IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31396
Summary Calendar
JOHN E. PORTER
Plaintiff - Appellant
v.
ROBERT C KESSNER; ELTON JOHN BAIN; KESSNER, DUCA,
UMEMAYASHI, BAIN & MATSUNAGA; AIU NORTH AMERICAN; JAMES
CURREN; JOHNSON CONTROLS WORLD SERVICES; DYNCORP; INSURANCE
COMPANY OF THE STATE OF PENNSYLVANIA; OFFICE OF WORKERS
COMPENSATION PROGRAM, Director
Defendants - Appellees
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CV-1537
- - - - - - - - - -
July 27, 2001
Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit
Judges.
PER CURIAM:*
John E. Porter appeals the district court’s dismissal of his
complaint alleging that the settlement agreement reached under
the provisions of the Longshore and Harbor Workers’ Compensation
Act (LHWCA), as extended by the Defense Base Act, was procured
under duress, was inadequate as a matter of law, and was not
supported by substantial evidence. See 33 U.S.C. §901 et seq.;
42 U.S.C. § 1651 et seq. He also challenged the LHWCA’s attorney
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-31396
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fee provisions at 33 U.S.C. § 928 and alleged that the defendants
defamed him by filing false documents and information with the
FBI. The district court dismissed Porter’s complaint for lack of
subject-matter jurisdiction, concluded that the LHWCA did not
prohibit claimants from procuring counsel, and dismissed without
prejudice Porter’s state law claim for defamation.
On appeal, Porter argues that his challenge to the
settlement agreement has not been examined on its merits and that
the LHWCA’s attorney fee provisions severely limit his ability to
contract with counsel. Porter also challenges the district
court’s award of costs to the defendants pursuant to Fed. R. Civ.
P. 54(d)(1). Porter does not address in his brief the district
court’s decision not to exercise supplemental jurisdiction over
his state law claims. Thus, the issue is waived. See Carmon v.
Lubrizol Corp., 17 F.3d 791, 794 (5th Cir. 1994).
The district court properly dismissed Porter’s complaint for
lack of subject-matter jurisdiction. He settled his LHWCA claim
and sought review of the ALJ’s 33 U.S.C. § 908(i) settlement
order with the Benefits Review Board and the United States Court
of Appeals for the Ninth Circuit. The district court had no
jurisdiction under the LHWCA to review his settlement agreement
further. See 33 U.S.C. § 921; Fontenot v. AWI, Inc., 923 F.2d
1127, 1133 (5th Cir. 1991)(LHWCA provides the exclusive remedy
for workers within its scope). Likewise, his alleged inability
to obtain the services of an attorney under the LHWCA’s
provisions is not cognizable. Because the defendants prevailed,
the district court did not abuse its discretion when it granted
No. 00-31396
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costs to the defendants pursuant to Fed. R. Civ. P. 54(d)(1).
See Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 536
(5th Cir. 1999). Accordingly, the district court’s judgment is
AFFIRMED.