928 F. 2d 1136 - Healy Tibbitts Construction Company v. Director Office of Workers Compensation Programs US Department of Labor D

MEMORANDUM*

Healy Tibbitts Construction Company and American Home Assurance Company appeal the Benefit Review Board's award of workers' compensation benefits to Earl D. Olson under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Secs. 901-950. At oral argument, the parties informed this court that while the appeal was pending, Olson died of causes unrelated to the injury at issue in this appeal, and Healy Tibbitts distributed all benefits owed to Olson's estate pursuant to 33 U.S.C. Sec. 908(d).

We conclude the issue whether Olson satisfied the prerequisites for coverage under the Longshore Act is moot. We do, however, have jurisdiction over the issue of attorney fees. Because we conclude the Benefits Review Board denied Olson's request for attorney fees due to an erroneous view of the record, we remand this case for a determination whether Olson is entitled to attorney fees.

Healy Tibbitts employed Olson, a marine construction carpenter, to assist in the repair and construction of extensions to existing breakwaters at the Diablo Canyon Nuclear Power Plant. The breakwaters sheltered the nuclear plant's saltwater cooling intake system from ocean waves.

On November 18, 1982, Olson was standing on a breakwater adjacent to the nuclear plant. A large wave knocked Olson to the surface of the breakwater. Olson hit his right knee and suffered a twenty percent permanent partial disability.

Olson filed a claim for compensation under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Secs. 901-950 ("Act"). Healy Tibbitts contested the claim alleging Olson failed to meet the Act's "status" requirement, Sec. 902(3), and "situs" requirement, Sec. 903(a). The administrative law judge ("ALJ") agreed with Healy Tibbitts and denied Olson's claim for workers' compensation benefits.

Olson then appealed the ALJ's decision to the Benefits Review Board ("BRB"). The BRB reversed the ALJ's decision and found Olson satisfied both the status and situs requirements necessary for coverage under the Act.1 Healy Tibbitts and American Home appeal the BRB's decision pursuant to 33 U.S.C. Sec. 921(c).

Olson's death and Healy Tibbits' distribution of benefits to Olson's estate rendered moot the issue whether the BRB erred in concluding Olson satisfied the status and situs requirements and thus was covered by the Act. The parties argue, however, that the estate's request for attorney fees salvages an otherwise moot case because the fees are recoverable only if Olson was covered by the Act. Therefore, according to the parties, we must review the BRB's decision that Olson satisfied the Act's status and situs requirements to determine if Olson is entitled to attorney fees. We disagree.

A dispute over attorney fees does not preserve an underlying controversy which otherwise has become moot. United States v. Ford, 650 F.2d 1141, 1143 (9th Cir.1981), cert. denied, 455 U.S. 942 (1982); see also Lewis v. Continental Bank Corp., 110 S.Ct. 1249, 1255 (1990) (noting "interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim").

In Ford, we rejected the appellant's argument that this court must resolve the merits of the action to determine if the appellant was the "prevailing party" and thus entitled to attorney fees. 650 F.2d at 1143. Other circuits also have held a claim for attorney fees does not avert mootness of the underlying action on the merits. S-1 v. Spangler, 832 F.2d 294, 297 n. 1 (4th Cir.1987) ("Any other rule would largely nullify the mootness doctrine with respect to cases brought under the myriad federal statutes that authorize fee awards."); Bagby v. Beal, 606 F.2d 411, 414 (3d Cir.1979); Doe v. Marshall, 622 F.2d 118, 119-20 (4th Cir.1980), cert. denied, 451 U.S. 993 (1981); Brock v. International Union, UAW, 889 F.2d 685, 695 (6th Cir.1989); Bishop v. Committee on Professional Ethics and Conduct, 686 F.2d 1278, 1290 (8th Cir.1982); Dahlem v. Board of Education, 901 F.2d 1508, 1511 (10th Cir.1990); Monzillo v. Biller, 735 F.2d 1456, 1459 (D.C.Cir.1984).

On the other hand, we do have jurisdiction to resolve the issue of attorney fees because this issue is "ancillary to the underlying action and survives independently under the Court's equitable jurisdiction." Id. at 1144. In resolving the attorney fees issue, however, we may not "review or redetermine any of the issues in the underlying action solely for the purpose of deciding the attorney's fees question." Id. at 1144 n. 1; see also Bagby, 606 F.2d at 414 (refusing to review merits indirectly by determining if party is entitled to attorney fees).

The BRB denied Olson's request for attorney fees based on Olson's failure to file a fee petition as required by 20 C.F.R. Sec. 702.132 (1990). As the record demonstrates, however, Olson did file a fee petition before the BRB on March 9, 1989. Accordingly, we remand this case to the BRB to determine if Olson is entitled to attorney fees under 33 U.S.C. Sec. 928.

REMANDED.