Opposition Brief — Darby v. Ingalls Shipbuilding, Inc.

No. 99-1029

In The

Supreme Court of the United States

¢

RENE M. DARBY,

Petitioner,

versus

INGALLS SHIPBUILDING, INC., AND DIRECTOR,

OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, U.S. DEPARTMENT OF LABOR,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

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BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

6

RICHARD P. SALLOUM, WituraM J. Powers, Jr.

Counsel of Record Chief Counsel of Litton

Pau. B. Howeti Ship Systems

FRANKE, RAINEY & SALLOUM, Robert J. ARIATTI, JR.

PLLC Associate Division Counsel

Attorneys at Law INGALLS SHIPBUILDING, INc.

Post Office Drawer 460 Post Office Box 149

2605 Fourteenth Street Pascagoula, MS 39568-0149

Gulfport, MS 39502-0460 228-935-3912

st licindses Of Counsel for Petitioners

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

3EST AVAILABLE

QUESTIONS PRESENTED

1. Did the Fifth Circuit properly reject a Petition for

Rehearing En Banc from a ruling on a non-dispositive

motion for attorney fees?

2. Did the Fifth Circuit err in denying attorney fees

under § 28(b) of the LHWCA for claimant’s unsuccessful

prosecution of a claim for an injury, even though claimant

subsequently achieved partial success on a separate claim

for a later aggravation of the injury?

3. Did the denial of attorney fees constitute an

impermissible interference with claimant's right to coun-

sel?

il

LIST OF PARTIES

The parties to this matter are the following:

‘.

r B

3.

Rene M. Darby, Petitioner

Blewett W. Thomas, Counsel for Petitioner

Ingalls Shipbuilding, Inc., which is a subsidiary

of Litton Industries, Inc., Respondent

Director of the Office of Workers’ Compensation

Programs, Federal Respondent

TABLE OF CONTENTS

Page

CUEING PERSENTED.... «2.250. 050665.5.0055:-

TAMAR OE COBITIIIS «ooo ose cies evan ee ii

MO BETIEI i i eigihnc co iv

a se eae er ss 1

Ta RR is eI tl RETARD 3

eee CO 8s | 5 ih ae AE ETE 4

STATEMENT OF THE CASE..............005000005 4

PMR 5k icy os eet Siemens ' 7

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Pia ) } Se a rer ares tree ree Resp. App. 1

iv

TABLE OF AUTHORITIES

Page

Cases CITED:

Alaska Pipeline Service Co. v. Wilderness Society, 421

Oh, AO CAO) «2 25 4 Ruaiias wi agate tna ena 12

Asherman v. Meachum, 957 F.2d 978 (2d Cir. 1992)..... 9

Butera v. Apfel, 173 F.3d 1049 (7th Cir. 1999)......... 10

Cafeteria & Restaurant Workers Union Local 473,

AFL-CIO v. McElroy, 284 F.2d 173 (D.C. Cir.

| Pere Nee rey ey Pr erie ret en Pre nye 9

Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685 (5th

CM TPE ks eR RKC e oes RR ek eeKd eee eee 1

Ferrer. 0. Hobby, 306: U.S. 1035 (R992) «ok ssc cseek dae 13

Ford Aerospace & Communication Corp. v. Boling,

GOA P25 GOP COG) Cit SOR gcd ccna cee vues 12

General Dynamics Corp. v. Horrigan, 848 F.2d 321

(1st Cir. 1988), cert. denied, 488 U.S. 992 (1988) .... 13

Hensley v. Eckerhart, 461 U.S. 424, 76 L.Ed. 2d 40,

Mie SAA. Be CEO 4s 55k cede encees 13, 14, 15, 16

Hole v. Miami Shipyards Corp., 640 F.2d 769 (5th Cir.

NOMAD Ss cca cackssduie ol nn scans Gia abae eee er eaeD 2 &

In re Air Crash Disaster Near New Orleans, LA on

July 9, 1982, 821 F.2d 1147 (5th Cir. 1987)......... 10

Independent Stevedore Co. v. O'Leary, 357 F.2d 812

A | Perr rey ye ra en grrr yy pertt en 14

Krakoff v. United States, 431 F.2d 847 (6th Cir. 1970) .... 10

Martin v. Heckler, 773 F.2d 1145 (11th Cir. 1985)...... 9

Vv

TABLE OF AUTHORITIES - Continued

Page

Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121,

117 S.Ct. 1953, 138 L.Ed. 2d 327 (1997) ............ 2

Murphy v. Honeywell, Inc., 20 BRBS 68 (1986)..... 13, 20

Strachan Shipping Co. v. Nash, 782 F.2d 513 (5th Cir.

ODD i ive ck kcrsa eae ncn ee 14, 20

The George Hyman Const. Co. v. Brooks, 963 F.2d

4532 (D.C. Cit. 19GE) 6 neo. s'co cn aces etnced nas 33, 15, 17

U.S. Industries/Federal Sheet Metal v. Director,

OWCP, 455 U.S. 608 (1982) ......0cccccccscscceces 15

United States Dept. of Labor v. Triplett, 108 L.Ed. 2d

701, 494 U.S. 715, 110 S.Ct. 1428 (1990) ........ 18, 19

Universal Terminal Stevedoring Corp. v. Parker, 587

F.2d 608 (Grd: Cir. 1978). ....00 0 cece cece sercosssees 12

Walters v. National Assn. of Radiation Survivors, 473

US. 303 C196). ices. ah Re eee 17, 18

Wells v. International Great Lakes Shipping Co., 693

F.2d 663 (7th Cir. 1982)... 5... cc ccccccccccecccces 9

Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968)...14, 20

Yeiser v. Deisart, 267 U.S. 540, 45 S.Ct. 399, 69 L.Ed.

79S CDOS). cocks canes cscackenmite ae 18

STATUTES CITED:

2 SC. 6 SD) 3 a ee 3

$3 Us, 0.00 oc cemsas cs ae eee 4

$3: USC. § S0Me)i ici .uss caret ae 4,5

33 USC. 6 9000)... ....5) eek 4,17

33 U.S.C. § SOB(C) .06. cc cee ee eweet ek eee eeeeecss 15

TABLE OF AUTHORITIES - Continued

Page

33 USC. § SRG) i ei tee ee 3

33 UGA. © DOGG) ic icc an ceven ceases siabaeseetwsaees 5

33. U.S.C. © SEA) aces os de ctsacnviseddinsesatanwenraes 5

33 USC. § SZ M aes as swecncidancsacusuanosiaseeeas 15

33 USC. © SRG ss feeb ons fa eens ees Re A, i7

33 UGA. & SEB oi KAS ioe seee ce eeaas teweeers 11

33 USC. § FRO) os osc cceweuds caus cdasaeeerens passim

33 US. & SONG ais tvniv'es cal cerge eaten 12, 15

33 USA. § GE oc cacvcicctdectdvans cuuuccusateeas 17

Civil Rights Attorney’s Fees Award Act of 1976, 42

USA. § T9GGs cc nc cncuskwensas san ele pee ene enue. 13

Rutes CITED:

FRAP 26 o.oo cncctscnsuengsqcantaae steerer eee 15

PRAP. 36. ..0.<00sascunenvensseanenanse seen eee 11

FRAP A5CO) «i <nos'sdy be ues 6ucecnncanie ek sen tase 8

PRAP 470D) . oscccngsesatans tans ieustens eee 8

Local Rule DOA. ook cdsdcsceas bar case nen 9

Supreme Court Bult 10205. 06005 i Ss eiiensiecitaswns 11

OTHER:

20 C.ER. § 7OZ:132. (2908) osc cces s Sheree ae eece yr RY Ys

20 C-RR. § 702.1393 (A900) sis asa seein rece 17

20 C.ER. § 702.134(b) (1985) ...........-- if Dae eee 17

OPINIONS BELOW

On March 31, 1992, an administrative law judge of

the U.S. Department of Labor awarded Rene Darby

(Darby) limited temporary compensation and compensa-

tion for a scheduled injury to his arm resulting from an

accident on September 24, 1987, while Darby was

employed by Ingalls. The administrative law judge also

awarded Darby’s attorney an attorney’s fee for the suc-

cessful prosecutions of those issues.1 Darby also sought

compensation claiming he was permanently totally dis-

abled from such accident.2 The administrative law judge

denied his claim for permanent total benefits. Darby

appealed the denial of his permanent total claim. On

February 24, 1995, the Benefits Review Board affirmed the

denial. The Board also denied Darby’s Motion for Recon-

sideration on November 22, 1995. Darby then appealed to

the U.S. Court of Appeals for the Fifth Circuit. On

November 13, 1996, the Fifth Circuit affirmed the Board’s

decision in part and vacated and remanded in part. Darby

v. Ingalls Shipbuilding, Inc., 99 F.3d 685 (Sth Cir. 1996).

Petitioner’s Appendix A-6 — A-13.3 On April 30, 1998, the

administrative law judge entered his order on remand,

denying Darby’s claim for additional compensation bene-

fits for the 1987 injury. Id., A-14 - A-62. However, the

administrative law judge had also consolidated Darby’s

1 Such fee was paid by Ingalls.

2 Darby also claimed a neck injury from the September 24,

1987, accident.

3 Hereinafter “Pet. App.” Respondent’s Appendix will be

cited as “Resp. App.” and cites to Employer’s Exhibits will be

cited as “EX.”

claim on remand with his claim for a separate injury

which had later occurred at Ingalls on May 8, 1992. Id.,

A-40.4 Darby’s attorney achieved partial success on the

claim against Ingalls for the May 8, 1992, injury (the

second claim), and Darby was awarded some continuing

compensation and an attorney fee for that accident. How-

ever, Darby filed a Motion for Reconsideration seeking

nominal continuing benefits for the injury of September

24, 1987 (the first claim), so that the statute of limitations

would remain open as to that claim. See Metropolitan

Stevedore Co. v. Rambo, 521 U.S. 121, 117 S.Ct. 1953, 138

L.Ed. 2d 327 (1997). On July 17, 1998, the administrative

law judge denied his request for reconsideration.

Darby’s attorney next filed a motion for attorney fees

for his unsuccessful appeals to the Benefits Review Board

and the Fifth Circuit in connection with the September 24,

1987, accident. On June 11, 1999, a panel of the Fifth

Circuit denied such motion. Id., A-1. On July 13, 1999, the

panel likewise denied a motion for reconsideration of the

denial of attorney fees. Id., A-2. Darby’s attorney next

attempted to file a petition for rehearing en banc with

respect to the attorney fee issue, but the petition was

returned by the Fifth Circuit clerk because there is no

provision for filing an en banc petition from a non-dispos-

itive order. Resp. App. 1. Thereafter, Darby’s attorney

filed a motion for the clerk to accept his en banc petition.

On August 19, 1999, the Fifth Circuit denied the motion.

Pet. App. A-3.

4 Claimant had filed a separate claim for the injury on

September 6, 1996. See Employer’s Exhibit 39.

The Benefits Review Board also denied Darby’s

motion for attorney fees on May 24, 1999. On August 20,

1999, the Board denied Darby’s motion for reconsidera-

tion on the attorney fee issue. Id., A-68 — A-72. Darby

appealed to the Fifth Circuit. Ingalls moved to dismiss

the appeal since the Fifth Circuit had already denied

Darby’s claim for fees in connection with his unsuccessful

appeal of the September 24, 1987, claim. On December 2,

1999, the Fifth Circuit dismissed Darby’s appeal as frivo-

lous. Id., A-4 — A-5.

It is from the Fifth Circuit’s denial of attorney fees,

the Fifth Circuit’s dismissal of the appeal of the denial of

attorney fees by the Benefits Review Board, and the Fifth

Circuit's rejection of his petition for rehearing en banc that

Darby seeks a writ of certiorari from this Court.

¢

JURISDICTION

The orders of the Fifth Circuit denying attorney fees

in this case were entered on June 11, 1999, and July 13,

1999. Id., A-1 — A-2. The Fifth Circuit orders denying en

banc consideration of the ruling on the non-dispositive

attorney fee motion were entered on August 2, 1999, and

August 19, 1999. Id., A-3; Resp. App. 1. The Fifth Circuit

order summarily dismissing the appeal of the Benefits

Review Board’s denial of fees was entered on December

2, 1999. Pet. App. A-4 - A-5. Jurisdiction of this Court to

review the decisions of the Court of Appeals for the Fifth

Circuit is conferred by 28 U.S.C. § 1254(1).

S

STATUTES INVOLVED

This case involves an interpretation of the Longshore

and Harbor Workers’ Compensation Act (hereinafter

“LHWCA”), 33 U.S.C. § 901 et seq. The specific statute

which is pertinent to this matter is 33 U.S.C. § 928(b).

Resp. App. 2.

This case also involves a procedural issue in connec-

tion with Rule 35 of the Federal Rules of Appellate Pro-

cedure and the Fifth Circuit Local Rules with respect to a

rehearing en banc.

STATEMENT OF THE CASE

Darby was employed as a joiner for Ingalls. On Sep-

tember 24, 1987, he sustained a neck and elbow injury

while employed with Ingalls. He was eventually released

by his treating physicians with a 15% disability to the arm

and permanent limitations due to the cervical condition

which prevented him from performing his regular duties.

Ingalls accommodated his limitations by placing him in a

modified joiner position which paid his regular wage.

Notwithstanding his satisfactory performance of the

modified job and his receipt of his regular wage, Darby

pursued a claim for permanent total disability benefits

pursuant to § 908(a) of the LHWCA. He also sought

compensation for the scheduled injury to his arm. He

continued performing the modified job at his regular

wage from October 29, 1990, until the trial on October 2,

1991. Following the trial, the administrative law judge

awarded Darby limited additional compensation for tem-

porary disability pursuant to 33 U.S.C. § 908(b) and a

scheduled award for the arm injury pursuant to 33 U.S.C.

§ 908(c)(1). However, he denied Darby’s claim for perma-

nent total disability pursuant to 33 U.S.C. § 908(a), since

he found that the modified job provided to Darby was

suitable, necessary, permanent, and that his post injury

wages exceeded his earnings at the time of injury. The

judge also awarded an attorney fee pursuant to 33 U.S.C.

§ 928(b) for Darby’s attorney’s successful pursuit of the

claim at that level. The additional benefits and attorney

fee awarded by the administrative law judge were duly

paid by Ingalls. EX 31, p. 2.

Darby appealed the denial of permanent total disabil-

ity to the Benefits Review Board pursuant to 33 U.S.C.

§ 921(b), asserting that he was totally disabled from the

September 24, 1987, accident despite the fact that he was

working regularly. The Benefits Review Board affirmed

the denial. Darby subsequently appealed the Board’s

decision to the Fifth Circuit. Attorney fees were not an

issue in such appeal. On November 13, 1996, the Fifth

Circuit affirmed in part and remanded in part for the

administrative law judge to make a limited determination

as to whether Darby’s post injury earnings fairly and

reasonably represented his wage earning capacity pur-

suant to 33 U.S.C. § 908(h). Pet. App. A-6 — A-13.

On remand, the administrative law judge found that

Darby’s earnings did fairly and reasonably represent his

wage earning capacity and therefore denied any further

compensation for the accident of September 24, 1987. Id.,

A-40 — A-44. However, to avoid “needless delay .. . ,” the

administrative law judge consolidated the “relatively

minor issue” on remand with a separate claim of Darby

arising out of an accident which had occurred on May 8,

1992, while he was performing the modified work. Id.,

A-40. In his order of April 30, 1998, the administrative

law judge found that although Darby was not entitled to

any additional benefits for the accident of September 24,

1987, he was entitled to permanent partial disability ben-

efits for the accident of May 8, 1992. Id., A-61.

Darby’s attorney filed a motion for reconsideration of

the denial of additional compensation for the accident of

September 24, 1987. On July 17, 1998, the administrative

law judge denied the motion and stated that although no

additional compensation was awarded for the September

24, 1987, accident, Darby did receive compensation for

the “separate and distinct” injury of May 8, 1992, which

was an aggravation of the prior September 24, 1987,

injury. Id., A-64.

Darby seized upon the administrative law judge’s

award of additional compensation for the May 8, 1992,

accident, and filed a motion for attorney’s fees for time

spent on his unsuccessful appeals in regard to his Sep-

tember 24, 1987, accident. On June 11, 1999, the Fifth

Circuit denied the claim for attorney fees surrounding the

1987 accident. Id., A-1. On July 13, 1999, the Fifth Circuit

likewise denied Darby’s motion for reconsideration of the

denial of attorney fees. Id., A-2. Darby filed a petition for

rehearing en banc. The petition was returned to Darby by

the clerk since there is no provision for en banc review

from a non-dispositive order. Resp. App. 1. Darby then

filed a motion for leave to file a petition for rehearing en

banc which was denied by the Fifth Circuiton August 19,

1999. Pet. App. A-3.

Similar to the Fifth Circuit, the Benefits Review Board

also denied Darby’s claim for attorney fees on May 24,

1999. On August 20, 1999, the Board also denied Darby’s

motion for reconsideration citing the Fifth Circuit’s denial

of fees at that level. These orders were appealed to the

Fifth Circuit. Id., A-68 — A-72. On December 2, 1999, the

Fifth Circuit dismissed Darby’s appeal as frivolous, since

it had previously found that his attorney was not entitled

to similar fees. Id., A-4 — A-5.

It is from the Fifth Circuit’s denial of attorney fees,

the Fifth Circuit’s refusal to re-hear the motion for attor-

ney fees en banc, and the Fifth Circuit’s dismissal of the

appeal of the Board’s order denying fees that Darby seeks

a writ of certiorari.

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ARGUMENT FOR DENYING PETITION

FOR WRIT OF CERTIORARI

2

DID THE FIFTH CIRCUIT PROPERLY REJECT A PETI-

TION FOR REHEARING EN BANC FROM A RULING

ON A NON-DISPOSITIVE MOTION FOR ATTORNEY

FEES?

Initially, Darby argues that the Fifth Circuit erred in

rejecting his petition for rehearing en banc on the attorney

fee issue. He contends that the Fifth Circuit did not have

discretion to reject his petition, which deals with a non-

dispositive issue. However, neither Rule 35 of the Federal

Rules of Appellate Procedure nor the local rules of the

Fifth Circuit regarding Rule 35 afford any procedure for

seeking rehearing en banc under such circumstances. The

Fifth Circuit considers such an attempt by Darby as not

rising to the level of exceptional importance as to justify

en banc review by the entire Fifth Circuit. Resp. App. 1;

Pet. App. A-3.

To be clear, the Fifth Circuit may regulate its practice

in any manner consistent with federal law, the Federal

Rules of Appellate Procedure, and the local rules of the

circuit. FRAP 47(b). The procedural rulings of the Fifth

Circuit in this case is fully in accordance with Rule 35 of

the Federal Rules of Appellate Procedure, the Local Rules

of the Fifth Circuit, and federal case law. Rule 35 provides

in pertinent part as follows:

An en banc hearing or rehearing is not

favored and ordinarily will not be ordered

unless:

(1) en banc consideration is necessary to

secure or maintain uniformity of the court’s

decisions; or

(2) the proceeding involves a question of

exceptional importance.

FRAP 35(a).

Likewise, the Fifth Circuit’s local rules provide as

follows:

Caution. Counsel are reminded that in every

case the duty of counsel is fully discharged

without filing a petition for rehearing en banc

unless the case meets the rigid standards of

Federal Rules of Appellate Procedure 35(a). As

is noted in Federal Rule of Appellate Procedure

35, en banc hearing or rehearing is not favored.

Among the reasons is that each request for en

banc consideration must be studied by every

active judge of the court and is a serious call on

limited judicial resources.

Local Rule 35.1.

It is obvious that en banc consideration of a one-page

unpublished summary denial of attorney fees in this case

was not necessary to maintain the uniformity of the deci-

sions of the Fifth Circuit. Likewise, the denial is not a

question of exceptional importance. The denial does not

even affect Darby’s entitlement to benefits, since compen-

sation was paid to him by Ingalls apart from the attorney

fee issue. Wells v. International Great Lakes Shipping Co.,

693 F.2d 663, 666 (7th Cir. 1982).

There is also no conflict in the circuits. In fact, the

circuits are unanimous. In their view, en banc consider-

ation of a case is reserved for only the most exceptional of

circumstances and it defies logic that the denial of an

attorney’s fee to a claimant’s attorney in a garden variety

LHWCA case would justify such extraordinary use of

judicial resources. The District of Columbia Court has

noted that the power of a court of appeals to rehear a case

en banc should be exercised sparingly. Cafeteria & Restau-

rant Workers Union Local 473, AFL-CIO v. McElroy, 284

F.2d 173 (D.C. Cir. 1960). The Second Circuit has noted

that en banc reconsideration is a cumbersome procedure

that should not be used more extensively than is neces-

sary and useful. Asherman v. Meachum, 957 F.2d 978 (2d

Cir. 1992). The Eleventh Circuit has concluded that a

court of appeals should not rule en banc on issues which

do not clearly merit consideration. Martin v. Heckler, 773

F.2d 1145 (11th Cir. 1985). The Fifth Circuit has ruled that

en banc review is reserved for only the most important

10

federal issues and is prompted by the need for a defini-

tive statement on the law by the full court. In re Air Crash

Disaster Near New Orleans, LA on July 9, 1982, 821 F.2d

1147 (5th Cir. 1987).

In a case closely on point, the Sixth Circuit has held

that en banc hearings are ordered only on appeals or other

proceedings on the merits and not on preliminary

motions. Krakoff v. United States, 431 F.2d 847 (6th Cir.

1970). Specifically, in Krakoff, the appellant filed a motion

for oral argument before that Court en banc on a prelimi-

nary matter which was the subject of another motion.°®

Similarly, in Butera v. Apfel, 173 F.3d 1049 (7th Cir. 1999),

the Seventh Circuit noted that the court of appeals is not

obligated to reconsider an issue that has previously been

resolved before a motions panel of the court. Accordingly,

the Fifth Circuit in the present case was not obligated to

accept a petition for rehearing en banc of the panel’s

denial of a non dispositive post-judgment motion for

attorney fees, which had already been considered and

reconsidered by the panel.

Darby argues that the ruling on his motion for attor-

ney fees was a dispositive ruling which may be the sub-

ject of en banc consideration. Fo the contrary, his

entitlement to attorney fees was not an issue when he

appealed to the Fifth Circuit or when the Fifth Circuit

rendered its decision on the merits in 1996. Pet. App. A-6

- A-13. Moreover, Darby cannot seriously argue that his

motion for attorney fees was dispositive, since the ruling

> There is no logical! distinction between a non dispositive

preliminary motion and a non dispositive post judgment motion

such as we have in the present case.

—

11

on the fees did not resolve the underlying case on the

merits. To the contrary, it was the underlying ruling on

the merits, as supplemented by the decision on remand,

which prompted the filing of the motion for fees. Accord-

ingly, there is no logical basis for Darby’s assertion that

the denial of his attorney fees was a dispositive ruling on

the merits which would entitle him to en banc rehearing.

Finally, Darby has failed to present any compelling

reason, as required by Supreme Court Rule 10, for grant-

ing a writ of certiorari in this case. The rulings of the

Fifth Circuit are consistent with Rule 35 of the Federal

Rules of Appellate Procedure and the corresponding

Local Rules of the Fifth Circuit. Moreover, there is no

conflict in the circuits on this point and the issue is

neither necessary to maintain uniformity of the circuits’

decisions nor is it a question of exceptional importance.

II.

DID THE FIFTH CIRCUIT ERR IN DENYING ATTOR-

NEY FEES UNDER § 28(b) OF THE LHWCA FOR

CLAIMANT’S UNSUCCESSFUL PROSECUTION OF A

CLAIM FOR AN INJURY EVEN THOUGH CLAIMANT

SUBSEQUENTLY ACHIEVED PARTIAL SUCCESS ON

A SEPARATE CLAIM FOR A LATER AGGRAVATION

OF THE INJURY?

The LHWCA provides that an employer is responsi-

ble for the claimant’s attorney’s fees where the claimant

utilizes the services of an attorney who is successful in

the prosecution of his claim. 33 U.S.C. § 928. Section 28(a)

is applicable where the employer has paid no compensa-

tion at all. 33 U.S.C. § 928(a). Section 28(b) is applicable

12

where, as here, the employer has paid some benefits and

the claimant seeks additional benefits. 33 U.S.C. § 928(b).

In order to be successful under § 28(b), the claimant's

attorney must be successful in obtaining greater compen-

sation than the amount previously paid by the employer.

33 U.S.C. § 928(b); Universal Terminal and Stevedoring Corp.

v. Parker, 587 F.2d 608 (3rd Cir. 1978). Additionally, the

Act states as follows:

If the claimant is successful in review proceed-

ings 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 reason-

able 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.

33 U.S.C. § 928(b).

A claimant’s attorney is entitled to separately peti-

tion for an employer-paid fee for work performed before

the Benefits Review Board and the court of appeals when

his appeal has been successful in obtaining greater bene-

fits. 33 U.S.C. § 928(c); 20 C.F.R. § 702.132 (1985); Ford

Aerospace & Communication Corp. v. Boling, 684 F.2d 640

(9th Cir. 1982). The intent behind the award of attorney

fees in the LHWCA is to assess attorney fee liability on an

employer only when the claimant is ultimately successful

on the claim. Alaska Pipeline Service Co. v. Wilderness Soci-

ety, 421 U.S. 240, 262 (1975); Hole v. Miami Shipyards Corp.,

640 F.2d 769 (5th Cir. 1981). A determination of whether

the claim is ultimately successful may require the resolu-

tion of an issue on remand before the determination as to

13

success can be made. Hole, 640 F.2d at 774; Murphy v.

Honeywell, Inc., 20 BRBS 68 (1986).

Upon conclusion of the remand proceedings, Darby’s

attorney in the case at bar submitted a fee petition to the

Fifth Circuit asserting that since the 1987 injury was

“irrevocably intertwined” with the 1992 injury, then he is

entitled to recover for time spent on his unsuccessful

appeals in connection with the 1987 injury. He cites to

this Court’s decision in Hensley v. Eckerhart, 461 U.S. 424,

103 S.Ct. 1933, 76 L.Ed. 2d 40 (1983), regarding the test for

awarding attorney fees under the Civil Rights Attorney’s

Fees Award Act of 1976, 42 U.S.C. § 1988. The Hensley test

has also been utilized in cases involving attorney fees

under the LHWCA. See The George Hyman Const. Co. v.

Brooks, 963 F.2d 1532 (D.C. Cir. 1992); General Dynamics

Corp. v. Horrigan, 848 F.2d 321 (1st Cir. 1988), cert. denied,

488 U.S. 992 (1988). The test under the Hexsley case for

determining a reasonable fee is (1) did the claimant's

unsuccessful claims relate to the claims on which he was

successful; and (2) did the claimant succeed at a level that

makes the hours reasonably expended a satisfactory basis

for a fee award. 461 U.S. at 434.

However, the Hensley test is only applied after the

claimant has prevailed. 461 U.S. at 433. See also Farrar v.

Hobby, 506 U.S. 103 (1992). The LHWCA reflects that to

prevail, the attorney must be successful in obtaining

additional compensation. 33 U.S.C. § 928(b). In the case at

bar, Darby was unsuccessful in his appeals to the Benefits

14

Review Board and the Fifth Circuit in connection with the

1987 injury. Id., A-42 - A-44.¢

Darby did sustain a second injury on May 8, 1992,

which resulted in increased work limitations. Although

the 1992 injury was an aggravation of the 1987 injury, the

aggravation of a prior injury constitutes a new injury

making the entire resulting disability compensable.

Strachan Shipping Co. v. Nash, 782 F.2d 513 (5th Cir. 1986);

Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968); Indepen-

dent Stevedore Co. v. O'Leary, 357 F.2d 812 (9th Cir. 1966).

In other words, but for the 1992 injury, Darby would not

have been awarded any additional compensation. More-

over, the mere fact that the 1992 injury incorporated the

first injury does not mean that the claim based on the

1987 injury alone incorporated the second injury.

Even if the Hensley test is applicable, it is contrary to

Darby’s position. Hensley notes that “where the plaintiff

failed to prevail on a claim that is distinct in all re ots

from his successful claims, the hours spent on the unsuc-

cessful claim should be excluded in considering the

amount of a reasonable fee.” 461 U.S. at 440. In distin-

guishing an unrelated claim from a related claim, this

Court suggested that a related claim will involve a com-

mon core of facts, be based upon related legal theories,

counsel’s time will be devoted to the litigation as a

whole, and it will be difficult to divide the fees on a

6 It is only the fees before the Benefits Review Board and

the Fifth Circuit which are at issue here. Ingalls paid Darby’s

attorney’s fees for time incurred before the administrative law

judge. EX 31, p.2.

15

claim-by-claim basis. 461 U.S. at 435. None of the forego-

ing is true in this case. First, the facts presented to the

Benefits Review Board and the Fifth Circuit did not

include any facts concerning the 1992 injury, which

occurred after the record was closed with respect to the

1987 injury claim. Moreover, Ingalls was not required to

defend any claim before the Benefits Review Board and

the Fifth Circuit other than the claim which was made for

the 1987 injury. U.S. Industries/Federal Sheet Metal v. Direc-

tor, OWCP, 455 U.S. 608, 614 (1982). Second, the legal

issues presented in the claim for permanent total disabil-

ity for the 1987 injury are readily distinguishable from

those presented in pursuing compensation for the 1992

injury, which was based upon the aggravation of a pre-

existing condition. Third, the time of Darby’s attorney

before the Board and the Fifth Circuit was not devoted to

the litigation as a whole. Instead, it was limited to pursu-

ing an unsuccessful appeal based on that record in con-

nection with the 1987 injury alone. 33 U.S.C. § 928(c); 33

U.S.C. § 921(b)(3); FRAP 16. Fourth, the time expended by

opposing counsel on the claim for the 1987 injury is easily

separable from the time expended on the 1992 claim,

since all of the time before the Benefits Review Board and

the Fifth Circuit is limited to the record made solely in

connection with the 1987 injury.

In The George Hyman Construction Co. v. Brooks, 963

F.2d 1532 (D.C. Cir. 1992), the D.C. Circuit ruled that an

unsuccessful claim for permanent total disability pur-

suant to § 908(a) is distinct from a claim for a scheduled

award pursuant to § 908(c). 963 F.2d at 1540. In denying

fees incurred on the unsuccessful issue, the D.C. Circuit

noted that the claims were based on different factual and

16

legal theories despite the fact that they arose out of the

same accidental injury. 963 F.2d at 1540. Accordingly,

Darby’s unsuccessful pursuit of a claim for a different

injury based upon different factual and legal theories

would surely qualify as a distinct and unrelated claim.

In Hensley this Court noted that “the congressional

intent to limit awards to prevailing parties requires that

these unrelated claims be treated as if they had been

raised in separate lawsuits, and therefore no fee may be

awarded for services on the unsuccessful claim.” 461 U.S.

at 435. The foregoing is the exact situation in the case at

bar. The claim for the 1987 injury, which was filed on

November 8, 1988, was a totally separate claim from the

claim filed nearly eight years later for the 1992 injury. See

EX 9, EX 39.

Darby failed to prevail on his appeal with respect to

the 1987 claim, which was separate and distinct from his

1992 claim. The mere fact that the injuries were interre-

lated, since the second injury was an aggravation of the

first, does not change the fact that the claims were sepa-

rate and distinct. In fact, the administrative law judge

specifically noted in both his Decision and Order Award-

ing Compensation Benefits and his Order Denying Claim-

ant’s Motion for Reconsideration that the claims were

separate and distinct, and this finding was never

appealed. Pet. App. A-15, A-40, A-58, A-64.

17

III.

DID THE DENIAL OF ATTORNEY FEES CONSTITUTE

AN IMPERMISSIBLE INTERFERENCE WITH CLAIM-

ANT’S RIGHT TO COUNSEL?

The LHWCA provides that a claimant has a right to

an attorney. 33 U.S.C. § 928; 20 C.F.R. § 702.131 (1985).

Further, the Act provides that if the claimant is successful

in obtaining greater benefits than those previously paid,

then the claimant is entitled to have his attorney fees paid

by the employer. 33 U.S.C. § 928(b); 20 C.F.R. § 702.134(b)

(1985); The George Hyman Const. Co. v. Brooks, 963 F.2d

1532, 1536 (D.C. Cir. 1992). If the claimant is successful in

review proceedings, he may separately apply to the Bene-

fits Review Board or to the Court for the award of an

attorney fee for the time incurred before them. 33 U.S.C.

§ 928(b). In all other cases, the claim for attorney fees is

not assessed against the employer or carrier. Id.; 20 C.F.R.

§ 702.133 (1985). The LHWCA also incorporates, however,

a provision that prohibits an attorney from receiving a fee

unless approved by the appropriate agency or court. 33

U.S.C. § 928(e). Basically, Darby argues that the denial of

attorney fees for the separate pursuit of unsuccessful

claims which are subsequently consolidated with claims

upon which the claimant is partially successful and

receives a fee, will drive competent counsel away. Ini-

tially, Darby’s petition overlooks the heavy presumption

of constitutionality which is accorded the Congress in

enacting the LHWCA. Walters v. National Assn. of Radia-

tion Survivors, 473 U.S. 305, 319 (1985). One challenging

the law must make an extraordinary showing of proba-

bility of loss of competent counsel under the present

18

system. Id. at 326. Darby has failed to make such a

showing.

In United States Dept. of Labor v. Triplett, 494 U.S. 715,

110 S.Ct. 1428, 108 L.Ed. 2d 701 (1990), this Court held

that a similar challenge to the attorney fee award provi-

sions of the LHWCA failed to rebut the heavy presump-

tion of constitutionality. Specifically, in Triplett, an

attorney challenged the constitutionality of the attorney

fee provision of the Lorgshore Act which is applicable to

black lung claimants, since it deprived claimants of legal

assistance in the prosecution of their claims. In upholding

the constitutionality of the attorney fee provision of the

LHWCA, the Court noted as follows:

The government pursues an obvious and legiti-

mate interest through the current regime. The

regulation of attorneys fees payable by claim-

ants themselves is designed to protect claimants

from their “improvident contracts, in the inter-

est not only of themselves and their families but

of their public.” Yeiser v. Deisart, 267 U.S. 540,

541, 45 S.Ct. 399, 400, 69 L.Ed. 775 (1925)

(upholding similar state limitation). When fees

are payable by persons other than the claimants,

as Congress has provided, regulation is

designed to assure fairness to the employer, car-

rier, or trust fund, and to protect those sources

from a depletion that would leave other claim-

ants without a source of compensation.

494 U.S. at 722.

Moreover, this Court noted in Triplett that the claim-

ant has a substantial burden to prove that’limitations on

the award of attorney fees make attorneys unavailable to

19

claimants. Specifically, the Court required that the claim-

ant prove that (1) claimants could not obtain representa-

tion and (2) that the inability to obtain representation was

due to the attorney fee provision of the Act. 494 U.S. at

722. In Triplett, the Court held that the testimony of three

lawyers that the current system discourages attorneys

' from practicing under the Act was held insufficient to

meet the burden of proof. 494 U.S. at 723-24. Without

question, the naked allegations in Darby’s petition are

insufficient to challenge the constitutionality of the attor-

ney fee provisions of the LHWCA.

Darby has not had any problem in obtaining counsel.

In fact, he obtained the same attorney who pursued his

1987 claim to pursue his 1992 claim. His attorney was

duly awarded a fee by the administrative law judge for

his partial success on the 1992 claim and that fee is not in

issue. He was also awarded a fee for his pursuit of the

1987 claim before the administrative law judge and that

fee was paid by Ingalls. It is only the fee for his unsuc-

cessful appeals to the Benefits Review Board and the Fifth

Circuit with respect to the 1987 accident which is at issue

here.

Darby asserts that the denial of fees for an “irrevoca-

bly intertwined” claim would deprive similarly situated

claimants of the right to counsel. However, the claim for

the 1987 injury was separate and distinct from the claim

for the 1992 injury. His partial success in the 1992 claim,

for which his attorney has already been awarded attorney

fees, did not rely upon his unsuccessful appeals in con-

nection with the 1987 claim. To the contrary, a claim

based upon an aggravation compensates the entire result-

ing disability without regard to the compensability of the

20

underlying condition. Wheatley v. Adler, 407 F.2d 307 (D.C.

Cir. 1968). Additionally, where there are two work related

injuries, as here, and the second injury aggravates the

first, then the second injury becomes the compensable

injury. Strachan Shipping Co. v. Nash, 782 F.2d 513 (5th Cir.

1986). Moreover, the incorrect assumption of Darby’s

attorney that he had an ethical obligation to pursue the

unsuccessful appeals with respect to the 1987 accident

before he could pursue the successful claim for the 1992

accident does not justify the award of attorney fees. Mur-

phy v. Honeywell, Inc., 20 BRBS 68, 71 (1986).

Attorney fees are payable for assisting claimants in

recovering additional compensation, not for filing frivo-

lous appeals. Darby’s attorney has already been awarded

all the attorney fees to which he is entitled. His petition is

without any legal or factual basis.

*

21

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

RICHARD P. SALLOUM

(Counsel of Record)

Paut B. Howe.

FRANKE, RAINEY & SALLOUM, PLLC

Attorneys at Law

2605 Fourteenth Street

Post Office Box 460

Gulfport, MS 39502

228-868-7070

Counsel for Petitioners

WILLiAM J. Powers, JR.

Chief Counsel of Litton Ship

Systems

Rosert J. ARIATTI, JR.

Associate Division Counsel

Ingalls Shipbuilding, Inc.

Post Office Box 149

Pascagoula, MS 39568-0149

228-935-3912

Of Counsel for Petitioners

Dated: January 14, 2000

Resp. App. 1

RESPONDENT’S APPENDIX 1

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

CHARLES R. FULBRUGE III TEL. 504-589-6514

CLERK 600 CAMP STREET

NEW ORLEANS, LA 70130

August 2, 1999

Mr. Blewett William Thomas

7115 Dubies Drive

San Antonio, TX 78216

No. 96-60029 Darby v. Ingalls Shipbuilding USDC

No. BRB #92-1547

Dear Mr. Thomas:

We are in receipt of your petition for en banc determina-

tion in regard to the above referenced case. In light of

there be no provision in the rules from the filing of an en

banc petition from a non-dispositive order, your petition

is being returned to you unfiled.

Sincerely,

CHARLES R. FULBRUGE III,

Clerk

By: /s/ L. Adams

L. Adams, Deputy Clerk

cc: Mr. Paul B. Howell

Mr. Mark Ambrose Reinhalter

Resp. App. 2

RESPONDENT’S APPENDIX 2

(b) If the employer or carrier pays or tenders pay-

ment of the compensation without an award pursuant to

section 14(a) and (b) of this Act, and thereafter a contro-

versy develops over the amount of additional compensa-

tion, 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 writ-

ing a disposition of the controversy. 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 pay-

ment or tender of compensation, and thereafter utilizes

the services of an attorney at law, and if the compensa-

tion 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 compensa-

tion. The foregoing sentence shall not apply if the contro-

versy relates to degree or length of disability, and if the

employer or carrier offers to submit the case for evalua-

tion by physicians employed or selected by the Secretary,

as authorized in Section 7(e) and offers to tender an

amount of compensation based upon the degree of 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

Ratna hapa ci VCRs <=

Resp. App. 3

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.

33 U.S.C. § 928(b)