[00:00:00] Speaker 05:
You may proceed whenever you're ready.

[00:00:06] Speaker 03:
Thank you.

[00:00:07] Speaker 03:
May it please the court, I'm Norman Cole.

[00:00:08] Speaker 03:
I'm representing Petitioner Eric Dupree.

[00:00:11] Speaker 03:
I'd like to reserve five minutes of the balance of unused time for rebuttal.

[00:00:16] Speaker 03:
Dupree and his staff devoted nearly 183 hours of their time from March 2011 to November 2013 in activities that supported and advanced Thompson's claims.

[00:00:27] Speaker 03:
He also paid more than $8,300 in costs on behalf of the claimant.

[00:00:32] Speaker 03:
We're here to ask the court to order the AOJ and the district director to consider Dupree's fee applications on the merits, determine the amount Dupree should be paid, and order the employers and carriers to pay the awarded fees and costs directly to Dupree.

[00:00:49] Speaker 03:
In October of 2013, Dupree filed a motion to withdraw as counsel

[00:00:54] Speaker 03:
and the court approved that withdrawal in January of 2014.

[00:00:59] Speaker 03:
Sometime thereafter, the claimant retained Walsh as his attorney and Walsh negotiated a settlement of Thompson's claims.

[00:01:06] Speaker 03:
Neither the AOJ nor defense attorneys gave Dupree notice of the proposed settlement.

[00:01:12] Speaker 03:
The AOJ approved the settlement in 2015 and Dupree was not served with a copy.

[00:01:15] Speaker 01:
And did Mr. Dupree at that point ... Mr. Cole, can you hear me?

[00:01:19] Speaker 03:
Yes, I can.

[00:01:20] Speaker 01:
Did Mr. Dupree appeal the approval order from the ALJ approving the settlement?

[00:01:28] Speaker 03:
He did not.

[00:01:28] Speaker 03:
He had no notice of the settlement.

[00:01:33] Speaker 01:
I thought you just said that the notice was provided about the settlement.

[00:01:38] Speaker 03:
No, no, it was not.

[00:01:40] Speaker 03:
He had no notice of the settlement.

[00:01:42] Speaker 03:
He had withdrawn as attorney.

[00:01:44] Speaker 03:
Walsh became the new attorney.

[00:01:46] Speaker 03:
Walsh negotiated a settlement.

[00:01:47] Speaker 04:
Hold on, but I thought that he had received a copy of the director's statement of the position relating to the pending settlement in November of 2015.

[00:01:57] Speaker 04:
Is that not correct?

[00:02:00] Speaker 03:
No.

[00:02:01] Speaker 03:
So he received the director's statement two days after the judge approved

[00:02:09] Speaker 03:
the order, issued an order approving the settlement.

[00:02:13] Speaker 04:
So he did receive that?

[00:02:17] Speaker 03:
I can't say he didn't receive it, but he received it two days after the order was approved.

[00:02:20] Speaker 03:
But the director's statement was sent to two of the three defense attorneys and to Walsh, and all it did was say that if there is a Section 8i settlement agreement, then employer carriers cannot obtain section, second injury relief under Section

[00:02:39] Speaker 03:
It said nothing about the terms of the agreement or the- He was aware that there was, in fact, a settlement.

[00:02:47] Speaker 01:
I mean, the question that I'm trying to get at here is, if he's provided notice through the director's statement about the settlement, then his failure to appeal that makes this action a collateral attack of that settlement agreement.

[00:03:02] Speaker 03:
No, he wasn't a party to the agreement, and the court did not serve him with the

[00:03:09] Speaker 03:
any notice telling him that he should appear or file a fee application.

[00:03:14] Speaker 03:
This came directly from the solicitor's office to him and two of the three attorneys without anything going to the court and without the court sending anything to Dupree.

[00:03:26] Speaker 05:
Regardless of who sent it or how or what it said, it alerted him to a settlement and he did nothing about it.

[00:03:32] Speaker 05:
He did not go and inquire what are the terms of the attorney's fees part of this settlement.

[00:03:40] Speaker 03:
He did not at that time, but that's irrelevant.

[00:03:43] Speaker 03:
Well, why?

[00:03:43] Speaker 05:
Why is that irrelevant?

[00:03:45] Speaker 03:
It's irrelevant for a number of reasons.

[00:03:48] Speaker 03:
First, he had not been given notice or opportunity to appear with respect to provisions of that agreement that would deprive him.

[00:03:57] Speaker 01:
What authority do you have to suggest that that was a requirement, that somehow receiving notice of the settlement

[00:04:06] Speaker 01:
is not sufficient to provide him the information that would require him to then either ask for more information or to challenge or object to the terms of the settlement.

[00:04:16] Speaker 01:
What is your authority for this action, which is essentially a collateral attack on a final settlement agreement?

[00:04:26] Speaker 03:
Well, the settlement agreement, if he didn't have notice or opportunity to appear because he had withdrawn with permission of the court,

[00:04:35] Speaker 03:
then he didn't have any obligation to do anything in response to the order that was issued without any notice on his behalf.

[00:04:43] Speaker 03:
You have to look.

[00:04:43] Speaker 04:
Council, with all due respect, they're not answering the question.

[00:04:47] Speaker 04:
The question is, what authority?

[00:04:49] Speaker 04:
What authority?

[00:04:51] Speaker 03:
Well, we've cited a denial of due process under the Constitution in our brief at page 21.

[00:04:56] Speaker 03:
And if you'll permit me, I can provide additional information now as to

[00:05:03] Speaker 03:
the terms of the order itself, which was without basis of law and could not deprive him of an opportunity to appear.

[00:05:11] Speaker 03:
That settlement agreement that was approved really had two parts, two subjects.

[00:05:17] Speaker 03:
One of them was under Section 8I, it dealt with the claimant's entitlement to compensation.

[00:05:22] Speaker 03:
The other provision in that had to do with attorney fees.

[00:05:26] Speaker 03:
And attorney fees are under Section 928, and under the rules and regulations,

[00:05:32] Speaker 03:
those attorney fees must be approved by the administrative law judge or the district director and paid directly to the attorney.

[00:05:42] Speaker 03:
The judge in this case, Dupree did not send in an application because he didn't know he had been notified.

[00:05:50] Speaker 01:
There was no rule.

[00:05:50] Speaker 01:
Right, but Walsh negotiated an amount that would be paid to Dupree.

[00:05:55] Speaker 01:
That was part of the settlement where attorney Walsh negotiated and agreed to some

[00:06:00] Speaker 01:
cut of the fees for Dupree's work and for his own work, correct?

[00:06:05] Speaker 03:
No.

[00:06:05] Speaker 03:
Well, Walsh never contacted Dupree and attained his consent.

[00:06:09] Speaker 03:
And even if he had, that provision would have been completely illegal because the statute says that attorney fees must be paid directly to the attorney after the order is entered.

[00:06:19] Speaker 03:
It can't outsource this to a third party like Walsh.

[00:06:24] Speaker 03:
And of course, Dupree knew nothing

[00:06:26] Speaker 03:
doing nothing about this.

[00:06:29] Speaker 05:
Could Dupree have filed a lien for attorney's fees before he withdrew?

[00:06:36] Speaker 03:
There is no statute, rule, or order that requires an attorney who withdraws to file a so-called lien.

[00:06:45] Speaker 03:
There's nothing in the statute that speaks to attorney fee liens in the way that respondents talk about it.

[00:06:51] Speaker 03:
In fact, the OALJ has said,

[00:06:55] Speaker 03:
that former District Judge Park has said that if there is no active case, the OALJ will not even receive for filing a so-called attorney fee lien.

[00:07:04] Speaker 03:
So there is no provision in that.

[00:07:06] Speaker 05:
Well, there was an active case when he withdrew.

[00:07:08] Speaker 05:
He withdrew as counsel.

[00:07:10] Speaker 05:
Before he did that, he may not have been required to file a lien, but could he have filed a lien?

[00:07:18] Speaker 03:
No, he could have prepared a statement of his time.

[00:07:25] Speaker 03:
He could have sent it to the judge.

[00:07:27] Speaker 03:
Whether it had any legal effect or import is unknown because there is no statute, rule, or regulation that would have required him to do that.

[00:07:37] Speaker 03:
He can't be faulted for failing to do something that is not required for him to be done.

[00:07:43] Speaker 03:
There's no history in a longshore case law that says an attorney who doesn't file a so-called attorney fee lien somehow is never entitled to payment of a fee.

[00:07:54] Speaker 03:
This, you know, Walsh, remember, never intended to pay Dupree a dime.

[00:08:00] Speaker 04:
So, but under your analysis then, at any point when that case settles in the future, at any point, he would be entitled to an amount, correct?

[00:08:10] Speaker 03:
Well, he would be entitled to have the administrative law judge or the district directors, the case may be, consider his application for fees and then

[00:08:19] Speaker 03:
issue an appropriate order.

[00:08:21] Speaker 04:
Right, at any point, five years down the line.

[00:08:25] Speaker 04:
Is that right?

[00:08:27] Speaker 03:
Currently, that's correct.

[00:08:28] Speaker 03:
Now, nothing stops the Office of Administrative Law Judges from issuing a rule that says that if you withdraw as attorney, you have 60 days to file your fee petition, or nothing would have stopped the Administrative Law Judge when you approve withdrawal to say, well, then send in your fee petition within 60 days.

[00:08:48] Speaker 03:
nothing would have stopped the administrative law judge from saying, hey, Dupree, I'm considering this 8i agreement.

[00:08:54] Speaker 03:
I know you were the attorney previously.

[00:08:56] Speaker 03:
Send me your fee petition.

[00:08:57] Speaker 03:
In fact, the administrative law judge is required to consider fee applications, itemizing all of the work that was done, that it was reasonable, it was necessary, the time, justifying the hourly rate.

[00:09:11] Speaker 03:
He's required to do that, but he didn't because

[00:09:15] Speaker 03:
He didn't send anything to, he didn't send anything to him.

[00:09:18] Speaker 01:
Mr. Cole, can I take you back to one of the statements you made a few moments ago in response to my question, where you are suggesting that the second part of the settlement agreement actually violates the express terms of the act because the language states that the payment must be made directly to the attorney.

[00:09:36] Speaker 01:
Did I hear you correctly?

[00:09:38] Speaker 01:
Yes.

[00:09:38] Speaker 01:
That's one reason.

[00:09:39] Speaker 01:
Can you point me to the exact spot in the regulation, the statute that you're referring to that sets forth- It's section 928A.

[00:09:49] Speaker 03:
I think everybody concedes that a fee was due under section 928A.

[00:09:53] Speaker 03:
In fact, respondents certainly agreed that

[00:09:59] Speaker 01:
Right, okay, no, no, but what I'm getting at is the language I think that you're, it's the very last sentence I think you're relying on that says, the board or court, as the case may be, which shall be paid directly by the employer or carrier to the attorney for the claimant in a lump sum after the compensation order becomes final.

[00:10:17] Speaker 01:
Is that the language you're relying on?

[00:10:19] Speaker 01:
Yes, yes.

[00:10:20] Speaker 01:
Okay.

[00:10:20] Speaker 01:
And so that language is talking about payment directly by the employer or carrier to the attorney for the claimant.

[00:10:26] Speaker 01:
And that person was Mr. Walsh, correct?

[00:10:29] Speaker 03:
At the time, it was Mr. Walsh.

[00:10:31] Speaker 03:
Previously, it was Mr. Dupree.

[00:10:33] Speaker 03:
And prior to that, it was Mr. Klein.

[00:10:36] Speaker 03:
So Mr. Klein didn't appeal a prior order that said he wasn't entitled to fees because all of his services were done at the OWCP level, and the judge said, I don't have jurisdiction to award fees for OWCP level services.

[00:10:55] Speaker 03:
But when he got to Mr. Dupree,

[00:10:57] Speaker 03:
whose services were both at OWCP and OALJ level, he said, well, the order, prior order said once payment to Walsh, no additional attorney fees are owed.

[00:11:08] Speaker 03:
That was the sole reason why the judge and then the board thought that Dupree was not entitled to a fee.

[00:11:17] Speaker 03:
But the underlying order itself was issued lawlessly.

[00:11:21] Speaker 03:
There was no authority to issue an award

[00:11:25] Speaker 03:
awarding or denying fees to an attorney who was not a party to the matter, who was not a representative of the party.

[00:11:33] Speaker 03:
Now, you can argue about, well, he could have maybe corrected the situation by filing something earlier.

[00:11:38] Speaker 03:
He didn't, but that can't be held against him because there was no statute, rule, or order that required him to do it.

[00:11:48] Speaker 03:
How can he be late if there is no deadline set?

[00:11:52] Speaker 03:
Four years?

[00:11:53] Speaker 03:
Okay.

[00:11:54] Speaker 03:
That's just the way it is.

[00:11:56] Speaker 03:
Let the administrative process, let the Office of Administrative Law judges issue a new rule that says, here's your deadline if you withdraw.

[00:12:05] Speaker 03:
Let the judge who approves withdrawal issue an order in the approval of the withdrawal saying, if you want a fee, give me your fee petition in 60 days.

[00:12:16] Speaker 03:
That didn't happen.

[00:12:19] Speaker 03:
If he's not required to do something,

[00:12:22] Speaker 03:
he can't be faulted for not doing it.

[00:12:25] Speaker 03:
He obviously provided a useful, probably the most important services on behalf of the claimant, considering how much Mr. Walsh ultimately agreed to receive.

[00:12:39] Speaker 03:
I mean, because of a remand, he paid Walsh $18,750 of the $25,000 he received, so clearly

[00:12:48] Speaker 03:
uh, Dupree performed a valuable service and Walsh just tagged along, get a quick settlement, looked for $25,000 and hoped he'd escape with all of it and never have to pay Dupree.

[00:12:59] Speaker 03:
So we're looking for a little justice here, a little opportunity to have the district judge, the district director and the administrative law judge just consider the application on the merits and decide what he should receive.

[00:13:14] Speaker 05:
Otherwise, I think you had wanted to save some time for rebuttal and you only have two minutes left.

[00:13:18] Speaker 05:
So maybe I should pause you here.

[00:13:20] Speaker 03:
Thank you very much.

[00:13:22] Speaker 05:
Let's hear from the other side.

[00:13:25] Speaker 02:
Good morning, Your Honors.

[00:13:26] Speaker 02:
I'm Alan Brackett.

[00:13:27] Speaker 02:
I'm co-counsel for resource, and it's three different carriers involved in these three consolidated claims.

[00:13:35] Speaker 02:
I'm going to talk to you a little bit today about the due process issues, and Mr. Panasello, my co-counsel, will talk about some of the additional issues remaining in this case.

[00:13:48] Speaker 02:
I think it is just disingenuous for Mr. Cole and Mr. Dupree to argue that there was no opportunity for Mr. Dupree to preserve his right to a fee if he thought he was entitled to one.

[00:14:01] Speaker 02:
Your comments are exactly correct.

[00:14:02] Speaker 02:
He voluntarily withdrew from his representation.

[00:14:05] Speaker 02:
The record doesn't contain anything to tell us why, other than in the brief he suggests that the attorney-client relationship failed.

[00:14:14] Speaker 02:
But he voluntarily withdrew.

[00:14:16] Speaker 02:
And even though the statute doesn't mandate a time, the regulations very clearly say that the only way you get a fee is if you apply for them.

[00:14:25] Speaker 02:
And nothing prevented him when he withdrew from filing.

[00:14:28] Speaker 01:
Do you think that the settlement agreement fully complies with the act?

[00:14:33] Speaker 02:
Absolutely it did.

[00:14:34] Speaker 01:
And that it shouldn't have included an itemization of the attorney's fees?

[00:14:38] Speaker 02:
It didn't necessarily need to.

[00:14:40] Speaker 02:
And there are two issues there.

[00:14:45] Speaker 02:
Claimant argues that it was unlawful, he said lawlessly, for the administrative law judge to make a ruling on fees for services performed before the Office of Workers' Compensation programs.

[00:14:58] Speaker 02:
By consent of the parties, an administrative law judge can resolve all fees, regardless of what level they occur at.

[00:15:07] Speaker 02:
He could, on remand, handle the fees from the BRB.

[00:15:10] Speaker 02:
and the OALJ and the district director's office.

[00:15:15] Speaker 02:
That happens routinely.

[00:15:16] Speaker 02:
Nothing in the act prevents him from doing that, and that's what happened in this case.

[00:15:21] Speaker 02:
There was an allocation of fees.

[00:15:22] Speaker 02:
It was negotiated by the parties.

[00:15:24] Speaker 02:
The parties were Mr. Thompson, who was the injured worker, and his employer and its carriers.

[00:15:31] Speaker 02:
So it was absolutely lawful.

[00:15:34] Speaker 04:
Your argument earlier, as I understood it, is that there was nothing preventing him from submitting his fees.

[00:15:45] Speaker 04:
I hear Mr. Collis saying, well, he never got notice.

[00:15:49] Speaker 04:
He never got notice.

[00:15:51] Speaker 04:
There's no way.

[00:15:52] Speaker 04:
How could he have done that?

[00:15:54] Speaker 02:
When he withdrew, he should have done that, before he withdrew.

[00:15:58] Speaker 04:
Well, but his argument is there's no obligation for him to do that.

[00:16:01] Speaker 02:
There isn't, but if he wants to preserve his fee, he certainly can.

[00:16:05] Speaker 04:
But if there's no deadline for him to submit it at a later point, what's the problem?

[00:16:10] Speaker 02:
Well, the problem is he actually received notice of the settlement, as you pointed out.

[00:16:14] Speaker 02:
He received actual notice from the Solicitor of Labor acting on behalf of the Director for OWCP.

[00:16:23] Speaker 02:
A settlement has been issued.

[00:16:25] Speaker 02:
That should give him notice that if he's going to seek a fee, he should have done something then, before that order became final on December 17th of 2015.

[00:16:36] Speaker 02:
And nothing stopped him from doing it then.

[00:16:40] Speaker 02:
Mr. Cole kind of brushes past that, but that's critically important in this case.

[00:16:45] Speaker 02:
He had actual notice from the Department of Labor that the case had been settled.

[00:16:49] Speaker 02:
The reason he wasn't served with the order is because he voluntarily withdrew his representation and in addition asked that he be removed from the service sheet, which he did in 2014.

[00:17:01] Speaker 02:
Had he not done that, he would have continued to be served with any notices from the Department of Labor.

[00:17:11] Speaker 02:
The other issues of due process.

[00:17:14] Speaker 02:
First, I contend that due process was not properly raised as an issue before the court.

[00:17:20] Speaker 02:
It wasn't mentioned in any of the petitions for review before the benefits review board.

[00:17:25] Speaker 02:
But even if you come and consider that issue, it simply doesn't do anything based on the facts.

[00:17:31] Speaker 02:
He had actual notice.

[00:17:33] Speaker 02:
He had the opportunity to be heard.

[00:17:35] Speaker 02:
In addition to which, he had the opportunity for the

[00:17:40] Speaker 02:
administrative law judge to consider whether he was entitled to a fee.

[00:17:45] Speaker 02:
We don't know anything about the negotiations that happened between Mr. Walsh and Mr. Dupree.

[00:17:51] Speaker 02:
We don't know why they agreed to the allocation that they did, but they submitted that to the administrative law judge who handled the original settlement, who retained jurisdiction to consider the attorney fee issue, and he approved the allocation that they submitted to him.

[00:18:09] Speaker 02:
So it's also

[00:18:11] Speaker 02:
in my mind, you don't even have to get to the issue.

[00:18:14] Speaker 02:
He's actually received a fee that an administrative law judge found was of value and included both the services before OWCP and OALJ.

[00:18:30] Speaker 02:
Just want to make sure on the due process issue that we pay attention to what was actually claimed by Mr. Dupree in his submissions below because

[00:18:39] Speaker 02:
He suggested that the 8i order was, today he said lawless, and before the BRB he said contrary to law, but there's nothing contrary to law.

[00:18:51] Speaker 02:
The act provides in 8i that the parties, again, the parties were Mr. Thompson, the entered worker, the employer, resource, and now Serco, and its three carriers.

[00:19:03] Speaker 02:
They were the parties.

[00:19:04] Speaker 02:
With the representation of counsel,

[00:19:06] Speaker 02:
He negotiated on the merits what his claim was worth.

[00:19:10] Speaker 02:
The parties, the employers, and carriers agreed to pay compensation to Mr. Thompson, and at the same time negotiated an agreed fee, which was approved pursuant to the regs, became final, and there is nothing in the act that allows this court to vacate an already final compensation order years later.

[00:19:36] Speaker 02:
It's suggested by the claimant that you can leave intact the award of compensation to Mr. Thompson, but somehow void the order with respect to fees.

[00:19:47] Speaker 02:
The act doesn't allow that anywhere.

[00:19:50] Speaker 02:
There's no basis in the law.

[00:19:51] Speaker 02:
I can find no case in the 100-year history almost of the Longshore Act where that's ever been allowed.

[00:19:59] Speaker 02:
Once a compensation order is final, it's final.

[00:20:02] Speaker 02:
I think the court's exactly correct.

[00:20:05] Speaker 02:
It's a collateral attack.

[00:20:06] Speaker 02:
There's no basis in law for it.

[00:20:09] Speaker 02:
There's no basis for any of the due process arguments because there was actual notice to Mr. Dupree, and he failed to exercise his rights timely.

[00:20:18] Speaker 02:
It's plain and simple.

[00:20:22] Speaker 02:
That's all I have.

[00:20:23] Speaker 02:
Thank you, Your Honors.

[00:20:23] Speaker 05:
Thank you.

[00:20:30] Speaker 00:
Good morning.

[00:20:31] Speaker 00:
May it please the court, Barry Ponticello, also on behalf of the respondents.

[00:20:36] Speaker 00:
I echo what Mr. Brackett indicated here today, and I'm going to address a few discrete issues that I think may be of assistance.

[00:20:45] Speaker 00:
We need to look at how we got here today.

[00:20:47] Speaker 00:
We have two denied cases and one case in which a limited amount of medical was provided and then the remainder was disputed.

[00:20:55] Speaker 00:
Under 928A, a claim for fees would arise.

[00:20:59] Speaker 00:
If a claim was denied and then a successful prosecution took place that rendered benefits, that did not occur.

[00:21:08] Speaker 00:
Under Section 28B, if it was an admitted injury and additional compensation was gained by successful prosecution, there would be an ability to have fees.

[00:21:18] Speaker 00:
None of that happened here, and it's important to note that.

[00:21:23] Speaker 00:
Even if we look at page 15 to 17 of claimant's own brief about what they claim to be the benefit that was rendered by Dupree, it ranged from setting medical exams, discovery disputes, objecting to the timing of various appointments, and preparing for depositions.

[00:21:42] Speaker 00:
None of those qualify as successful prosecution under 928A or B.

[00:21:48] Speaker 00:
That then leads us to 928C, which is the lien.

[00:21:51] Speaker 00:
And the court has correctly pointed out there was nothing prohibiting Dupree from filing a lien at any time.

[00:21:59] Speaker 00:
And 928C, it's important to note, talks about a lien that the court, the judge, needs to consider about any lien on compensation or a pool of benefits.

[00:22:11] Speaker 00:
It's exactly what we had here.

[00:22:13] Speaker 00:
In the settlement agreement, it was allowed, and Walsh actually preserved the untimely rights of Dupree.

[00:22:20] Speaker 00:
And I would assert to the court that under 928C, if

[00:22:25] Speaker 00:
an attorney wants to file a request for fees either a petition under A or B or a lien under C, it needs to be done before the compensation order issues.

[00:22:34] Speaker 00:
That was not done here.

[00:22:36] Speaker 00:
And so what we're looking at is basically the issue the court raised about finality and the collateral attack.

[00:22:44] Speaker 00:
And what we have here is the BRB correctly determined that there was a final compensation order and no appeal on it.

[00:22:52] Speaker 00:
That order is final and the BRB said they had no jurisdiction to address any attack on that order.

[00:22:59] Speaker 00:
I believe that's correct and the court should also find that any such request should be dismissed.

[00:23:05] Speaker 00:
The ADI order was within the authority of the ALJ to address and to address both the compensation of fees which were done.

[00:23:17] Speaker 00:
I would assert to the court that the BRB was correct and that the jurisdiction did not lie to attack it.

[00:23:23] Speaker 00:
It was untimely.

[00:23:24] Speaker 00:
If the court, however, is inclined to set a standard here, I think it needs to look at what the effect and what the court raised.

[00:23:32] Speaker 00:
Could it be done at any time?

[00:23:34] Speaker 00:
Could it be done at five years?

[00:23:35] Speaker 00:
Could it be done at 20 years?

[00:23:37] Speaker 00:
That's impracticable.

[00:23:38] Speaker 00:
Finality is one of the things the parties seek in a settlement, in a negotiated settlement

[00:23:44] Speaker 00:
is finality that this settlement ends all of the disputes.

[00:23:49] Speaker 01:
If there is an attorney... But if he's done, if the settlement agreement was unlawful, if it was void as a matter of law... But it was not unlawful.

[00:23:57] Speaker 01:
I'm just asking you.

[00:23:58] Speaker 01:
You would agree that there is no real timeline that would need to be set in place by this court if there was a general rule, as I think it is, which is that a settlement agreement, if not appealed,

[00:24:10] Speaker 01:
in a timely way can be undone later if it's void as a matter of law, right?

[00:24:15] Speaker 00:
I would say anything that's void as a matter of law can be considered by the court, but we don't, I think it's important to note we don't have that here.

[00:24:20] Speaker 01:
Right, so isn't it enough to just stop there that the fact that this was not appealed in a timely way, there doesn't need to be some additional test.

[00:24:31] Speaker 01:
I think the test can be that if it's not timely appealed, anything thereafter is a collateral attack unless you're arguing that it is void as a matter of law.

[00:24:40] Speaker 00:
I would not bicker with that at all.

[00:24:42] Speaker 00:
I think that's correct.

[00:24:43] Speaker 00:
I was just trying to point the court to the impractical assertion of Dupree in this case that even though they withdrew, they didn't seek a fee, they didn't file a lien, all of which within their control, even though they had notice that they have forever to do that, which would fly in the face of finality.

[00:25:02] Speaker 00:
And this case has three attorneys.

[00:25:04] Speaker 00:
Many of these longshore cases have multiple attorneys.

[00:25:07] Speaker 00:
The process,

[00:25:09] Speaker 00:
And that they're indicating here is that we would need to chase down all of these old attorneys who have not filed a lien, who have not pursued their rights, who have waived their rights.

[00:25:17] Speaker 00:
And so I agree that once a compensation order is final, that is where it should end.

[00:25:21] Speaker 00:
But the practical realities of it also speak to it in the absurdity of the proposition that's being made.

[00:25:30] Speaker 00:
So are there any other questions?

[00:25:34] Speaker 00:
Thank you, Your Honor.

[00:25:35] Speaker 05:
Thank you.

[00:25:36] Speaker 05:
I think we have two minutes for rebuttal.

[00:25:39] Speaker 03:
Thank you, Your Honor.

[00:25:41] Speaker 03:
We're not seeking to set aside the original order approving the settlement as to the claimant.

[00:25:49] Speaker 03:
That was under Section 8i.

[00:25:50] Speaker 03:
No problem.

[00:25:51] Speaker 03:
You can keep his money.

[00:25:52] Speaker 03:
We're not contending that Wall shouldn't be paid at all.

[00:25:57] Speaker 03:
He apparently filed a fee application of some sort.

[00:26:00] Speaker 03:
He could be paid.

[00:26:01] Speaker 03:
What we are here to do is to ask the court to allow Dupree to have his fees determined

[00:26:09] Speaker 03:
by the district director or the administrative law judge, and arguing that that agreement cannot and did not prohibit Dupree from receiving any fees.

[00:26:18] Speaker 03:
Now, I heard it was said about the director's statement.

[00:26:23] Speaker 03:
Let's look at that for a moment.

[00:26:24] Speaker 03:
That statement was issued on November 17, 2015, the ALJ issued an order approving settlements, and on November 20,

[00:26:36] Speaker 03:
the associate solicitor of labor sent to Pree and the two other defense attorneys a statement of position about proposed settlements.

[00:26:43] Speaker 03:
I guess he didn't even know that it had been approved.

[00:26:46] Speaker 03:
The statement of position that he offered said, if you have an ADI agreement, you don't get Section 8F relief.

[00:26:53] Speaker 03:
That's a correct statement of law.

[00:26:54] Speaker 03:
It says nothing whatsoever about the details of the agreement.

[00:27:00] Speaker 03:
or any provisions regarding attorney fees.

[00:27:02] Speaker 03:
It doesn't give any notice to Dupree that he should do something, and it didn't come from the court, so the court still had no jurisdiction over him.

[00:27:12] Speaker 05:
Could Dupree just separately sue Walsh?

[00:27:17] Speaker 03:
No.

[00:27:18] Speaker 05:
Why not?

[00:27:23] Speaker 03:
Because the fee he wants to get is from the employers and carriers pursuant to the statute.

[00:27:31] Speaker 03:
And that's the remedy that he chose, which we hope this court will agree with that.

[00:27:41] Speaker 03:
So the judge could award fees to Walsh but not to Dupree because the court had no jurisdiction over the person of Dupree, and he was not required by any statute, rule, or order

[00:27:55] Speaker 03:
to file any sort of a fee petition before the time he actually filed it.

[00:27:59] Speaker 03:
When would it have been timely?

[00:28:00] Speaker 05:
Are they saying?

[00:28:01] Speaker 05:
You're over your time now, so I think I have to cut you off.

[00:28:03] Speaker 05:
Thank you very much, both sides, for the helpful arguments.

[00:28:05] Speaker 05:
This case is submitted.

[00:28:07] Speaker ?:
Thank you.