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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-60475
_______________
CLAUDE O. WEAVER,
Petitioner,
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondent,
VERSUS
INGALLS SHIPBUILDING, INC.,
Respondent.
_________________________
Petition for Review of an Order of
the Benefits Review Board
_________________________
February 26, 2002
Before JOLLY, SMITH, and BENAVIDES,
director. We reverse and remand.
Circuit Judges.
I.
JERRY E. SMITH, Circuit Judge:
On February 4, 1992, Weaver filed a claim
for hearing loss under the Longshore and Har-
Claude Weaver appeals a decision of the
bor Workers' Compensation Act ("LHWCA")
Benefits Review Board ("BRB") affirming an
against his former employer, Ingalls
award of attorney's fees by the district
Shipbuilding, Inc. ("Ingalls"), which

controverted the claim on February 11.1 On
The remaining $150, representing work done
February 12, Ingalls received formal notice of
after March 12, was assessed against Ingalls.
the claim from the district director. In
The BRB, sitting en banc, affirmed this
September, Ingalls initiated voluntary
decision but divided over the continued
payments on the claim and offered to settle;
validity of Liggett to LHWCA cases. Weaver
Weaver rejected this offer, and the case
and the director appeal this decision.
proceeded to a hearing before an administra-
tive law judge, who found in favor of Weaver
II.
but awarded him less than the settlement offer.
This case calls for an interpretation of the
fee-shifting provision of the LHWCA, which
Weaver's attorney then submitted an
reads in relevant part:
application for attorney's fees. The district
director denied the application because the
If the employer or carrier declines to pay
recovery was less than the proffered
any compensation on or before the
settlement. The BRB reversed and remanded,
thirtieth day after receiving written no-
finding Weaver was entitled to fees incurred
tice of a claim for compensation having
before Ingalls commenced voluntary payments
been filed from the deputy commission-
in September.
er, on the ground that there is no liability
for compensation . . . and the person
Before the director issued a revised fee
seeking benefits thereafter have utilized
award, Weaver's attorney filed an amended
the services of an attorney at law in the
application based on a recent change in the
successful prosecution of his claim,
interpretation of the fee-shifting provision of
there shall be awarded . . . a reasonable
the LHWCA.2 Under the new interpretation,
attorney's fee against the employer or
an attorney may recover, from the employer,
carrier.
fees incurred before formal notice of the claim.
33 U.S.C. � 928(a). Our review of statutory
The district director ruled on the amended
interpretation by the BRB is de novo.
fee application by awarding fees at $100 per
Equitable Equip. Co. v. Dir., OWCP, 191
hour and divided the fee between Ingalls and
F.3d 630, 631 (5th Cir. 1999) (citing Potomac
Weaver. The division held Weaver liable for
Elec. Power Co. v. Dir., OWCP, 449 U.S.
$290 in fees based on work done by his
268, 279 n.18 (1980)).
attorney before March 12, 1992, thirty days
after the receipt of formal notice by Ingalls.
Weaver and the director urge us to interpret
the word "thereafter" merely to signify that the
use of an attorney is a precondition to the as-
sessment of fees against the employer. This
1 Once an employer has notice of a claim, it has
interpretation would allow an attorney,
fourteen days in which either to pay or to
assuming the other conditions are met, to
controvert, to avoid a 10% penalty in addition to
recover fees from the employer regardless of
the award. 33 U.S.C. � 914(b),(d),(e).
when the attorney incurred the fees. Ingalls,
2 See Liggett v. Crescent City Marine Ways &
on the other hand, reads "thereafter" to mean
Dry Dock, 136 Ben. Rev. Bd. Serv. (MB) 135
that an attorney could recover only those fees
(1997).
2

incurred after the thirtieth day following the
Watkins dictates that the BRB's decision be
receipt of formal notice from the
affirmed insofar as it holds Weaver responsible
commissioner.
for those fees his attorney incurred before Feb-
ruary 12, 1992SSthe date Ingalls received for-
Our resolution of this question is largely
mal notice. Thus, those fees accrued between
controlled by precedent. In Watkins v. Ingalls
February 4 and February 12, 1992, cannot be
Shipbuilding, Inc., No. 93-4367 (5th Cir.
charged against Ingalls.
Dec. 9, 1993) (unpublished), we were asked to
interpret this same section of the LHWCA.
Watkins, though, answers only half of the
The claimant incurred attorney's fees over an
question. There remains the issue of those
eight-month period preceding receipt of formal
fees accrued between February 12,
notice by the employer. Interpreting the
1992SSwhen Ingalls both had received formal
statute, we held that receipt of notice by the
notice and had controverted the claimSSand
employer was a prerequisite to the recovery of
March 12 1992SSthe thirtieth day following
attorney's fees. Thus, any fees incurred before
receipt of notice. The district director
receipt of such notice could not be charged
assessed the fees accrued during this period
against the employer.
against Weaver. The three judges on the BRB
who voted to affirm the award did so without
Watkins binds this panel. Tigner v. Cock-
specific mention of the fees for this thirty-day
rell, 264 F.3d 521, 526 (5th Cir. 2001) (noting
period.
rule that one panel may not overrule an earlier
panel). Accordingly, we cannot adopt the po-
This question is also a matter of statutory
sition advanced by Weaver and the director to
interpret ation. The fee-shifting provision of
charge all attorney's fees of a successful
the LHWCA contemplates four triggering
claimant against the employer. The fact that
events for assessing fees against the employer:
Watkins is unpublished does not alter its pre-
(1) formal notice, (2) employer controversion
cedential status, because it was decided before
of the claim, (3) successful prosecution by the
January 1, 1996. 5TH CIR. R. 47.5.3.3
claimant, and (4) use of an attorney to
prosecute the claim.
3 Although this rule is framed to limit citations
The wording of the controversion clause
to unpublished opinions ("normally . . . cited only
leaves little doubt an employer can be liable for
when the doctrine of res judicata, collateral estop-
fees incurred during the thirty-day window if
pel or law of the case is applicable"), it has been
the other conditions are met. The disjunctive
interpreted to render unpublished decisions before
"or" merely indicates that the employer's act
January 1, 1996, precedential. Of all the cases cit-
of declining to pay the claim may be triggered,
ing this rule, only one interprets the "normally"
either on the thirtieth day or at any time before
clause of the rule to limit citations of pre-January
1, 1996, unpublished opinions as precedent to the
specifically enumerated exceptions to the rule. Ar-
nold v. United States Dep't of Interior, 213 F.3d
3(...continued)
193, 196 n.4 (5th Cir. 2000), cert. denied, 531
fective date precedential. See, e.g., Baldwin v.
U.S. 1144 (2001). All other references treat the
Daniels, 250 F.3d 943, 946 n.** (5th Cir. 2001);
rule as making unpublished decisions before the ef-
United States v. Flanagan, 87 F.3d 121, 124 (5th
(continued...)
Cir. 1996).
3

that day, by a controversion of the claim.
Our court apparently has not addressed this
precise question. This interpretation, though,
has been endorsed by the BRB. Jones v.
Chesapeake & Potomac Tel. Co., 11 Ben.
Rev. Bd. Serv. 7 (1979).4
We hereby adopt the position of the BRB
and conclude that fees incurred within the
thirty-day window may be assessed against the
employer. If the employer controverts a claim
within the thirty-day window, and the other
triggers have been satisfied, the fees accrued
thereafter properly may be assessed against the
employer, even though they are incurred be-
fore the thirtieth day following receipt of
notice.
The order of the BRB is REVERSED and
REMANDED for recalculation of the fee
award.
4 See also Liggett (explaining the state of the
rule before Jackson v. Jewell Ridge Coal Co., 21
Black Lung Rep. 1-27 (1997)). Employers also
frequently behave as though this is the rule. See,
e.g., Kemp v. Newport News Shipbuilding & Dry
Dock Co., 805 F.2d 1152, 1152 (4th Cir. 1986) (in
which employer implicitly conceded liability for
fees accrued post-controversion but within the
thirty-day window by appealing only those fees
accrued before controversion).
4