Sixth Circuit Sides With Fourth and Fifth Circuits Over Split Re: Employer’s Liability for Attorney’s Fees Under the Longshore Act

Per Pittsburgh & Conneaut Dock Co. v. Director, Office of Workers' Compensation Programs, 2007 WL 14312 (6th Cir. Jan. 04, 2007):

When a claimant employs an attorney to pursue his or her claim under the Longshore Act, § 928 provides for the employer to be liable for the claimant's attorney's fees in two particular situations that are described in subsections (a) and (b), respectively. "In all other cases any claim for legal services shall not be assessed against the employer." § 928(a).

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The Ninth Circuit precedent relied upon by the BRB does support its ruling. See, e.g., Nat'l Steel, 606 F.2d at 882. However, the BRB did not adequately address the circuit split that exists on this issue. The Fifth Circuit has consistently required that each of the requirements set forth in subsection (b) be met before an employer incurs liability for attorney's fees. Pool Co. v. Cooper, 274 F.3d 173, 186 (5th Cir.2001); Staftex Staffing v. OWCP, 237 F.3d 404, 408-09 (5th Cir.2000); FMC Corp. v. Perez, 128 F.3d 908, 910 (5th Cir.1997). Two days after the BRB issued its ruling, the Fourth Circuit weighed in on this issue, agreeing with the Fifth Circuit. Edwards, 398 F.3d at 318. Whether the lack of a written recommendation (or any recommendation at all) for the disposition of the controversy precludes fee liability under subsection (b) is an issue of first impression in this circuit.

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We adopt the approach taken by the Fourth and Fifth Circuits. "In all cases of statutory construction, the starting point is the language employed by Congress." Appleton v. First Nat'l Bank of Ohio, 62 F.3d 791, 801 (6th Cir.1995). "Moreover, where the statute's language is plain, the sole function of the courts is to enforce it according to its terms." Chapman v. Higbee Co., 319 F.3d 825, 829 (6th Cir.2003) (en banc) (quoting United States v. Ron Pair Enterprises, 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290(1989)). The language of subsection (b) plainly states that in order for fees to be assessed under its terms there must be a written recommendation containing a suggested disposition of the controversy.