. Drummond Co., 2002 WL

32301637, at *4 (Ben. Rev. Bd. 2002), and this lessens the level of Skidmore deference somewhat.

See Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 143 (1976). But this inconsistency is not enough to

discount wholly the Director’s considered interpretation, id., and Skidmore deference thus brings

some added force to the conclusion that pre-controversion fees are permitted by § 928.

There is yet one more consideration in favor of interpreting §928 to permit pre-controversion

fees. Doing so ensures that identical sections of the Act and the Black Lung Act are interpreted in

the same manner. Pursuant to 30 U.S.C. § 932(a), the Black Lung Act incorporates § 928 in its

entirety. Normally, “when Congress uses the same language in two statutes having similar purposes

. . ., it is appropriate to presume that Congress intended that text to have the same meaning in both

statutes.” Smith v. City of Jackson, 544 U.S. 228, 233 (2005). Under the regulations to the Black

Lung Act, which are entitled to the more deferential Chevron deference, attorney’s fees payable

under that statute “shall include reasonable fees for necessary services performed prior to the

creation of the adversarial relationship.” 20 C.F.R. § 725.367(a). To give § 928 a different reading

under the Act would create an anomalous incongruence in the meaning of identical language in two

analogous statutory provisions.

For these reasons, reasonable pre-controversion fees are permitted by § 928(a). This

conclusion obviates the need to interpret § 928(b) in this case. I therefore respectfully dissent from

parts II.A and II.B of the majority opinion, although I join in the rest.