Dyer v. Owcp ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REX DYER, 
Petitioner,
v. No. 07-73549
CENEX HARVEST STATES  OWCP No.
07-0164
COOPERATIVE; DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION OPINION
PROGRAMS,
Respondents.

On Petition for Review of an Order of the
Office of Workers’ Compensation Programs
Argued and Submitted
November 17, 2008—Portland, Oregon
Filed May 1, 2009
Before: William A. Fletcher and Raymond C. Fisher, Circuit
Judges, and John M. Roll, District Judge.1
Opinion by Judge William A. Fletcher
1
The Honorable John M. Roll, United States District Judge for the Dis-
trict of Arizona, sitting by designation.
5107
5110 DYER v. CENEX HARVEST STATES
COUNSEL
Charles Robinowitz, Portland, Oregon, Joshua Thomas Gille-
lan II (argued), LONGSHORE CLAIMANTS’ NATIONAL
LAW CENTER, Washington, DC, for the petitioner.
John Randall Dudrey (argued), WILLIAMS FREDRICK-
SON, Portland, Oregon; Michael Niss, Mark A. Reinhalter,
DYER v. CENEX HARVEST STATES 5111
Rita Ann Roppolo, US DEPARTMENT OF LABOR, Wash-
ington, DC, Thomas Shepard, BENEFITS REVIEW BOARD,
Washington, DC, Karen P. Staats, OWCP LONGSHORE
AND HARBOR WORKERS PROGRAMS, Seattle, Wash-
ington, for the respondents.
OPINION
W. FLETCHER, Circuit Judge:
Rex Dyer prevailed in a workers’ compensation claim
under the Longshore and Harbor Workers’ Compensation Act
(“LHWCA”). Dyer then sought attorney’s fees pursuant to
Section 28(a) of the LHWCA, 33 U.S.C. § 928(a). The Bene-
fits Review Board (“BRB”) held that Dyer was entitled to
recover only those attorney’s fees incurred after his employer,
Cenex Harvest States Cooperative (“Cenex”), refused to pay
his claim. The BRB held that Dyer was not entitled to recover
attorney’s fees for the period between his injury and Cenex’s
refusal. In the jargon of this area of the law, the BRB allowed
attorney’s fees for the “post-controversion” period but denied
fees for the “pre-controversion” period. In addition, the BRB
affirmed the District Director’s reduction of Dyer’s lawyer’s
requested hourly rate from $350 to $235. Dyer petitions for
review in this court.
We hold that Dyer is entitled to both pre- and post-
controversion attorney’s fees. We do not decide the proper
hourly rate for Dyer’s attorney. We vacate and remand to the
BRB so that it may decide that question under the principles
we recently articulated in Christensen v. Stevedoring Services
of America, 557 F.3d 1049 (9th Cir. 2009), and Van Skike v.
Director, OWCP, 557 F.3d 1041 (9th Cir. 2009).
I. Factual and Procedural Background
On May 3, 2005, Dyer filed a claim for hearing loss under
the LHWCA against Cenex and its workers’ compensation
5112 DYER v. CENEX HARVEST STATES
insurance carrier, Liberty Mutual Insurance Company. See 33
U.S.C. § 908(c)(13). On June 23, 2005, Cenex received notice
of Dyer’s claim. On June 30, 2005, Cenex contested — or
“controverted” — liability and refused to pay. On June 27,
2006, the parties entered into a settlement agreement under
which Dyer was awarded a settlement of $33,497.57. The set-
tlement provided that Dyer’s attorney was entitled to reason-
able attorney’s fees and costs under the LHWCA. An
Administrative Law Judge from the Office of Workers’ Com-
pensation Programs (“OWCP”) approved the agreement.
On July 26, 2006, Dyer’s attorney submitted an application
for attorney’s fees to the OWCP. He sought fees from January
31, 2005, when he first began representing Dyer, through July
10, 2006, the date of the fee request. Cenex objected to paying
attorney’s fees incurred prior to June 30, 2005, the date of
controversion. The OWCP’s District Director ruled in favor
of Cenex. The BRB affirmed in an unpublished order, holding
that 33 U.S.C. § 928(a) authorizes payment of attorney’s fees
only for services performed after controversion.
We heard oral argument on Dyer’s petition for review on
November 17, 2008. After argument, we requested that the
Director of OWCP file a brief advising us of his position on
pre-controversion attorney’s fees under § 928(a). The Director
has now filed a brief, and the parties have had an opportunity
to respond.
II. Standard of Review
We review the BRB’s rulings “for errors of law and adher-
ence to the substantial evidence standard.” Hurston v. Dir.,
OWCP, 989 F.2d 1547, 1548 (9th Cir. 1993) (internal quota-
tion marks omitted). Because the BRB is not a policy-making
body, we give no special deference to its interpretations of the
LHWCA. See Potomac Elec. Power Co. v. Dir., OWCP, 449
U.S. 268, 278 n.18 (1980). However, we “accord ‘consider-
able weight’ to the construction of the [LHWCA] urged by
DYER v. CENEX HARVEST STATES 5113
the Director of the Office of Workers’ Compensation Pro-
grams, as he is charged with administering it.” Hunt v. Dir.,
OWCP, 999 F.2d 419, 421 (9th Cir. 1993). “Where the rele-
vant statute or statutes are ‘easily susceptible to the Director’s
interpretation, we need go no further.’ ” Id.III. Discussion
A. Legal Background
[1] The LHWCA, 33 U.S.C. §§ 901-950, was enacted in
1927 to provide “compensation for employees injured while
working on the navigable waters or adjoining land areas of the
United States.” Day v. James Marine, Inc., 518 F.3d 411, 414
(6th Cir. 2008). As originally enacted, the LHWCA followed
the American rule on attorney’s fees, which requires litigants
to pay their own attorney’s fees whether they win or lose. See
id.; Dir., OWCP v. Robertson, 625 F.2d 873, 876-77 (9th Cir.
1980). In 1972, the LHWCA was amended to provide that
under certain circumstances employers must pay “a reason-
able attorney’s fee” to a successful claimant. 33 U.S.C. § 928.
[2] The LHWCA provides that a successful claimant is
entitled to recover attorney’s fees from his or her employer in
two situations: (1) when the employer denies liability out-
right, id. § 928(a); and (2) when the employer accepts liability
and pays or tenders some compensation, but a controversy
develops over additional compensation, id. § 928(b). Dyer
seeks attorney’s fees under § 928(a).
Section 928(a) provides for attorney’s fees as follows:
If the employer or carrier declines to pay any com-
pensation on or before the thirtieth day after receiv-
ing 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
5114 DYER v. CENEX HARVEST STATES
seeking benefits shall thereafter have utilized the
services of an attorney at law in the successful prose-
cution of his claim, there shall be awarded, in addi-
tion to the award of compensation, in a
compensation order, a reasonable attorney’s fee
against the employer[.]
(emphasis added).
Section 928(b) provides in part:
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 contro-
versy develops over the amount of additional com-
pensation, [and if the deputy commissioner or Board
recommends additional compensation, the employer
shall pay or tender that additional amount.] 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 there-
after awarded is greater than the amount paid or ten-
dered by the employer or carrier, a reasonable
attorney’s fee based solely upon the difference
between the amount awarded and the amount ten-
dered or paid shall be awarded in addition to the
amount of compensation.
(emphasis added).
Section 928(d) provides in part:
The amounts awarded against an employer or carrier
as attorney’s fees, costs, fees and mileage for wit-
nesses shall not in any respect affect or diminish the
compensation payable under this chapter.
DYER v. CENEX HARVEST STATES 5115
Regulations implementing § 928, promulgated by the
Director of OWCP, essentially repeat the statutory language.
See 20 C.F.R. § 702.134.
[3] The attorney’s fees provisions of the LHWCA have
been incorporated into the Black Lung Benefits Act
(“BLBA”), 30 U.S.C. §§ 901-944. See 30 U.S.C. § 932(a)
(incorporating 33 U.S.C. § 928). The Secretary of Labor has
broad discretion under the BLBA to depart from the LHWCA
by promulgating BLBA-specific regulations. See id. That dis-
cretion has been delegated to the Director of OWCP. In 2000,
the Director of OWCP promulgated regulations under the
BLBA that explicitly provide that a prevailing claimant is
entitled to pre-controversion attorney’s fees. See 20 C.F.R.
§ 725.367.
B. Discussion
Section 928(a) imposes four conditions that must be satis-
fied in order to receive attorney’s fees: (1) the claimant must
file a claim with the Deputy Commissioner of OWCP; (2) the
employer must receive notice of the claim from the Deputy
Commissioner; (3) the employer must decline to pay compen-
sation or not respond within 30 days; and (4) the claimant
must “thereafter” utilize the services of an attorney to prose-
cute his claim. Day, 518 F.3d at 414. The parties agree with-
out qualification that Dyer has met the first three conditions.
[4] The parties also agree that Dyer has met the fourth con-
dition, in that Cenex “declined to pay compensation” and that
Dyer “thereafter” employed an attorney. But they disagree as
to the amount of attorney’s fees Dyer is entitled to recover.
The source of their dispute, and the issue in this case, is the
meaning of “thereafter” in § 928(a).
Dyer contends that the word “thereafter” requires only that
he have employed an attorney after Cenex declined to pay.
Once that condition was satisfied, Dyer contends, he became
5116 DYER v. CENEX HARVEST STATES
entitled to all reasonable fees paid to that attorney in connec-
tion with the prosecution of his claim. Cenex contends, how-
ever, that the word “thereafter” operates in two ways. First,
Cenex contends (and Dyer agrees) that it requires that Dyer
have employed an attorney after Cenex declined to pay. Sec-
ond, Cenex contends that it limits the amount of attorney’s
fees to services performed after Cenex declined to pay.
For the reasons that follow, we hold that “thereafter” means
only that the claimant must employ an attorney after the
employer declines to pay the claim. That is, we hold that a
successful claimant is entitled to both pre- and post-
controversion attorney’s fees.
“The starting point for our interpretation of a statute is
always its language.” Tahara v. Matson Terminals, Inc., 511
F.3d 950, 953 (9th Cir. 2007) (internal quotation marks omit-
ted). To determine the meaning of statutory language, we con-
sider “the language itself, the specific context in which that
language is used, and the broader context of the statute as a
whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).
In addition, the “purpose of a statute may also provide guid-
ance in determining the plain meaning of its provisions.” Wil-
derness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051,
1060 (9th Cir. 2003) (en banc).
[5] “[U]nless otherwise defined, words will be interpreted
as taking their ordinary, contemporary, common meaning.”
Id. (internal quotation marks omitted). “Thereafter” is not
defined in the LHWCA. The dictionary definition of “thereaf-
ter” is “after that” or “from then on.” Webster’s Third New
International Dictionary 2372 (2002). In our view, the most
natural reading of “thereafter,” as used in § 928(a), is that it
requires only that the claimant show that he or she employed
an attorney after the employer declined to pay a claim. Our
reading does not render “thereafter” superfluous, for it
requires that an employer have declined to pay a claim and
that the claimant thereafter have used an attorney. Bosley
DYER v. CENEX HARVEST STATES 5117
Med. Inst., Inc. v. Kremer, 403 F.3d 672, 681 (9th Cir. 2005)
(“We try to avoid, where possible, an interpretation of a stat-
ute ‘that renders any part of it superfluous and does not give
effect to all of the words used by Congress.’ ”). It is possible
to read “thereafter” as also limiting the amount of fees to
post-controversion services, but that would be, in our view, a
somewhat strained reading.
[6] Section 928(a) limits attorney’s fees to a “reasonable”
fee. A “reasonable” attorney’s fee is not defined in the
LHWCA. We know of no other attorney’s fees-shifting statu-
tory scheme in which that term has been interpreted to impart
a temporal limitation. See, e.g., City of Burlington v. Dague,
505 U.S. 557, 561-67 (1992); Webb v. Bd. of Ed. of Dyer
County, 471 U.S. 234, 243 (1985); Anderson v. Dir., OWCP,
91 F.3d 1322, 1324-25 (9th Cir. 1996).
[7] Under § 928(b), attorney’s fees must, in addition to
being reasonable, be based “solely upon the difference
between the amount awarded and the amount tendered or
paid.” This explicit limitation is evidence that when Congress
wanted to limit attorney’s fees in the LHWCA beyond the
well-known standard of “a reasonable attorney’s fee,” it did
so explicitly. Given this, it would be unreasonable to conclude
that the word “thereafter” in § 928(a) reflects a choice by
Congress implicitly to impose a temporal limitation on attor-
ney’s fees.
[8] Our interpretation is reinforced by the admonition in
§ 928(d) that “[t]he amounts awarded against an employer . . .
as attorney’s fees . . . shall not in any respect affect or dimin-
ish the compensation payable under this chapter.” While
§ 928(d) does not directly control our reading of the word
“thereafter” in § 928(a), it clearly expresses a preference that
a claimant receive the full amount of his or her award, undi-
minished by attorney’s fees. Declining to require the
employer to pay pre-controversion attorney’s fees requires the
claimant to pay those fees, thereby diminishing the compensa-
5118 DYER v. CENEX HARVEST STATES
tion the claimant obtained. We have previously stated that the
LHWCA has “beneficent purposes and [a] humanitarian
nature.” Matulic v. Dir., OWCP, 154 F.3d 1052, 1055 (9th
Cir. 1998) (internal quotation marks omitted). “All doubts are
to be construed in favor of the employee in accordance with
the remedial purposes of the [LHWCA].’ ” Id. (internal quota-
tion marks omitted).
[9] That the Secretary of Labor may provide some form of
legal assistance to a claimant does not affect our analysis. The
LHWCA provides only that the Secretary may provide legal
assistance to those claimants who request it. See 33 U.S.C.
§ 939(c)(1). The LHWCA plainly contemplates that some
claimants will need legal assistance that will not be provided
by the Secretary. See Liggett v. Cresent City Marine Ways &
Drydock Co., 1997 WL 692212, 136 Ben. Rev. Bd. Serv.
(MB) 135 (1997) (“Thus, in the case where a claimant is not
accorded legal assistance, and the procedure for initiating and
investigating a claim may be beyond a claimant’s capabilities,
pre-controversion assistance of counsel may indeed be ‘rea-
sonable and necessary’ for the prosecution of a claim in a
given case.”). The Supreme Court wrote in Director, OWCP
v. Newport News Shipbuilding & Dry Dock Co., 514 U.S.
122, 132 (1995), “To be sure, [the Secretary of Labor] has
discretion under § 939(c) to provide ‘legal assistance in pro-
cessing a claim’ if it is requested (a provision that is perhaps
of little consequence, since the Act provides attorney’s fees to
successful claimants, see § 928).”
[10] We know that “[i]n adopting § [9]28(a), Congress
sought . . . to provide an incentive for employers to pay valid
claims rather than contest them.” Hunt, 999 F.2d at 424. If a
claimant is entitled only to those attorney’s fees incurred after
he or she has filed a claim and the employer has declined to
pay it, there will be an incentive for claimants not to employ
an attorney until after the employer has rejected his or her
claim. This delay would impede the sensible and efficient
administration of the LHWCA. If a claim is badly prepared
DYER v. CENEX HARVEST STATES 5119
because of the claimant’s failure to employ an attorney, the
employer may deny what ultimately proves to be a valid
claim. In that event, both the employee and the employer will
suffer. The employee will suffer because payment of his valid
workers’ compensation claim will be delayed. The employer
will suffer because it will have to pay attorney’s fees. (Recall
that an employee is not entitled to any attorney’s fees unless
the employer fails to pay a claim.) This analysis is particularly
applicable to claims like the hearing loss claim at issue in this
case. Where the injury is not obvious and traumatic but
instead requires testing and documentation to prove its exis-
tence and/or degree, the assistance of an attorney may be criti-
cal to assembling enough information to allow the employer
to make an informed decision about the claim.
[11] In his brief to us, the Director of OWCP states that he
has consistently interpreted the word “thereafter” in § 928(a)
of the LHWCA as we would interpret it. This puts the inter-
pretation of the word beyond any possible doubt, given the
deference we owe to his interpretation of the LHWCA. See
Healy Tibbitts Builders, Inc. v. Dir., OWCP, 444 F.3d 1095,
1098 (9th Cir. 2006); Hunt, 999 F.2d at 421; see also Auer v.
Robbins, 519 U.S. 452, 462 (1997) (deferring to Secretary of
Labor’s position as advanced in an amicus brief before the
Court and rejecting the proposition that deference is not owed
to a litigation position because “[t]here [was] simply no rea-
son to suspect that the interpretation does not reflect the agen-
cy’s fair and considered judgment on the matter in question”).
[12] The BRB’s position in this case conflicts with that of
the Director of OWCP. The BRB agrees with Cenex that the
word “thereafter” in § 928(a) limits the award of attorney’s
fees to those that were incurred post-controversion. But the
BRB has been inconsistent in its interpretation of the word.
Between 1979 and 1997, the BRB interpreted “thereafter” as
it interprets that word today. See Jones v. Chesapeake &
Potomac Tel. Co., 11 Ben. Rev. Bd. Serv. 7 (1979). The BRB
changed course in 1997, holding that a successful claimant is
5120 DYER v. CENEX HARVEST STATES
entitled to both pre- and post-controversion attorney’s fees
under § 928(a). See Liggett, 1997 WL 692212. The BRB then
changed course again in 2002, reverting to its previous inter-
pretation. See Childers v. Drummond Co., 2002 WL
32301637, Ben. Rev. Bd. No. 01-0585 (2002). We owe defer-
ence to interpretations of the LHWCA by the Director of
OWCP, but not by the BRB. Potomac Elec. Power Co., 449
U.S. at 278 n.18; McDonald v. Dir., OWCP, 897 F.2d 1510,
1511-12 (9th Cir. 1990) (explaining the respective roles of the
BRB and the Director of OWCP). But even if we did owe def-
erence to the BRB, its inconsistent positions over the past
thirty years would necessarily diminish that deference.
[13] We decline to follow the decisions of our sister circuits
that have adopted an interpretation of “thereafter” contrary to
the interpretation we adopt today. In Day, the Sixth Circuit
held, in a 2-1 decision, that § 928(a) authorizes only post-
controversion attorney’s fees. 518 F.3d at 419. We agree with
Judge Rogers, who explained in dissent that the most logical
reading of “thereafter” is simply that to succeed a claimant
must have used the services of an attorney after the employer
controverted the claim. Id. at 421-25 (Rogers, J., dissenting).
The Fifth Circuit has also held that § 928(a) authorizes only
post-controversion attorney’s fees. In Watkins v. Ingalls Ship-
building, Inc., 12 F.3d 209, 1993 WL 530243, (5th Cir. 1993),
the court wrote in an unpublished decision without analysis
that authorization of pre-controversion attorney’s fees would
require “rewrit[ing] the statute.” Id. at *1. The Fifth Circuit
then addressed the issue in a published opinion in Weaver v.
Ingalls Shipbuilding, Inc., 282 F.3d 357 (5th Cir. 2002).
Despite the submission of a brief by the Director of OWCP
setting forth his position that § 928(a) authorizes both pre-
and post-controversion attorney’s fees, the court held that it
was bound by its holding in Watkins. 282 F.3d at 359.
At one point, the Fourth Circuit appeared to agree with the
Fifth and Sixth Circuits. In Kemp v. Newport News Shipbuild-
DYER v. CENEX HARVEST STATES 5121
ing & Dry Dock Co., 805 F.2d 1152, 1153 (4th Cir. 1986), it
held that a claimant is not entitled under § 928(a) to pre-
controversion attorney’s fees, but it predicated its decision on
deference to the BRB’s then-current interpretation of the sec-
tion. As we noted above, federal courts do not owe deference
to the BRB’s interpretations. See Potomac Elec. Power Co.,
449 U.S. at 278 n.18. In Clinchfield Coal Co. v. Harris, 149
F.3d 307 (4th Cir. 1998), the Fourth Circuit may have recog-
nized its error. Clinchfield Coal involved a claim under the
BLBA. As noted above, the BLBA incorporates the attorney’s
fees provision of the LHWCA. See 30 U.S.C. § 932(a). The
court gave deference to the interpretation of the BLBA by the
Director of OWCP and noted that it did not owe deference to
an interpretation by the BRB. Clinchfield Coal, 149 F.3d at
309. The Director of OWCP has since withdrawn the interpre-
tation of the BLBA that OWCP advanced in Clinchfield Coal.
It has now promulgated regulations explicitly providing that
successful BLBA claimants are entitled to both pre- and post-
controversion attorney’s fees, bringing its interpretation into
line with its interpretation in LHWCA cases. See Rules and
Regulations, Dep’t of Labor, 65 Fed. Reg. 79920 (Dec. 20,
2000); 20 C.F.R. § 725.367.
Conclusion
[14] We hold, in agreement with the Director of OWCP,
that Dyer is entitled to both pre- and post-controversion attor-
ney’s fees under § 928(a). We vacate and remand to the BRB
for further proceedings consistent with this opinion.
Petition for Review GRANTED. Decision on availability of
pre- and post-controversion attorney’s fees REVERSED.
Decision on proper hourly rate VACATED and
REMANDED. Costs on appeal to Petitioner.