CASTRO v. SSA TERMINALS LLC (2018)

MEMORANDUM **

Eric Dupree appeals from the Benefits Review Board's (“BRB”) denial of his petition for attorney's fees under the Longshore and Harborworkers’ Compensation Act (“Longshore Act”). We have jurisdiction pursuant to 33 U.S.C. § 921(c), and we DENY the petition for review.

“The decision of the BRB is reviewed for substantial evidence and errors of law.” Van Skike v. Dir., OWCP, 557 F.3d 1041, 1045 (9th Cir. 2009). Factual findings are supported by substantial evidence if “a reasonable mind might accept [such evidence] as adequate to support a conclusion.” E.P. Paup Co. v. Dir., OWCP, 999 F.2d 1341, 1353 (9th Cir. 1993) (quoting Lockheed Shipbldg. v. Dir., OWCP, 951 F.2d 1143, 1145 (9th Cir. 1991)).

Here, the BRB's decision that Bernard Castro did not successfully prosecute his Longshore Act claim as required by 33 U.S.C. § 928(a) was based on factual determinations that are supported by substantial evidence. First, substantial evidence supports the conclusion that the parties did not intend for a Section 3(e) credit to offset any liability imposed under the Longshore Act, see 33 U.S.C. § 903(e), because the settlement agreement stated that Castro was to receive “a lump sum payment of $0.00 under the [Longshore Act].” In other words, it is reasonable to conclude that the settlement did not impose any liability under the Longshore Act against which a Section 3(e) credit could apply.

Second, given that Castro received no payment under the Longshore Act, substantial evidence supports the conclusion that the parties did not intend for the $4,000 payment to serve as consideration for the release of Castro's Longshore Act claim. Even if the parties structured the agreement to avoid fees under the Act, such a structure is permissible after Evans v. Jeff D., 475 U.S. 717, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986).

Petition for review DENIED.