Porter v. Kessner

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 27, 2001
• Docket: 00-31396
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-31396 Summary Calendar

JOHN E. PORTER

Plaintiff - Appellant

v.

ROBERT C KESSNER; ELTON JOHN BAIN; KESSNER, DUCA, UMEMAYASHI, BAIN & MATSUNAGA; AIU NORTH AMERICAN; JAMES CURREN; JOHNSON CONTROLS WORLD SERVICES; DYNCORP; INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA; OFFICE OF WORKERS COMPENSATION PROGRAM, Director

Defendants - Appellees

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 00-CV-1537 - - - - - - - - - - July 27, 2001 Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit Judges.

PER CURIAM:*

John E. Porter appeals the district court’s dismissal of his

complaint alleging that the settlement agreement reached under

the provisions of the Longshore and Harbor Workers’ Compensation

Act (LHWCA), as extended by the Defense Base Act, was procured

under duress, was inadequate as a matter of law, and was not

supported by substantial evidence. See 33 U.S.C. §901 et seq.;

42 U.S.C. § 1651 et seq. He also challenged the LHWCA’s attorney

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-31396 -2-

fee provisions at 33 U.S.C. § 928 and alleged that the defendants

defamed him by filing false documents and information with the

FBI. The district court dismissed Porter’s complaint for lack of

subject-matter jurisdiction, concluded that the LHWCA did not

prohibit claimants from procuring counsel, and dismissed without

prejudice Porter’s state law claim for defamation.

On appeal, Porter argues that his challenge to the

settlement agreement has not been examined on its merits and that

the LHWCA’s attorney fee provisions severely limit his ability to

contract with counsel. Porter also challenges the district

court’s award of costs to the defendants pursuant to Fed. R. Civ.

P. 54(d)(1). Porter does not address in his brief the district

court’s decision not to exercise supplemental jurisdiction over

his state law claims. Thus, the issue is waived. See Carmon v.

Lubrizol Corp., 17 F.3d 791, 794 (5th Cir. 1994).

The district court properly dismissed Porter’s complaint for

lack of subject-matter jurisdiction. He settled his LHWCA claim

and sought review of the ALJ’s 33 U.S.C. § 908(i) settlement

order with the Benefits Review Board and the United States Court

of Appeals for the Ninth Circuit. The district court had no

jurisdiction under the LHWCA to review his settlement agreement

further. See 33 U.S.C. § 921; Fontenot v. AWI, Inc., 923 F.2d

1127, 1133 (5th Cir. 1991)(LHWCA provides the exclusive remedy

for workers within its scope). Likewise, his alleged inability

to obtain the services of an attorney under the LHWCA’s

provisions is not cognizable. Because the defendants prevailed,

the district court did not abuse its discretion when it granted No. 00-31396 -3-

costs to the defendants pursuant to Fed. R. Civ. P. 54(d)(1).

See Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 536

(5th Cir. 1999). Accordingly, the district court’s judgment is

AFFIRMED.