Joseph Albe v. DOWCP

Case: 14-60617 Document: 00513009818 Page: 1 Date Filed: 04/17/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 14-60617 United States Court of Appeals
Summary Calendar Fifth Circuit

FILED
April 17, 2015
JOSEPH G. ALBE, Lyle W. Cayce
Clerk
Petitioner

v.

DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR;
HUNTINGTON INGALLS, INCORPORATED,
formerly known as Northrop Grumman
Shipbuilding, Incorporated,

Respondents

________________________

Petition for Review of an Order
of the Benefits Review Board
BRB No. 14-0015
________________________

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
This is an appeal from an adverse Benefits Review Board decision by a
longshoreman’s attorney to recover fees owed by his client directly from the
employer pursuant to the Longshore and Harbor Workers’ Compensation Act,

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
 Case: 14-60617 Document: 00513009818 Page: 2 Date Filed: 04/17/2015

No. 14-60617
33 U.S.C. § 928(c). Previously, this court upheld the denial of employer-paid
attorneys’ fees pursuant to 33 U.S.C. § 928(a) or (b). See Simmons v. Dir.,
OWCP, U.S. Dep’t of Labor, 509 F. App’x 337 (5th Cir. 2013).
Albe’s new claim stems from his contention that in addition to an
approved fee contract with his client Simmons, he had a lien on the
compensation benefits, and the employer became obliged to deduct fees from
its payments to Simmons (who unfortunately died before Albe could pursue
payment from him). The Benefits Review Board rejected Albe’s new claim in
a succinct and clear opinion, which points out that Albe did not fulfill his duty
to have the district director and administrative law judge “fix in the award
approving the fee, such lien and manner of payment.” 33 U.S.C. § 928(c)
(emphasis added).
This court reviews Benefits Review Board decisions for substantial
evidence and errors of law. Conoco, Inc. v. Dir., OWCP, U.S. Dep’t of Labor,
194 F.3d 684, 687 (5th Cir. 1999). Albe does not challenge the Benefits Review
Board’s recitation of the facts, and we find no error of law in its interpretation
of Albe’s duty to perfect, or have “fixed” a lien against the employer’s payment
of benefits.
The petition for review of the judgment of the Benefits Review Board is
DENIED.

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