You take a Defense Base Act claim after another firm turned it down. The carrier denied compensation outright, your client had a documented overseas injury, and after eighteen months of work you win an award at the OALJ. Then the fee fight starts. The carrier argues your fee should come out of your client's compensation, not the carrier's pocket.
Your client, already stretched thin, stands to lose a chunk of a hard-won award to pay you. That fight is governed by Section 28 of the Longshore and Harbor Workers' Compensation Act, codified at 33 U.S.C. 928. The Defense Base Act incorporates the LHWCA's compensation and fee provisions through 42 U.S.C. 1651(a), so every DBA claim runs on these same rules.
Section 28 answers one question that decides whether your client keeps their full award: who pays the attorney fee. There are two ways the fee shifts onto the employer and its carrier. One applies when the carrier refuses to pay anything. The other applies when the carrier pays some compensation but fights over the rest.
Miss the procedural triggers for either path and the fee reverts to a lien against your client's benefits. Attorneys lose fee shifting not because they lost the case, but because they did not build the record the statute demands. This guide walks both paths, the deadlines that control them, and the documentation that separates a shifted fee from one your client absorbs. It also shows why identifying the exact carrier early changes how you litigate the fee.
What Does Section 28 Do in a Defense Base Act Fee Dispute?
Section 28 is the fee-shifting engine of the Longshore Act. Under 33 U.S.C. 928, an attorney fee can move from your client's award onto the employer and carrier, but only when specific conditions are met. The Defense Base Act adopts this framework wholesale through 42 U.S.C. 1651(a). Nothing about overseas work changes the mechanics.
The default rule matters as much as the exception. When a fee is not shifted, 33 U.S.C. 928(c) makes it a lien on the compensation payable to your client. In plain terms, your fee comes out of their benefits. Fee shifting is what protects the award you just won from being eaten by the cost of winning it.
Two statutory paths shift the fee. The first, Section 28(a), applies when the carrier declines to pay any compensation. The second, Section 28(b), applies when the carrier pays or tenders something and then disputes the rest. Each path has its own triggers, its own deadlines, and its own proof requirements. They are not interchangeable, and pleading the wrong one is a common way to lose a fee petition.
Both paths share one core requirement: successful prosecution. The phrase comes straight from the statute. Your client must actually obtain compensation through your services, and the amount recovered must exceed what the carrier was willing to pay. The whole doctrine of LHWCA Section 28 attorney fee shifting successful prosecution liability turns on whether you produced a result the carrier would not give voluntarily.
There is also a gatekeeping rule attorneys forget. No fee is enforceable unless the adjudicating body that handled the work approves it. Under 20 CFR 702.132, a fee application goes to the district director, administrative law judge, Board, or court before which the services were performed. Charging or collecting an unapproved fee is a misdemeanor under 33 U.S.C. 928(e). Approval is level-specific, so a single global fee request will not survive.
When Does Section 28(a) Shift Fees Onto the Carrier?
Section 28(a) is the outright-denial path. It applies when the employer and carrier decline to pay any compensation within 30 days after receiving written notice of the claim from the OWCP district director. If the carrier pays nothing and you then win, the fee shifts.
- Written notice of the claim reaches the employer through the district director
- The carrier declines to pay any compensation within the 30-day window
- Your client retains counsel to pursue the claim
- Successful prosecution follows, meaning your client obtains compensation
The 30-day clock is the linchpin. It runs from the carrier's receipt of the district director's written notice, not from the injury and not from your client's first call to your office. Docket that date. A carrier that pays a single dollar of compensation inside the window can try to push the dispute out of 28(a) and into the more demanding 28(b) track.
Denial is not a dead end for your fee; it is the trigger for shifting it. When a carrier refuses the claim outright, the same refusal that forces you to litigate also sets up 28(a) liability. Understanding the exact steps that follow a DBA carrier's denial helps you preserve the record that proves the carrier paid nothing during the statutory period.
Section 28(a) liability is separate from other carrier penalties, and you can pursue them together. A late or absent payment can also expose the carrier to additional assessments. The interplay between fee shifting and Section 14 penalties for late compensation payment gives you two independent levers when a carrier stonewalls a valid claim.
Courts read the any-compensation language strictly. Paying medical benefits alone, without disability compensation, has been treated differently from paying indemnity, and the distinction can decide which path applies. Build your record to show precisely what the carrier paid, when, and under what label, so the tribunal can place the dispute in 28(a) rather than 28(b).
The fee under 28(a) must still be reasonable and approved by the adjudicating body. The carrier can contest the hours, the rate, and the necessity of specific work, even after conceding that shifting applies. Successful prosecution opens the door; a well-documented fee petition walks through it.
How Does Section 28(b) Work When the Carrier Already Paid Something?
Section 28(b) governs the harder, more common scenario. The carrier accepts the claim and pays some compensation, then a controversy develops over how much more your client is owed. This is the partial-payment path, and it carries a stricter set of procedural gates than 28(a).
The statute lays out a sequence. When a controversy develops over additional compensation, the district director or Board sets the matter for an informal conference. Following that conference, the district director or Board issues a written recommendation on how to resolve the dispute. Each step is a prerequisite, not a suggestion.
What happens next decides the fee. If the carrier refuses to accept the written recommendation, it has 14 days to pay or tender the recommended amount. If your client then rejects that tender, retains you, and ultimately recovers more than the carrier was willing to pay, the fee shifts to the carrier. The greater-recovery requirement is the second half of successful prosecution.
The informal conference is where many 28(b) claims are won or lost. It is not a formality you can skip on the way to a hearing. Knowing what to expect from the OWCP informal conference process lets you steer toward a written recommendation that frames the carrier's exposure and sets up your fee.
Timing and paper control everything here. You need a clear record that a controversy existed, that a conference occurred, that a written recommendation issued, that the carrier declined it, and that your client recovered more. Missing any link in that chain gives the carrier an argument that 28(b) never attached, no matter how well you did on the merits.
The greater-than-tendered test is measured against what the carrier actually offered, so document every tender in writing. A vague verbal offer is hard to beat and hard to prove. When you pin the carrier to a specific number in the record, you create a clean baseline that your award can exceed.
Practitioners often treat 28(a) and 28(b) as one doctrine, but the difference is decisive. The framework of LHWCA Section 28 attorney fee shifting successful prosecution liability rewards the attorney who matches the facts to the correct subsection and builds the specific record that subsection requires. Under 28(b), that record is procedural before it is substantive.
Why Do So Many Section 28(b) Fee Petitions Collapse?
Understanding LHWCA Section 28 attorney fee shifting successful prosecution liability means understanding why petitions fail, not just when they succeed. The most frequent reason a 28(b) fee petition fails has nothing to do with the quality of the representation. It fails because the informal conference and written recommendation did not happen the way the statute requires. Carriers know this, and they litigate the procedural gap aggressively.
Federal circuits have divided on how strictly to read the written-recommendation requirement. Some courts treat a written recommendation issued after an informal conference as a hard prerequisite for 28(b) fee liability. Others have been more flexible about what satisfies the statute. Because the DBA is litigated across multiple circuits, the controlling rule can depend on where your case sits.
That split is not academic. If your case arises in a jurisdiction that demands a formal written recommendation, an informal phone discussion with the district director will not shift the fee. You must secure an actual written recommendation, on the record, before the carrier's refusal can trigger liability. Plan the informal conference with the fee statute in mind, not just the merits.
The dispute then moves into formal adjudication, and the way it resolves shapes the fee. Following how DBA carrier disputes move through the OALJ process shows where each fee-triggering event has to be documented, from the district director level up through any appeal.
Documentation of your own time is the second failure point. Even when shifting clearly applies, the adjudicator must find the fee reasonable. Block billing, vague entries, and time that looks duplicative all get cut. The habits that produce a fee petition that maximizes ALJ approval are the same habits that survive a carrier's line-by-line objection.
There is a level-of-adjudication trap as well. Under 20 CFR 702.132, only the body before which the services were performed can approve the fee for that work. Fees for district-director-level work go to the district director, fees for OALJ work go to the administrative law judge, and appellate work goes to the Board or court. Submit each fee petition to the right forum or watch it get denied on jurisdiction alone.
Behind every one of these failure points sits a carrier with a track record. How a specific carrier handles informal conferences, whether it tends to tender at the recommendation or fight past it, and how its cases resolve at the OALJ are patterns you can study before you commit to a strategy. A ClaimTrove investigation pulls the employer, the carrier, and the OALJ decision history behind a claim so you can see how this opponent has litigated fee-triggering disputes before.
How Does Knowing the Carrier Change a Section 28 Fee Fight?
Section 28 is a fight against a specific adversary, and that adversary's identity is not always obvious. The name on the denial letter may belong to a third-party administrator, not the carrier that actually bears liability. Naming the wrong entity in your fee petition creates delay and hands the real carrier a technical defense.
DBA carrier identification is genuinely hard. The same employer can appear under many corporate names across federal records, and coverage shifts between carriers over the years. ClaimTrove data includes 637 DOL-authorized carriers and thousands of employer-to-carrier mappings drawn from adjudicated decisions, which is why the entity that insured a contractor in one period may not be the one that insured it in another.
Knowing the carrier early sharpens every fee decision you make. It tells you whether you are dealing with an insurer or a self-insured employer, whether a TPA is standing in front of the real carrier, and how that carrier has behaved in past disputes. Those facts feed directly into whether you build a 28(a) record or a 28(b) record, and how hard you push at the informal conference.
The OALJ decision corpus is the other half of the picture. ClaimTrove data covers thousands of OALJ and Board decisions, many of which name the employer and carrier as parties. Reading how a carrier's prior fee disputes resolved tells you whether it settles at the written recommendation or litigates fee shifting to the end. That intelligence is worth more than any general rule about the statute.
Successful prosecution is the finish line, but the record you need to shift the fee starts at intake. Docketing the 30-day clock, forcing a written tender, securing a written recommendation, and naming the correct carrier are all decisions you make early, long before the award. The attorneys who reliably shift fees treat Section 28 as a plan, not an afterthought.
When you are ready to build that plan, run the claim through ClaimTrove. Pull the carrier, the employer's corporate aliases, and the OALJ decision data behind your case, then match your fee strategy to the specific opponent on the other side. The statute decides who can pay your fee; your record and your knowledge of the carrier decide whether they actually do.