Special Fee Shifting Statute: Where Defendant Voluntarily Compensated Plaintiff After Filing Of Suit, Plaintiff Could Not Claim To Have “Successfully Prosecuted” The Matter For Purposes Of Fees Under The Longshore and Harbor Workers’ Compensation A

Catalyst Theory Was Unavailable Under The Fee-Shifting Statute.

               In Berry v. Air Force Central Welfare Fund, Case No. 23-15551 (9^th Cir. Aug. 29, 2024) (published), plaintiff sued to recover disability benefits from defendant under the Longshore and Harbor Workers’ Compensation Act (Longshore Act).  After suit was filed, defendant voluntarily paid all the compensation plaintiff was owed.  Plaintiff sought attorney’s fees under section 928 of the Act, 33 U.S.C. § 928(a), which allows a claimant to recover fees incurred “in the successful prosecution of” a Longshore Act claim.

               The district judge denied the fee request, and the Ninth Circuit affirmed.  Because defendant voluntarily paid off the claim, the case was moot, and no judicial relief was obtained by plaintiff.  She argued that the catalyst theory applied to a section 928(a) fee request, but the Ninth Circuit found this theory unavailable given the language of the statute and caselaw construing similar language.