Boland Marine & Manufacturing Co. v. Rihner

United States Court of Appeals,

Fifth Circuit.

No. 93-5114.

BOLAND MARINE & MANUFACTURING CO., and Continental Insurance Co.,
Petitioners,

v.

Billy C. RIHNER, son of Paul Rihner, deceased, and Director,
Office of Workers' Compensation Programs, U.S. Department of Labor,
Respondents.

Jan. 9, 1995.

Petition for Review of a Final Order of the Benefits Review Board.

Before KING and BENAVIDES, Circuit Judges, and LAKE, District
Judge.*

KING, Circuit Judge:

This case involves an award of attorney's fees for proceedings

conducted under the Longshore and Harbor Workers' Compensation Act,

33 U.S.C. §§ 901-950. Below, an Administrative Law Judge

determined that the Director of the Office of Workers' Compensation

Programs fostered litigation without reasonable grounds in the

proceedings involving the claim of Billy C. Rihner. Therefore, the

Administrative Law Judge assessed attorney's fees as costs against

the Special Fund under the provisions of 33 U.S.C. § 926. The

Director appealed, and the Benefits Review Board determined that

the Administrative Law Judge erred in awarding fees from the

Special Fund and reversed the award of attorney's fees.

Furthermore, invoking 33 U.S.C. § 928(b), the Benefits Review Board

*
District Judge of the Southern District of Texas, sitting
by designation.

1
found that the employer, Boland Marine & Manufacturing Company, was

liable for the attorney's fees. On remand, an Administrative Law

Judge ordered Boland Marine & Manufacturing Company to pay

$4,060.56 in attorney's fees and expenses. Subsequently, the

Benefits Review Board affirmed the Administrative Law Judge's

order. Boland Marine & Manufacturing Company and its insurer,

Continental Insurance Company, appeal the BRB's decisions. Finding

no reversible error, we affirm.

I. BACKGROUND

In February 1981, Paul Rihner suffered a fatal heart attack

while at work. His wife, Carmelite Rihner, filed a claim for

benefits under the Longshore and Harbor Workers' Compensation Act

("LHWCA") in August of that same year, and Boland Marine and

Manufacturing Company and its insurer, Continental Insurance

Company (collectively "Boland Marine"), began to pay benefits

retroactively from the time of Paul Rihner's death. Carmelite

Rihner continued to receive monthly payments from Boland Marine

until her death in February 1985. At that time, Billy Rihner

("Rihner"), the child of Paul and Carmelite Rihner, began to

receive benefit payments.1

Soon thereafter, Boland Marine sought relief under Section

8(f) of LHWCA which limits the time an employer must pay benefits

1
Although Billy Rihner is an adult, he was entitled to
benefits as a dependent child under the provisions of LHWCA
because of mental disabilities. Specifically, LHWCA provides
that the word child, as used within the Act, includes persons
"who, though, eighteen years of age or over, [are] wholly
dependent on the employee and incapable of self-support by reason
of mental or physical disability." 33 U.S.C. § 902(14).

2
for a disability caused, in part, by an existing injury or

disability.2 Although the Deputy Commissioner recommended that

relief be granted under Section 8, the Associate Director denied

relief under that section, noting that "it could be concluded that

the claimant's demise was a natural progression of his underlying

condition"; "it is questionable whether the claimant's fatal heart

attack "arose out of his employment' "; and "it is not clear from

the file the basis for Billy C. Rihner's entitlement since he is an

adult child." Several months later, in July of 1985, Boland Marine

again requested relief under Section 8(f). Once again, contrary to

the recommendation of the Deputy Commissioner, in November of 1986,

the Associate Director found "that compensability ha[d] not been

established" and denied the request. Additionally, in the letter

denying Section 8(f) relief, the Associate Director advised "that

2
Specifically, LHWCA states:

In any case in which an employee having an existing
permanent partial disability suffers injury, the
employer shall provide compensation for such disability
as is found to be attributable to that injury based
upon the average weekly wages of the employee at the
time of the injury. If following an injury falling
within the provisions ... of this section, the employee
is totally and permanently disabled, and the disability
is found not to be solely due to that injury, the
employer shall provide compensation for the applicable
prescribed period of weeks provided for in that section
for the subsequent injury, or for one hundred and four
weeks, whichever is greater.... In all other cases of
total permanent disability or of death, found not to be
due solely to that injury, of an employee having an
existing permanent partial disability, the employer
shall provide ... compensation payments or death
benefits for one hundred and four weeks only.

33 U.S.C. § 908(f)(1).

3
no further administrative action should be taken in regard to the

claim for compensation or the application for section 8(f) relief."

The month after it was notified of the second rejection of its

claim, Boland Marine filed a "Notice of Final Payment or Suspension

of Compensation Payments" and discontinued paying benefits to

Rihner. A claim for benefits under LHWCA was filed on behalf of

Rihner and the case was referred to the Office of Administrative

Law Judges. In its pre-hearing statement, Boland Marine listed,

inter alia, "[w]hether Mr. Rihner suffered an accident ... while

working for Boland Marine," "the nature and causes of Mr. Rihner's

death," and "[w]hether or not Mr. Rihner's prior cardiac ailments

and other medical conditions constitute a pre-existing permanent

partial disability" as issues to be presented in the hearing.

In June 1988, the Administrative Law Judge ("ALJ") determined

that Paul Rihner's "pre-existing conditions of diabetes mellitus,

coronary arteriosclerosis and hypertension ... constituted a

permanent partial disability for purposes of Section 8(f) of the

Act." Further, the ALJ found that: if Paul Rihner had not

suffered from these conditions "his heart attack might not have

been fatal, or it might not have occurred at all"; "Mr. Rihner's

preexisting permanent partial disability predisposed him to

disability, and in combination with his heart attack ... resulted

in his death"; and "Mr. Rihner's disability was manifest to his

employers." Thus, the ALJ concluded that "Section 8(f) of the Act

is applicable to this case so as to limit the Employer's liability

to 104 weeks of compensation payments." Finally, the ALJ

4
determined that since Rihner was successful in his claim, Boland

Marine was required to pay his attorney's fees.

Boland Marine contested the award of attorney's fees against

it, and the ALJ altered its decision, ordering the "Special Fund to

pay [Rihner's] attorney's fees as the Director [of the Office of

Worker's Compensation Programs ("the Director") ] fostered

litigation without reasonable grounds for doing so." Specifically,

the ALJ determined that:

the record clearly indicates that [Rihner] was entitled to
benefits and that the Employer/Carrier was entitled to § 8(f)
relief. No contradictory evidence was submitted. Therefore,
I find the Director's stance prior to hearing to be
unreasonable, particularly in light of the fact that Director
failed to pursue its position at the formal hearing.
Accordingly, I find that the Director instituted the
proceedings in this case without reasonable ground, and the
Special Fund is therefore liable for [Rihner's] attorney's
fees pursuant to Section 26.

Thus, the ALJ ordered the Special Fund to pay attorney's fees of

$3885 and expenses of $175.56.

The Director appealed the order granting attorney's fees from

the Special Fund to the Benefits Review Board ("BRB"). The BRB

found that the ALJ erred "in assessing attorney's fees against the

Special Fund pursuant to Section 26, as this section provides for

the assessment of the costs of a proceeding only against a party

who has instituted or continued the proceedings without reasonable

grounds." Specifically, the BRB found that it was Boland Marine's

actions "that necessitated a formal hearing ... [r]egardless of the

merit of the Director's position in denying Section 8(f) relief."

Moreover, the BRB reasoned that, because from a pre-hearing

perspective the Director did not know or should not have known that

5
his position would be unsuccessful, the Director did not continue

the proceedings without reasonable ground.

Additionally, the BRB noted that the "Special Fund cannot be

held liable for an attorney's fee under Section 28." The BRB,

however, did find that since Boland Marine terminated payments to

Rihner, Boland Marine was liable for Rihner's attorney's fees under

Section 28(b) notwithstanding its stipulation to Rihner's

entitlement to compensation at the hearing or its successful

petition for relief under Section 8(f). Thus, the BRB vacated the

ALJ's order granting attorney's fees from the Special Fund under

Section 26 and modified the ALJ's decision so to hold Boland Marine

liable for Rihner's attorney's fees.

Subsequently, the case was remanded to an ALJ who assessed

attorney's fees against Boland Marine. Boland Marine then appealed

to the BRB which affirmed the ALJ's order on remand. This appeal

followed. Specifically, Boland Marine argues that: (1) the BRB

erred in concluding that Director did not institute or continue the

proceedings in this case without reasonable grounds, and,

therefore, according to Section 26 of LHWCA, attorney's fees may be

assessed against the Special Fund; (2) Rihner should be entitled

to attorney's fees from the Special Fund under the "bad faith"

exception to the American Rule, the Administrative Procedure Act,

the Federal Rules of Civil Procedure, or the ALJ's general

equitable powers; and (3) an employer cannot be liable under

Section 28 of LHWCA when it did not controvert a Claimant's

entitlement to benefits. We reject all of Boland Marine's

6
contentions, and we affirm the decision of the BRB.

II. STANDARD OF REVIEW

In reviewing the decisions of the BRB, the scope of this

court's review is relatively narrow. In examining the orders of

the BRB our role is limited to " "considering errors of law and

making certain that the BRB adhered to its statutory standard of

review of factual determinations, that is, whether the ALJ's

findings of fact are supported by substantial evidence and

consistent with the law.' " Avondale Shipyards, Inc. v. Kennel,

914 F.2d 88, 90 (5th Cir.1990) (quoting Miller v. Central Dispatch,

Inc., 673 F.2d 773, 778 (5th Cir. Unit A 1982)); accord Tanner v.

Ingalls Shipbuilding, 2 F.3d 143, 144 (5th Cir.1993); Empire

United Stevedores v. Gatlin, 936 F.2d 819, 822 (5th Cir.1991). In

our review we "may not substitute [our] judgment for that of the

ALJ, nor may we reweigh or reappraise the evidence," instead we

inquire whether there was evidence supporting the ALJ's factual

findings. Empire United Stevedores, 936 F.2d at 822 (citations

omitted).

III. DISCUSSION

A. Assessment of Fees under Section 26

Boland Marine's first contention is that the BRB improperly

disregarded substantial evidence supporting the ALJ's determination

that the Director instituted or continued the proceedings in this

case without reasonable ground. As a consequence, Boland Marine

asserts that the BRB should have affirmed the ALJ's award of

attorney's fees from the Special Fund pursuant to Section 26 of

7
LHWCA. Regardless of the propriety of the BRB's review, we cannot

support Boland Marine's position because we find, as did the Ninth

Circuit in Metropolitan Stevedore Co. v. Brickner, 11 F.3d 887 (9th

Cir.1993), that Section 26 vests neither the ALJ nor the BRB with

the power to award attorneys fees.

Section 26 of LHWCA states that:

If the court having jurisdiction of proceedings in respect of
any claim or compensation order determines that the
proceedings in respect of such claim or order have been
instituted or continued without reasonable ground, the costs
of such proceedings shall be assessed against the party who
has so instituted or continued such proceedings.

33 U.S.C. § 926. This section grants the power to assess costs

only to courts, not to administrative agencies. Thus, while in the

past, the BRB has assumed that Section 26 allowed ALJs to assess

costs, see, e.g., Medrano v. Bethlehem Steel Corp., 23 B.R.B.S.

223, 225-26 (1990); Toscano v. Sun Ship, Inc., 24 B.R.B.S. 207,

211-13 (1991), "we cannot ... disregard the plain meaning of the

statute or its legislative history, nor may we create rights not

given or implied by the terms of the Act." Brickner, 11 F.3d at

889.

As the Ninth Circuit noted in Brickner, it is clear from other

provisions of LHWCA that Congress knew the difference between the

ALJ, the BRB, and the federal courts when it parceled out the power

to award attorney's fees in LHWCA's various provisions. Id. at

890. For example, Section 28 of LHWCA provides for an award of

attorneys fees to a successful claimant in "an amount approved by

the deputy commissioner, Board, or court, as the case may be." 33

U.S.C. § 928(a); see also Brickner, 11 F.3d at 890 (discussing the

8
powers granted by Section 28). Conversely, Section 26 does not

provide administrative agencies with such power; instead, that

section specifically grants the power to assess costs only to "the

court having jurisdiction of the claim or the proceeding." 33

U.S.C. § 926.

The legislative history of LHWCA further buttresses the notion

that the power to assess costs under Section 26 rests only with

courts. The original bill provided that "[i]f the deputy

commissioner or the District Court before whom any proceedings are

brought determines that such proceedings have been brought,

prosecuted, or defended without reasonable ground, the whole cost

of the proceedings shall be assessed upon the party who has so

brought, prosecuted or defended them." Compensation for Employees

in Certain Maritime Employments: Hearings on S. 3170 Before a

Subcomm. of the Senate Comm. on the Judiciary, 69th Cong., 1st

Sess. 11 (1927). When the bill was passed, however, the power to

assess costs was given only to the courts. See 33 U.S.C. § 926;

Brickner, 11 F.3d at 890.

Moreover, although other sections of LHWCA have been amended

in the more than sixty years since it was passed, Section 26 has

not been changed. Notably, in 1972, Congress altered the

procedures for adjudicating claims under LHWCA, transferring formal

adjudication responsibilities from deputy commissioners to ALJs.

Brickner, 11 F.3d at 890. At the same time, Congress also moved

the forum for initial review proceedings from the district courts

to the BRB. Id. Despite these changes, Congress did not alter

9
Section 26. As the Ninth Circuit concluded, "[i]f Congress wanted

to confer cost awarding power upon the Board, it could easily have

done so when it amended the statutory scheme. Instead, it

continued the prior division between court and administrative

proceedings." Id. Thus, while we note that it is somewhat unusual

that costs for unreasonably instituting an action cannot be

assessed in the forum where the action is instituted or continued,

we cannot ignore the plain language of the statute. Simply,

neither the ALJ nor BRB is a court, and Section 26 provides only

courts with the power to award costs. Consequently, we find no

reversible error in the BRB's decision vacating the ALJ's award of

attorney's fees under Section 26.3

B. Attorney's Fees Under Other Statutes or Equitable Powers

Boland Marine also argues that since the Director acted

unreasonably, the Director should be held liable for Rihner's

attorney's fees under the " "bad faith' exception to the American

Rule and/or under the general powers and authorities of ALJ's

pursuant to the Administrative Procedure Act, the Federal Rules of

3
This result is consistent with the Second Circuit's holding
in Overseas African Construction Corp. v. McMullen, 500 F.2d 1291
(2d Cir.1974). In Overseas African Construction, the court
discussed the actions of the district court in assessing
attorneys fees. Id. at 1297. Similarly, the Ninth Circuit's
holding in Stevedoring Services of America, Inc. v. Eggert, 953
F.2d 552 (9th Cir.1992), cert. denied, --- U.S. ----, 112 S.Ct.
3056, 120 L.Ed.2d 922 (1992), is not contrary to this decision.
The only information regarding the award of attorney's fees by
the ALJ in that case is a reference to an award of 60 dollars
granted as "a sanction for having made a proceeding to compel
discovery necessary." Id. at 554. The court did not discuss the
propriety of an ALJ's assessment of attorney's fees under Section
26, and we assume that the position of the Ninth Circuit on this
issue is that which it recently expressed at length in Brickner.

10
Civil Procedure, and equity."

1. Attorney's Fees under the Federal Rules of Civil Procedure.

Boland Marine asserts that the Director should be forced to

pay Rihner's attorney's fees pursuant to Federal Rules of Civil

Procedure 11 or 16(f), both of which, according to Boland Marine,

"allow for an award of attorneys fees as sanctions."

The Federal Rules of Civil Procedure apply "to proceedings for

enforcement or review of compensation orders under [LHWCA §§ 18 and

21], except to the extent matters of procedure are provided for in

the Act." Fed.R.Civ.P. 81(a)(6); see also Brickner, 11 F.3d at

891 (discussing the Rule). Section 18 of LHWCA governs the

enforcement of benefit awards—the "collection of the defaulted

payments" from an employer, or, if the employer is insolvent or

otherwise unable to make payments, Section 18 authorizes payment

from the Special Fund. 33 U.S.C. § 918. The enforcement

procedures set out in this section require certain filings with the

deputy commissioner and in the federal district court. Similarly,

Section 21 of LHWCA sets forth the procedures for the review of

compensation orders by the BRB and the federal courts. 33 U.S.C.

§ 921. Yet Rule 81(a)(6) does not make the Federal Rules of Civil

Procedure applicable to all LHWCA proceedings since by its very

language, it extends the reach of the Rules to enforcement and

review proceedings only. Brickner, 11 F.3d at 891.

The Federal Rules of Civil Procedure, however, do apply in

proceedings under LHWCA "in any situation not provided for or

controlled ... by any statute, executive order, or regulation." 29

11
C.F.R. § 18.1(a). Nevertheless, while federal regulation

incorporates the Federal Rules into some aspects of LHWCA

proceedings, the imposition of attorney's fees and sanctions for

instituting or continuing a proceeding without reasonable ground is

an area provided for or controlled by the Act. Accordingly, we

find that Rules 11 and 16 find no application in those situations.

As noted above, Section 26 of LHWCA "provides for the

situation when a party institutes or continues a proceeding without

reasonable ground." Brickner, 11 F.3d at 891. We agree with the

reasoning of the Ninth Circuit that the inclusion of this section

in LHWCA, "which allows a sanction for unreasonable claims against

either party, impliedly precludes a sanction for bad faith claims,

and therefore Rule 11 should not be incorporated." Id. Moreover,

the notion that attorney misconduct in LHWCA proceedings should be

governed by Section 26 instead of the sanctioning procedures of the

Federal Rules of Civil Procedure is further supported by the

federal regulations. Specifically, the federal regulations direct

an ALJ to certify instances of attorney misbehavior to the "Federal

District Court having jurisdiction in the place in which he or she

is sitting to request appropriate remedies." 29 C.F.R. § 18.29.

We agree with the Brickner court that the sanctioning

mechanism provided in Section 26 "makes it plain that Congress has

considered the possibility that either party will do the acts

contemplated by Rule 11 and has determined the stage at which

corrective disciplinary action can be taken." Brickner, 11 F.3d at

891. Thus, we find that because Section 26 controls the

12
circumstances of a party continuing a proceeding without reasonable

ground, the sanctioning procedures of the Federal Rules of Civil

Procedure are not applicable to that conduct.

2. Attorney's Fees Under the American Rule

Under the well-established American Rule used in the federal

courts, "absent statute or enforceable contact, litigants pay their

own attorney's fees." Alyeska Pipeline Serv. Co. v. Wilderness

Soc'y, 421 U.S. 240, 257, 95 S.Ct. 1612, 1621, 44 L.Ed.2d 141

(1975); accord Holliday v. Todd Shipyards Corp., 654 F.2d 415, 419

(5th Cir.1981), overruled on other grounds, Phillips v. Marine

Concrete Structures, Inc., 895 F.2d 1033 (5th Cir.1990); Director

v. Robertson, 625 F.2d 873, 876 (9th Cir.1980). There are,

however, a few nonstatutory exceptions to the American Rule.

Courts may depart from the general rule that each party pays his

own attorney's fees in "cases involving a common fund, situations

where a party has willfully violated a court order, and cases of

fraudulent, groundless, oppressive, or vexatious conduct."

Holliday, 654 F.2d at 419 n. 4; see also Alyeska Pipeline, 421

U.S. at 257-59, 95 S.Ct. at 1621-22. A court's ability to award

attorney's fees, even under these judicially-created exceptions to

the American Rule, is not unfettered. In a statute such as LHWCA,

Congress, "while fully recognizing and accepting the general rule,

[has made] specific and explicit provisions for the allowance of

attorney's fees," and the statute must guide courts in the award of

such fees. Alyeska Pipeline, 421 U.S. at 260 & n. 33, 95 S.Ct. at

1623 & n. 33. In these situations, the Supreme Court has noted

13
that "it is apparent that the circumstances under which attorneys'

fees are to be awarded and the range of discretion of the courts in

making those awards are matters for Congress to determine." Id. at

262, 95 S.Ct. at 1624; see also Holliday, 654 F.2d at 419-20

(discussing the applicability of the American Rule's statutory

exceptions to LHWCA). Thus, Alyeska Pipeline seems to indicate

that when a Congressional statute sets out the framework for the

award of attorney's fees, courts should look to that statutory

framework alone to determine whether sanctions should be awarded.

Notwithstanding this language, the Supreme Court recently

indicated that even if a statute governs the imposition of

attorney's fees a court may "resort to its inherent power to impose

attorney's fees, as a sanction for bad faith conduct. This is

plainly the case where the conduct at issue is not covered by one

of the other sanctioning provisions." Chambers v. NASCO, Inc., 501

U.S. 32, 50, 111 S.Ct. 2123, 2135, 115 L.Ed.2d 27 (1991). In

Chambers, the Court stated that while the "inherent powers of the

lower federal courts can be limited by statute and rule[,] ... we

do not lightly assume that Congress has intended to depart from

established principles such as the scope of a court's inherent

power." Id. at 47, 111 S.Ct. at 2134 (internal quotations and

citations omitted). Consequently, the Court concluded that, even

in the face of a statute or a rule, a court's ability to levy

attorney's fees as sanctions was not limited to situations covered

by that rule or statute. The Court noted that in a situation where

a party acts in bad faith, and when "neither the statute nor the

14
rules [is] up to the task [of sanctioning the conduct], the court

may safely rely on its inherent power" to assess attorney's fees.

Id. at 50, 111 S.Ct. at 2136; see also United States v. Horn, 29

F.3d 754, 760 (1st Cir.1994) ("[E]ven though a particular abuse is

covered by a specific statute or rule, a court still may invoke its

supervisory power to address the abuse if the remedial provision is

inadequate to the task."); Amsted Indus. v. Buckeye Steel Castings

Co., 23 F.3d 374, 378 (Fed.Cir.1994) ("[S]tatutes governing

sanctions do not displace the federal courts' inherent power to

impose sanctions for bad faith and vexatious conduct.").

We recognize that there may be some tension between Chambers

and Alyeska Pipeline regarding the ability of a court to exercise

its equitable powers to assess attorney's fees for bad faith

conduct in the face of a statute describing the circumstances in

which fees may be assessed. See Chambers, 501 U.S. at 61, 111

S.Ct. at 2141 (Kennedy, J. dissenting) (noting the case "permits

the exercise of inherent sanctioning powers without prior recourse

to controlling rules and statutes, thereby abrogating to federal

courts the power to regulate fees and costs"). Nevertheless, in

the instant case, we need not concern ourselves with that tension.

Simply, this is not a case in which the conduct of the Director

rises to the level of abuse warranting the use of the court's

inherent power to sanction. A court should invoke its inherent

power to award attorney's fees only when it finds that "fraud has

been practiced upon it, or that the very temple of justice has been

defiled." Chambers, 501 U.S. at 46, 111 S.Ct. at 2133; accord

15
Amsted Indus., 23 F.3d at 379.

In the instant case, the ALJ commented that the "Director's

stance prior to the hearing was unreasonable" because, despite

contesting the 8(f) request of Boland Marine, the Director did not

offer any evidence in opposition to the motion or pursue his

position in opposition to the request for 8(f) relief at the formal

hearing. Thus, the ALJ determined that the Director should be

liable for Rihner's attorney's fees for "institut[ing] proceedings

in this case without reasonable grounds." While this is the

appropriate standard for a federal court (and, as discussed above,

only a court) to assess attorney's fees under Section 26 of LHWCA,

it is not the equivalent to the finding that a fraud was

perpetrated on the court or that "very temple of justice has been

defiled" which is required for a court assess attorney's fees

through its inherent powers. Accordingly, we do not find that his

actions warrant the exercise of the court's equitable powers to

award attorney's fees.

3. Equal Access to Justice Act

Finally, Boland Marine makes a cursory argument that the

Special Fund should be held liable for attorney's fees under the

provisions of the Equal Access to Justice Act ("EAJA"), 5 U.S.C. §

504. We find their argument meritless.

The EAJA allows parties in "certain adversary administrative

proceedings to recover attorney's fees and costs from the

government." Hodge v. United States Dep't of Justice, 929 F.2d

153, 154 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct.

16
866, 116 L.Ed.2d 772 (1992). In order to receive such an award,

certain procedures must be followed. Specifically, "[a] party

seeking an award of fees and other expenses shall, within thirty

days of a final disposition in the adversary adjudication, submit

to the agency an application which shows that the party is a

prevailing party and is eligible to receive an award under [the]

section...." 5 U.S.C. § 504(a)(2). Here, there is no evidence in

the record that Rihner, the party seeking fees, followed these

procedures. Accordingly, we will not address whether attorney's

fees should be awarded under the provisions of the EAJA in this

case.

C. Boland Marine's Liability for Attorney's Fees under Section 28

Boland Marine also argues that attorney's fees cannot be

assessed against it under Section 28 of LHWCA because "it did not

controvert [Rihner's] entitlement to benefits" and Rihner "did not

successfully obtain an order which [Boland Marine] had contested."

Specifically, Boland Marine argues that it "never contested the

underlying compensability of Mr. [Paul] Rihner's heart attack ...,

and [it] voluntarily paid death benefits to Mr. Rihner's widow and

son." These contentions, however, are belied by the record of this

case.

Section 28(b) of LHWCA provides for an award of attorney's

fees when "the employer tenders partial compensation but refuses to

pay the total amount claimed by the claimant, and the claimant uses

the services of an attorney to successfully recover the total

17
amount claimed."4 Savannah Mach. & Shipyard Co. v. Director, 642

F.2d 887, 889 (5th Cir.1981); accord Holliday, 654 F.2d at 419.

In addition to ceasing payment of benefits, Boland Marine

specifically listed "[w]hether Mr. Rihner suffered an accident ...

while working for Boland Marine, and the surrounding circumstances

thereof" and "[t]he nature and causes of Mr. Rihner's death" as

issues requiring resolution by the ALJ. In the initial proceeding,

the ALJ expressly "found the evidence sufficient to establish that

[Paul Rihner's] heart attack could have been caused by his

employment" and that "death benefits are warranted in this case."

Accordingly, the ALJ concluded that Rihner was entitled to

attorney's fees from Boland Marine.

Although, when the ALJ revisited this issue, it determined

that "it was the Director who placed compensability in issue," we

find that the BRB accurately determined that this finding was not

supported by the facts. Regardless of whether Boland Marine was

entitled to relief from the Director under section 8(f), it was

4
Section 28 states, in part:

If the employer or carrier pays or tenders payment of
compensation without an award to section 914(a) and (b)
of this title, and thereafter a controversy develops
over the amount of additional compensation, 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 writing
a disposition of the controversy.... If the claimant
is successful in review proceedings 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
reasonable attorney's fee for claimants counsel....

33 U.S.C. § 928(b).

18
Boland Marine's actions ceasing payment and contesting

compensability for the underlying claim that required Rihner to

hire an attorney to pursue his claim. As the BRB noted, the fact

that an "employer is discharged from some compensation due to the

operation of Section 8(f) does not affect its obligation for

attorney's fees under Section 28(b)." See Henry v. George Hyman

Constr. Co., 749 F.2d 65, 69 (D.C.Cir.1984) ("a claimant has no

interest in the source of compensation") (citing, inter alia, Price

v. Greyhound Bus Lines, Inc., 14 B.R.B.S. 439, 440 n. 1 (1981),

dismissed for lack of subject matter jurisdiction, No. 81-1934 (4th

Cir. Jan. 4, 1982), cert. denied, 459 U.S. 831, 103 S.Ct. 70, 74

L.Ed.2d 70 (1982); Creasy v. Bateson, 14 B.R.B.S. 434, 437

(1981)).

In this case, Boland Marine discontinued payment of benefits.

Rihner brought a claim, and in the pre-hearing filings, Boland

Marine listed causation and compensability as issues to be resolved

in the proceeding. Eventually, Rihner successfully recovered the

full amount of his claim. Therefore, we find no error in the BRB's

finding that under Section 28(b) of LHWCA, Boland Marine is liable

for attorney's fees.

Additionally, we find that Boland Marine is responsible for

Rihner's attorney's fees and expenses (totalling $5520.57) in this

appeal. As we have noted, "when an employer contests its liability

in whole or in part and the claimant is ultimately successful, the

employer and not the claimant must pay the claimant's attorney's

fees for services necessary to that success." Hole v. Miami

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Shipyards Corp., 640 F.2d 769, 774 (5th Cir.1981); see also

Vincent v. Consolidated Operating Co., 17 F.3d 782, 787 (5th

Cir.1994) (per curiam) (holding in a LHWCA case that "[b]ecause the

defendants denied their liability but lost this appeal, they are

liable ... for the attorney's fees incurred in defending this

appeal"). Thus, Rihner is entitled to "a fee rendered ... for the

successful prosecution of this appeal." Hole, 640 F.2d at 774

(quoting American Stevedores, Inc. v. Salzano, 538 F.2d 933, 937

(2d Cir.1976)).

Finally, Rihner requests an award of interest on the

attorney's fees. We, however, decline this request. In short,

there is no indication in the statute or in the case law that

interest is available on attorney's fees granted under Section 28

of LHWCA. See Hobbs v. Director, 820 F.2d 1528, 1531 (9th

Cir.1987) (holding that interest is not available for attorney's

fees and noting that "[i]t is the prerogative of Congress ... to

establish the circumstances, if any, under which such interest may

be available"); Fisher v. Todd Shipyards, 21 B.R.B.S. 323, (noting

that "there is no legal authority under the Act for awarding

interest" on attorney's fees).

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the BRB,

and we award attorney's fees and expenses for the appeal against

Boland Marine and in favor of Rihner in the amount of $5520.57.

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