UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOIS TAYLOR, widow of Glen
Taylor,
Petitioner,
                                                                                     No. 98-71004
v.
                                                                                     BRB No. 94-363
DIRECTOR, OFFICE OF WORKERS
COMPENSATION PROGRAMS, Plant                                OPINION
Shipyard Corporation and its
Insurer, Industrial Indemnity,
Respondent.

On Petition for Review of an Order
of the Benefits Review Board

Argued and Submitted
December 7, 1999--San Francisco, California

Filed January 28, 2000

Before: Ruggero J. Aldisert,* Diarmuid F. O'Scannlain and
Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Aldisert

_________________________________________________________________
*Ruggero J. Aldisert, Senior Judge, United States Court of Appeals for
the Third Circuit, sitting by designation.
                               823
 
 
 

COUNSEL

Anne M. Burr, Kazan, McClain, Edises, Simon & Abrams,
Oakland, California, for the petitioner.

                               826
 

Samuel Oshinsky (argued) & Laura J. Stomski (on the briefs),
United States Department of Labor, Washington, D.C., for the
federal respondent.

Roger A. Levy, Laughlin, Falbo, Levy & Moresi, San Fran-
cisco, California, for the private respondent.

_________________________________________________________________

OPINION

ALDISERT, Circuit Judge:

Section 33(f) of the Longshore and Harbor Workers' Com-
pensation Act, 33 U.S.C. S 933(f) ("Act" or "LHWCA"),
describes the rights and responsibilities of a "person entitled
to compensation" who enters into a settlement with a third
party. Lois Taylor, widow of Glenn Taylor, the covered
worker under the Act, petitions this court for review of a final
order of the Benefits Review Board, which credited her late
husband's employer for amounts she received from third-
party settlements entered into prior to her husband's death.
The issue that we must decide in this petition for review is
whether Petitioner was a "person entitled to compensation"
under S 33(f) of the Act when she entered into these third-
party settlements. If she was such a person, her late husband's
employer, Plant Shipyard Corporation,1  would be entitled to
offset against its death benefit liability the net amount of Peti-
tioner's recovery from the third parties under S 33(f).2 The
_________________________________________________________________
1 Plant Shipyard is no longer in business. Its insurance carrier, Industrial
Indemnity, stands in the place of the employer in this matter pursuant to
S 35 of the Act, 33 U.S.C. S 935. See Plant Shipyard Br. at i (Corporate
Disclosure Statement).
2 Section 33(f) provides:

       If the person entitled to compensation institutes proceedings
      within the period prescribed in subsection (b) of this section the
      employer shall be required to pay as compensation under this

                               827
 

Board determined that she was such a person and ruled that
Plant was entitled to the offset. We disagree and grant the
petition for review.

Section 33 of the Act governs the interplay between an
employer's LHWCA liability and any tort liability appor-
tioned to third parties responsible for the employment-related
condition. Distilled to its essence, S 33 of the Act describes
the rights and responsibilities of the "person" and the
employer when the person receives compensation for injuries
from "some person other than the employer . . .[who] is liable
in damages." 33 U.S.C. S 933(a). As we noted in Cretan v.
Bethlehem Steel Corp., "[s]ection 33 of the LHWCA estab-
lishes a claimant's right to seek recovery from third parties
without fear of being categorically denied compensation or
benefits under the Act." 1 F.3d 843, 846 (9th Cir. 1993).

If a person entitled to compensation enters into a third-
party settlement for an amount less than the compensation due
under LHWCA, then he or she is required to seek the employ-
er's written approval of the settlement or risk forfeiture of the
right to benefits. See Section 33(g) of the Act, 33 U.S.C.
S 933(g).3 The purpose ofS 33(g) is "to protect the employer
_________________________________________________________________
      chapter a sum equal to the excess of the amount which the Secre-
      tary determines is payable on account of such injury or death
      over the net amount recovered against such third person. Such net
      amount shall be equal to the actual amount recovered less the
      expenses reasonably incurred by such person in respect to such
      proceedings (including reasonable attorneys' fees).

33 U.S.C. S 933(f).
3 Section 33(g) of the Act provides in relevant part:

       If the person entitled to compensation . . . enters into a settle-
      ment with a third person . . . for an amount less than the compen-
      sation to which the person . . . would be entitled under this
      chapter, the employer shall be liable for compensation as deter-
      mined under subsection (f) of this section only if written approval
      of the settlement is obtained from the employer and the employ-
      er's carrier, before the settlement is executed . . . .

33 U.S.C. S 933(g)(1).

                               828
 

against the employee's entering an inordinately low settle-
ment, which would deprive the employer of a proper set-off
under section 33(f)." Cretan, 1 F.3d at 846.

It therefore becomes important to understand the interrela-
tionship between subsections (f) and (g) of 33 U.S.C. S 933.
Both subsections (f) and (g) begin with identical language--
namely, "[i]f the person entitled to compensation"--which
attaches a condition precedent to the operation of each sub-
section. If the person is not a statutory "person entitled to
compensation" under S 33 of the Act, then subsections (f) and
(g) do not apply. However, if the person is a "person entitled
to compensation" under the Act, then subsections (f) and (g)
operate to protect the employer from the person entering into
an inordinately low settlement with a third party, see 33
U.S.C. S 933(g), and require the employer to pay only the
excess of statutory compensation over the net amount recov-
ered against such third parties, see 33 U.S.C. S 933(f).

The key question for decision here is whether we should
give the same interpretation to the phrase "person entitled to
compensation" in S 33(f) as did the Supreme Court when it
interpreted the same language in S 33(g) in Ingalls Shipbuild-
ing, Inc. v. Director, OWCP [Yates], 519 U.S. 248 (1997). In
Yates, the Court held that "before an injured worker's death,
the worker's spouse is not a `person entitled to compensation'
for death benefits within the meaning of LHWCA S 33(g),
and does not forfeit the night to collect death benefits under
the Act for failure to obtain the worker's employer's approval
of settlements entered into before the worker's death." 519
U.S. at 261-262.

The majority of the Board refused to extend the Court's
interpretation of the language "person entitled to
compensation" to identical language in S 33(f); one Board
member dissented, concluding that Mrs. Taylor was not a
"person entitled to compensation" under S 33(f) when she
joined the settlement agreements with third parties because

                               829
 

her husband was still alive. Petitioner contends that the major-
ity's decision was error, and she urges us to accept the dis-
senting Board member's rationale and, therefore, to extend
the Court's interpretation of the phrase "person entitled to
compensation" in S 33(g) to the credit provision in S 33(f).
The issue is squarely joined and we must meet this question
of statutory construction.

The administrative law judge had subject-matter jurisdic-
tion pursuant to 33 U.S.C. S 919(d). The Benefits Review
Board had jurisdiction under 33 U.S.C. S 921(b)(3). We have
Jurisdiction over final Benefits Review Board orders pursuant
to 33 U.S.C. S 921(c). Petitioner timely filed her petition for
review of the Board's decision. 33 U.S.C. S 921(c).

The Board's decisions in LHWCA cases are reviewed for
errors of law and adherence to the substantial evidence stan-
dard. Duhagon v. Metropolitan Stevedore Co., 169 F.3d 615,
618 (9th Cir. 1999). No special deference is owed to the
Board's interpretation of the Act. Port of Portland v. Direc-
tor, OWCP, 932 F.2d 836, 838 (9th Cir. 1991). Nevertheless,
we give considerable weight to the construction of the Act
urged by the OWCP Director, who is charged with its admin-
istration. Sproull v. Director, OWCP, 86 F.3d 895, 898 (9th
Cir. 1996).

I.

Mrs. Taylor, the Petitioner, filed claims for death benefits
under California state workers' compensation law and
LHWCA after her husband died of lung cancer, a condition
that resulted from Mr. Taylor's exposure to asbestos while he
worked as a shipfitter at two shipyards in the 1950s. The Ben-
efits Review Board concluded that Plant Shipyards, the last
responsible employer, was liable to Mrs. Taylor for death
benefits, but that Plant was entitled to offset its liability under
S 33(f) of the Act for amounts Mrs. Taylor recovered in third-
party tort settlements entered into prior to her husband's

                               830
 

death. Mrs. Taylor petitions this court for review and con-
tends that Plant is not entitled to an offset against its death
benefit liability, because she was not a "person entitled to
compensation" under S 33(f) of the Act when she entered into
the third-party settlements.

II.

Glenn Taylor worked as a shipfitter in the 1950s at the
shipyards of both Bethlehem Steel Corporation and Plant
Shipyard Corporation, where he was exposed to asbestos.
After retiring in 1980 because of poor health, Mr. Taylor filed
a state workers' compensation claim in 1981 and a third-party
action against several asbestos manufacturers in October
1984. On December 28, 1984, he filed his initial claim for
benefits under LHWCA, which he later amended to name
Bethlehem Steel and Plant Shipyard as possible responsible
employers.

On October 21, 1987, Mr. Taylor entered into three sepa-
rate third-party settlements totaling $266,500. 4 On April 11,
1988, Mr. Taylor also entered into a third-party settlement
with Combustion Engineering, Inc. for $17,500. Petitioner
Lois Taylor, decedent's wife, co-signed each of the settle-
ments as a co-releasor, thereby settling her loss of consortium
and potential wrongful death actions against these third par-
ties.

In February 1989, an administrative law judge determined
that Plant was the last responsible employer, awarded Mr.
Taylor permanent partial disability benefits and found Plant
entitled to receive a credit pursuant to S 3(e) of the Act, 33
U.S.C. S 903(e), for the amount decedent received from his
state workers' compensation claim, as well as a credit under
_________________________________________________________________
4 Mr. Taylor settled with the following defendants on October 21, 1987:
Fireboard Corporation, for $250,000, Babcock & Wilcox Company, for
$15,000; and Garlock, Inc., for $1500.

                               831
 

S 33(f) of the Act, 33 U.S.C. S 933(f), for the entire amount
of the net proceeds from the third-party settlements.

After the ALJ's decision, Mr. and Mrs. Taylor entered into
another third-party settlement on November 17, 1990, with
Manville Corporation for $150,000. Mr. Taylor died of lung
cancer on February 13, 1991, and thereafter his widow filed
a claim for death benefits pursuant to S 9 of the Act, 33
U.S.C. S 909.

In a September 3, 1993 Decision and Order, another ALJ
awarded Mrs. Taylor death benefits, but concluded that Plant
was entitled to offset its death benefit liability by the net
amount apportioned to Mrs. Taylor for her wrongful death
action in the third-party settlements. Both parties appealed to
the Benefits Review Board. Plant appealed the ALJ's refusal
to apply the forfeiture provision in S 33(g), and Mrs. Taylor
appealed the ALJ's determination that Plant was entitled to
S 33(f) credit in the amount of her third-party recoveries.

The Board determined that the ALJ abused his discretion
by failing to consider the S 33(g) forfeiture provision in light
of our decision in Cretan v. Bethlehem Steel Corp., 1 F.3d
843 (9th Cir. 1993), and consequently vacated the ALJ's deci-
sion and remanded the case. Shortly after the Board's deci-
sion, the Supreme Court issued its opinion in Ingalls
Shipbuilding, Inc. v. Director, OWCP [Yates], 519 U.S. 248
(1997), in which it declared that a surviving spouse was not
a "person entitled to compensation" underS 33(g) of the Act
prior to the death of the employee-spouse, and thus the claim-
ant did not forfeit her right to collect death benefits under the
Act for failure to obtain the employer's written approval of
third-party settlements entered into prior to the employee's
death. Id. at 261-262.

On remand the ALJ determined that claimant's right to
death benefits was not barred by S 33(g). See E.R. Ex. 1, at
1-2 (citing Yates). Additionally, the ALJ found that claimant

                               832
 

was not a "person entitled to compensation" under S 33(f)
before her husband died, and therefore that Plant was not enti-
tled to offset the amounts Mrs. Taylor recovered from third-
party settlements entered into prior to her husband's death. Id.
at 3. Plant again appealed to the Benefits Review Board.

In its July 8, 1988 decision, the Benefits Review Board
reversed the ALJ and granted Plant a credit of $41,272, which
was the net amount of civil recoveries apportioned to Mrs.
Taylor from settlements with Combustion Engineering and
Manville. The Board reasoned that claimant was a "person
entitled to compensation" at the time of the compensation
award and that Plant therefore was entitled to a credit.
Because Mrs. Taylor was unsuccessful on the merits of her
claim, the Board denied her request for attorney's fees. Mrs.
Taylor petitions this court for review of both rulings.

III.

In Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469,
477 (1992), the Court held that before becoming a statutory
"person entitled to compensation," an employee must
"satisf[y] the prerequisites attached to the right [to recover
benefits]." The Court concluded that an employee became a
person entitled to compensation under the Act "at the moment
his right to recovery vested," and not when his employer
admitted liability. Id.

In Cretan v. Bethlehem Steel Corp., 1 F.3d 843, 846-848
(9th Cir. 1993), we attempted to distinguish the Court's deci-
sion in Cowart and held that the claimant's status at the time
of the civil settlement was largely irrelevant to the issue of his
or her status under the Act. We explained our discomfort with
extending the Court's teachings in Cowart, in which the
claimant was an injured employee, to the facts in Cretan, in
which the claimant was a widow seeking death benefits:

       It is clear that the holding of Cowart does not dic-
      tate the outcome of our case. It does not rule on the

                               833
 

      question whether a claimant whose entitlement will
      mature upon a death that has not yet occurred is a
      person entitled to compensation. . . . The Court[in
      Cowart] . . . stated that the normal meaning of enti-
      tlement is that the person satisfies the prerequisites
      attached to the right. The [claimants] seize upon this
      language, and argue that their entitlement to com-
      pensation under the Act vested when [the injured
      employee] died. There is no reason, however, to
      assume that the Supreme Court had the present situa-
      tion in mind when it uttered [this] dicta.

Cretan, 1 F.3d at 847 (internal quotation marks and citations
omitted).

With respect to S 33(g), our ultimate holding in Cretan is
no longer viable in light of the Supreme Court's teachings in
Yates:

       Taken together, [sections 33 and 9 of the Act]
      indicate that a surviving spouse qualifies for death
      benefits only if: (i) the survivor's deceased worker-
      spouse dies from a work-related injury; (ii) the survi-
      vor is married to the worker-spouse at the time of the
      worker-spouse's death; and (iii) the survivor is . ..
      living with the worker-spouse [or] dependent upon
      the worker-spouse . . . . It is impossible to ascertain
      whether these prerequisites have been met at any
      time prior to the death of the injured worker. We
      therefore reject the argument that a person seeking
      death benefits under the Act can satisfy the prerequi-
      sites for those benefits at any earlier time--e.g.,
      when the worker is initially injured or when the
      worker enters into a predeath settlement. Because
      Mrs. Yates' husband was still alive at the time she
      released her potential wrongful death actions, she
      was not a "person entitled to compensation" at that
      time and was therefore not obligated to seek[the

                               834
 

      employer's] approval to preserve her entitlement to
      statutory death benefits.

Yates, 519 U.S. at 257-258 (citations omitted) (emphasis
added). However, the Court stopped short of deciding the spe-
cific issue presented in Mrs. Taylor's petition to this court
namely whether "person entitled to compensation" has the
same meaning under S 33(f) and S 33(g). See id. at 261 ("This
is a question we have yet to decide, and is one we leave for
another day."). Nevertheless, the Court hinted that "person
entitled to compensation" should have the same meaning in
both S 33(f) and S 33(g). See id. ("If . . . we assumed that
[`person entitled to compensation' carries the same meaning
in S 33(f) and S 33(g)], our conclusion on the question pres-
ented in this case would not change.").

IV.

[1] We begin our inquiry into the meaning of S 33(f)'s
"person entitled to compensation" with an examination of the
language of the statute. See Moskal v. United States, 498 U.S.
103, 108 (1990). As we recognized in Cretan,

      [t]he term "person entitled to compensation" must
      receive the same construction in sections 33(f) and
      33(g), in accord with "the basic canon of statutory
      construction that identical terms within an Act bear
      the same meaning."

Cretan, 1 F.3d at 848 (quoting Cowart, 505 U.S. at 479).
Although the teachings of Yates vitiates our holding in
Cretan, our reference to statutory construction canons in
Cretan--namely, that identical terms in an act require identi-
cal meanings--remains unimpaired. Thus, we will continue to
afford the same meaning to the phrase "person entitled to
compensation" in the context of both S 33(f) and (g), absent
an absurd or glaringly unjust result. See United States v. Mis-
souri Pac. R.R., 278 U.S. 269, 278 (1929) (announcing the

                               835
 

American Plain Meaning Rule, that "where the language of an
enactment is clear and construction according to its terms
does not lead to absurd or impractical consequences, the
words employed are to be taken as the final expression of the
meaning intended").

Plant argues that if we literally apply S 33(g)'s "person
entitled to compensation" meaning to the same language in
S 33(f), the effect would be glaringly unjust and absurd,
because claimants would be allowed to recover twice for the
same claims so long as they settle before their injured spouses
die.

A.

[2] We conclude that an interpretation of S 33 of the
LHWCA that permits double recovery is not an absurd result
so as to influence us to depart from the plain meaning of the
statute. In Yates, the Court explained that double recoveries
are not strictly prohibited under the Longshore and Harbor
Workers' Compensation Act. See 519 U.S. at 261 ("We agree
that the Act generally reflects a policy of avoiding double
recovery . . . [, but this] prohibition against double recovery
is not absolute . . . .") (citing examples where the Act allows
double recoveries). Consequently, the Court "[did] not find
the possibility of [double] recovery in this context [i.e.,
S 33(f) and (g)] to be so absurd or glaringly unjust as to war-
rant a departure from the plain language of the statute." Id.
Accordingly, we will not look beyond the plain meaning of
the statute simply because under some scenarios a claimant
may recover twice under the same claim.

[3] Nor are we without excellent company in our approach
to statutory construction of S 33 of LHWCA. In Yates, the
Court held that a claimant's right to recovery underS 33(g)
must vest before she becomes a "person entitled to
compensation." 519 U.S. at 257. In Cretan, we said that the
phrase "person entitled to compensation" should be construed

                               836
 

to mean the same thing in S 33(f) and (g), in accord with "the
basic canon of statutory construction that identical terms
within an Act bear the same meaning." 1 F.3d at 848. Thus,
if we apply this canon of statutory construction to the Court's
teachings in Yates, then a "person entitled to compensation"
must have a vested right to compensation at the time that per-
son enters into the third-party settlement, at the latest, before
S 33(f) credit or S 33(g) forfeiture can apply.

[4] Petitioner was not a "person entitled to compensation
[i.e., death benefits]" at the time she entered into third-party
settlements, because she lacked one of the prerequisites to
recovering death benefits: the death of the employee-spouse.
A petitioner's claim for LHWCA death benefits is not subject
to S 33(g) forfeiture if the injured employee is still living
when his or her spouse enters into third-party settlements.
Because we are convinced that the phrase "person entitled to
compensation" should carry the same meaning inS 33(f) and
(g), Mrs. Taylor was not a S 33(f) "person entitled to
compensation" and, accordingly, Plant was not entitled to off-
set against its death benefit liability Mrs. Taylor's third-party
recoveries. Although this result may permit Petitioner here to
recover twice for the same claims, we accept the Court's dicta
that such a result is not glaringly unjust under the Act. See
Yates, 519 U.S. at 261.

B.

Furthermore, the federal respondent here, the Director of
the Office of Workers' Compensation Programs ("OWCP"),
agrees that "[Plant] was not entitled to offset its liability for
death benefits under S 33(f) . . . because, at the time of her
recovery, her spouse was still living, and thus she was not . . .
a `person entitled to compensation' " at the time at issue,
namely at the time of settlement. See Director, OWCP Br. at
13, 27-28.

This court typically gives considerable weight to the con-
struction of the statute urged by the Director charged with its

                               837
 

administration. See Sproull v. Director, OWCP, 86 F.3d 895,
898 (9th Cir. 1996). However, the Director has taken conflict-
ing positions on S 33(f)'s proper construction in the past and
has recently promulgated a new interpretation of this subsec-
tion, in light of the recent Supreme Court decisions in Yates
and Cowart. See Director, OWCP Br. at 15. Accordingly, the
Director seeks no deference for his new construction of
S 33(f). Id. Nevertheless, while we afford no deference to the
Director's interpretation in this petition, we take notice that
the Director agrees that Petitioner's construction of S 33(f) is
mandated by the plain language of the statute. Id.

[5] Mrs. Taylor was not a "person entitled to
compensation" under S 33(f) when she entered into third-
party tort settlements prior to her husband's death and, thus,
the Board erred by awarding Plant S 33(f) credit in the
amount of $41,272.

V.

Petitioner also requests attorney's fees under 33 U.S.C.
S 928 for services provided before the Board and this court.
The Board denied Mrs. Taylor's request for attorney's fees for
work done before it because she was unsuccessful before that
tribunal.

We have authority to grant attorney's fees to a successful
benefits claimant under LHWCA only for work done before
this court, and not for work done before the Board. See Direc-
tor, OWCP v. Palmer Coking Coal Co., 867 F.2d 552, 556
(9th Cir. 1989).

The LHWCA provides that one who successfully prose-
cutes a disputed claim against an employer is entitled to rea-
sonable attorney's fees "in an amount approved by the deputy
commissioner, Board, or court, as the case may be, which
shall be paid directly by the employer or carrier to the attor-

                               838
 

ney for the claimant in a lump sum after the compensation
order becomes final." 33 U.S.C. S 928(a).

We have previously announced the procedure to be fol-
lowed in seeking attorney's fees from the court under S 928:

      1. Whether an award will be made will first be
      considered with the merits of the case.

      2. If the claimant succeeds on the merits, the Court
      will then consider an application for attorney's
      fees by motion to the merits panel.

      a. Notice must be given to the employer.

      b. An affidavit must be filed in support of the
      application setting out:

         i.   those considerations the claimant's attorney
      believes should govern the amount to be
      awarded;

         ii.  the hours devoted to each category of work
      connected with the appeal and the reason-
      able hourly rate for each person involved;
      and

         iii. any sharing arrangement as required by 33
      U.S.C. S 928(e).

      3. The employer may respond by brief and affida-
      vit.

      4. The panel may determine the amount of the
      award based upon these papers or, in its discre-
      tion, hear oral argument.

Ford Aerospace and Communications Corp. v. Boling, 684
F.2d 640, 643 (9th Cir. 1982).

                               839
 

Because we conclude that Lois Taylor successfully prose-
cuted her claim for benefits, she should submit the necessary
motion papers to this panel pursuant to the procedures out-
lined above within twenty-one days of the receipt of this
order. See id. Plant may respond, if it desires, within thirty-
five days of the date of this order. See id. We will retain Juris-
diction of this case to the extent necessary to compute attor-
ney's fees for services rendered before this court and will
make our determination upon receipt of a timely motion as
provided for above.

In light of claimant's successful petition to this court on the
merits of her benefits claim, we grant the petition also as to
the Board's denial of her request for attorney's fees associated
with services performed before it, and remand this issue to the
Board for reconsideration.

GRANT AND REMAND IN PART.

                               840