Eric Dupree v. Resource Consultants

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 22 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ERIC A. DUPREE, former attorney for No. 22-70021 Claimant, BRB No. 20-0106 Petitioner, v. MEMORANDUM* RESOURCE CONSULTANTS; et al., Respondents, CHARLES THOMPSON, Real Party in Interest. ERIC A. DUPREE, former attorney for No. 22-70046 Claimant, BRB Nos. 20-0106 Petitioner, 21-0573 v. RESOURCE CONSULTANTS; et al., Respondents, CHARLES THOMPSON, Real Party in Interest. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. - ERIC A. DUPREE, No. 23-2050 Petitioner, BRB No. 20-0106 v. DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS; RESOURCE CONSULTANTS; CONTINENTAL INSURANCE COMPANY/CNA INTERNATIONAL; TRAVELERS CASUALTY INSURANCE COMPANY; SERCO, INC.; AIG CHARTIS INSURANCE COMPANY, Respondents, CHARLES THOMPSON, Real Party in Interest. On Petition for Review of an Order of the Benefits Review Board Submitted July 8, 2024** San Francisco, California Before: FRIEDLAND, MENDOZA, and DESAI, Circuit Judges. Eric Dupree petitions for review of two Benefits Review Board (“Board”) decisions affirming the denial of his petitions for attorneys’ fees for representing a ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 claimant seeking workers’ compensation under the Longshore and Harbor Workers’ Compensation Act. Dupree’s counsel, Norman Cole, also petitions for review of the Board’s denial of his motion for fees for representing Dupree in connection with Dupree’s petitions for fees before the agency. We deny the petitions. 1. After Dupree withdrew from representation, the claimant settled his claims with the employers and carriers under the Act. See 33 U.S.C. § 908(i). Those settlement agreements extinguished the employers’ and carriers’ liability for the claims and for related attorneys’ fees, and also provided that the claimant’s current counsel would allocate fees to Dupree for the work he performed before he withdrew. The administrative law judge (“ALJ”) approved the agreements. See id. § 908(i)(3); 20 C.F.R. § 702.132(c). Dupree did nothing to assert or protect his interests at that time, even though he had notice of the impending settlements. Over three years later, Dupree filed motions for attorney’s fees before the ALJ and the Director of the Office of Workers’ Compensation Programs for work done before the claims settled. Dupree cannot collaterally attack the final settlement agreements by appealing his separate motions for fees. See 33 U.S.C. § 921(a) (stating compensation orders become final after 30 days); Downs v. Dir., OWCP, U.S. Dep’t of Labor, 803 F.2d 193, 199 n.13 (5th Cir. 1986) (explaining that, because the settlement agreement was final, “the ALJ’s authority, while open to attack on direct appeal, cannot be challenged in this collateral proceeding”). 3  2. Nor is Cole entitled to recover fees from the employers and carriers because the settlement agreements extinguished the employers’ and carriers’ liability for future attorneys’ fees. See Downs, 803 F.2d at 199 n.13. PETITION DENIED. 4