Slip opinion

NOTE: Where it is feasible, a syllabus
(headnote) will be released, as is being
done in connection with this case, at
the time the opinion is issued.  The
syllabus constitutes no part of the
opinion of the Court but has been pre-
pared by the Reporter of Decisions for
the convenience of the reader.  See
United States v. Detroit Lumber Co., 200
U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

              Syllabus

ESTATE OF COWART v. NICKLOS DRILLING CO.
                    et al.
 certiorari to the united states court of ap-
 peals for the fifth circuit
No. 91-17.   Argued March 25, 1992"Decided June
              22, 1992

Floyd Cowart, whose estate is the petitioner,
was injured while working on an oil drilling plat-
form owned by Transco Exploration Company
(Transco), in an area subject to the Longshore
and Harbor Workers' Compensation Act (LHWCA or
Act).  The Department of Labor gave respondent
Compass Insurance Co. (Compass), the insurer
for Cowart's employer, respondent Nicklos Drill-
ing Company (Nicklos), an informal notice that
Cowart was due permanent disability payments,
but none were never made.  In the meantime,
Cowart settled a negligence action with Transc-
o, which Nicklos funded under an indemnification
agreement with Transco.  However, Cowart did
not secure from Nicklos or Compass a formal,
prior, written approval of the settlement.
Subsequently, Cowart filed a claim with the
Department of Labor seeking disability pay-
ments from Nicklos.  Nicklos denied liability on
the ground that recovery was barred under
33(g) of the Act, which provides that a ``person
entitled to compensation'' must obtain prior
written approval from the employer and its
insurer of any settlement of a third-party
claim, 33(g)(1), and that the failure of the ``em-
ployee'' to secure the approval results in for-
feiture of all rights under the Act, 33(g)(2).
The Administrative Law Judge awarded benefits,
relying on past Benefits Review Board (BRB)
decisions:  one in which the BRB held that in an
earlier version of 33(g) the words ``person
entitled to compensation'' did not refer to a
person not yet receiving benefits; and another
in which it held that, since this phrase was not
altered in the 1984 amendments to the LHWCA
that added 33(g)(2), Congress was presumed to
have adopted the BRB's interpretation.  The
Court of Appeals reversed, holding that 33(g)
unambiguously provides for forfeiture whenever
an LHWCA claimant fails to meet the written-
approval requirement.
Held:Section 33(g)'s forfeiture provision applies
to a worker whose employer, at the time the
worker settles with a third party, is neither
paying compensation to the worker nor subject
to an order to pay under the Act.  The section's
language is plain and cannot support the BRB's
interpretation.  The normal meaning of entitle-
ment includes a right or benefit for which a
person qualifies, regardless of whether the
right or benefit has been acknowledged or adju-
dicated.  Thus, Cowart became ``entitled to com-
pensation'' at the moment his right to recovery
under the Act vested.  If the language of 33(g-
)(1) left any doubt, the ambiguity would be elimi-
nated by the statute's structure, especially
the addition of subsection (g)(2).  This interpre-
tation of 33(g) is reinforced by the fact that
the phrase ``person entitled to compensation'' is
used elsewhere in the statute in contexts in
which it cannot bear Cowart's meaning, and is
not altered by the fact that subsection (g)(2)
uses the term ``employee'' rather than that
phrase.  Contrary to Cowart's argument, this
interpretation of 33(g) gives full meaning to
all of subsection (g)(2)'s notification and con-
sent requirements.  The question whether Nickl-
os' participation in the settlement brings this
case outside 33(g)(1)'s terms is not addressed,
since it was not fairly included within the que-
stion on which certiorari was granted.  The
possible harsh effects of 33(g) are recognized,
but it is the duty of the courts to enforce the
judgment of the legislature; it is Congress that
has the authority to change the statute, not
the courts.  Pp.5-14.
927 F.2d 828, affirmed.

Kennedy, J., delivered the opinion of the Court,
in which Rehnquist, C. J., and White, Scalia, Sout-
er, and Thomas, JJ., joined.  Blackmun, J., filed a
dissenting opinion, in which Stevens and O'Conn-
or, JJ., joined.
Opinion
NOTICE: This opinion is subject to formal
revision before publication in the pre-
liminary print of the United States
Reports.  Readers are requested to
notify the Reporter of Decisions, Su-
preme Court of the United States, Wash-
ington, D.C. 20543, of any typographical
or other formal errors, in order that
corrections may be made before the
preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES--------
              No. 91-17
              --------
ESTATE OF FLOYD COWART, PETITIONER v. NICKLOS
            DRILLING COMPANY et al.
    on writ of certiorari to the united states
    court of appeals for the fifth circuit
                [June 22, 1992]

  Justice Kennedy delivered the opinion of the
Court.
  The Longshore and Harbor Workers' Compensation
Act (LHWCA), 44 Stat. 1424, as amended, 33 U. S. C.
901 et seq., creates a comprehensive federal
scheme to compensate workers injured or killed
while employed upon the navigable waters of the
United States.  The Act allows injured workers,
without forgoing compensation under the Act, to
pursue claims against third parties for their
injuries.  But 33(g) of the LHWCA, 33 U. S. C.
933(g), provides that under certain circumstanc-
es if a third-party claim is settled without the
written approval of the worker's employer, all
future benefits including medical benefits are
forfeited.  The question we must decide today is
whether the forfeiture provision applies to a
worker whose employer, at the time the worker
settles with a third party, is neither paying
compensation to the worker nor is yet subject to
an order to pay under the Act.
                       I
  The injured worker in this case was Floyd Cowar-
t, and his estate is now the petitioner.  Cowart
suffered an injury to his hand on July 20, 1983,
while working on an oil drilling platform owned by
Transco Exploration Company (Transco).  The
platform was located on the Outer Continental
Shelf, an area subject to the Act.  43 U. S. C.
1333(b).  Cowart was an employee of the Nicklos
Drilling Company (Nicklos), who along with its
insurer Compass Insurance Co. (Compass) are
respondents before us.  Nicklos and Compass paid
Cowart temporary disability payments for 10
months following his injury.  At that point Cowart-
's treating physician released him to return to
work, though he found Cowart had a 40% permanent
partial disability.  App. 75.  The Department of
Labor notified Compass that Cowart was owed
permanent disability payments in the total amount
of $35,592.77, plus penalties and interest.  This
was an informal notice which did not constitute an
award.  No payments were made.
  Cowart, meanwhile, had filed an action against
Transco alleging that Transco's negligence caused
his injury.  On July 1, 1985, Cowart settled the
action for $45,000, of which he received $29,350.-
60 after attorney's fees and expenses.  Nicklos
funded the entire settlement under an indemnifi-
cation agreement with Transco, and it had prior
notice of the settlement amount.  But Cowart made
a mistake:  he did not secure from Nicklos a for-
mal, prior, written approval of the Transco set-
tlement.
  After settling, Cowart filed an administrative
claim with the Department of Labor seeking dis-
ability payments from Nicklos.  Nicklos denied
liability on the grounds that under the terms of
33(g)(2) of the LHWCA, Cowart had forfeited his
benefits by failing to secure approval from
Nicklos and Compass of his settlement with Trans-
co, in the manner required by 33(g)(1).
  Section 33(g) provides in pertinent part:
 (g)    Compromise obtained by person entitled
     to compensation
   (1) If the person entitled to compensation
(or the person's representative) enters into
a settlement with a third person referred to
in subsection (a) of this section for an amount
less than the compensation to which the per-
son (or the person's representative) would be
entitled under this chapter, the employer
shall be liable for compensation as determined
under subsection (f) of this section only if
written approval of the settlement is obtained
from the employer and the employer's carrier,
before the settlement is executed, and by the
person entitled to compensation (or the pers-
on's representative).  The approval shall be
made on a form provided by the Secretary and
shall be filed in the office of the deputy
commissioner within thirty days after the
settlement is entered into.
   (2) If no written approval of the settlement
is obtained and filed as required by paragraph
(1), or if the employee fails to notify the
employer of any settlement obtained from or
judgment rendered against a third person, all
rights to compensation and medical benefits
under this chapter shall be terminated, re-
gardless of whether the employer or the
employer's insurer has made payments or
acknowledged entitlement to benefits under
this chapter.  33 U. S. C. 933(g).

  The Administrative Law Judge rejected Nicklos'
argument on the basis of prior interpretations of
33(g) by the Benefits Review Board (Board or
BRB).  In the first of those decisions, O'Leary v.
Southeast Stevedoring Co., 7 BRBS 144 (1977), aff'd
mem., 622 F. 2d 595 (CA9 1980), the Board held that
in an earlier version of 33(g) the words  person
entitled to compensation referred only to in-
jured employees whose employers were making
compensation payments, whether voluntary or
pursuant to an award.  The O'Leary decision held
that a person not yet receiving benefits was not
a  person entitled to compensation, even though
the person had a valid claim for benefits.
  The statute was amended to its present form,
the form we have quoted, in 1984.  In that year
Congress redesignated then subsection (g) to what
is now (g)(1) and modified its language somewhat,
but did not change the phrase  person entitled to
compensation.  Congress also added the current
subsection (g)(2), as well as other provisions.
Following the 1984 amendments the Board decided
Dorsey v. Cooper Stevedoring Co., 18 BRBS 25 (1986),
app. dism'd 826 F. 2d 1011 (CA11 1987).  The Board
reaffirmed its interpretation in O'Leary of the
phrase  person entitled to compensation, saying
that because the 1984 amendments had not changed
the specific language, Congress was presumed to
have adopted the Board's previous interpretation.
It noted that nothing in the 1984 legislative
history disclosed an intent to overrule the
Board's interpretations.  The Board decided that
the forfeiture provisions of subsection (g)(2),
including the final phrase providing that forfei-
ture occurs  regardless of whether the employer
. . . has made payments or acknowledged entitle-
ment to benefits, was a  separate provisio[n]
applicable to separate situations.  18 BRBS, at
29.
  The ALJ in this case held that under the reason-
ing of O'Leary and Dorsey, Cowart was not a person
entitled to compensation because he was not
receiving payments at the time of the Transco
settlement.  Thus, the written-approval provision
did not apply and Cowart was entitled to benefits.
Cowart's total disability award was for $35,592.7-
7, less Cowart's net recovery from Transco of
$29,350.60, for a net award of $6242.17.  In addi-
tion, Cowart was awarded interest, attorney's
fees, and future medical benefits, the last con-
stituting, we think, a matter of great potential
consequence.  The Board affirmed in reliance on
Dorsey.  23 BRBS 42 (1989) (per curiam).
  On review, a panel of the Court of Appeals for
the Fifth Circuit reversed.  907 F.2d 1552 (1990).
Without addressing the Board's specific statutory
interpretation, it held that 33(g) contains no
exceptions to its written-approval requirement.
Because this holding, and a decision by a panel in
a different case, Petroleum Helicopters, Inc. v.
Barger, 910 F. 2d 276 (CA5 1990), conflicted with a
previous unpublished decision in the same Circuit,
Kahny v. O.W.C.P., 729 F. 2d 777 (CA5 1984), the
Court of Appeals granted rehearing en banc.  The
Director of the Office of Workers' Compensation
Programs (OWCP), a part of the Department of
Labor, 20 CFR 701.201 (1991), appeared as a
respondent before the full Court of Appeals to
defend the interpretation and decision of the
Board.
  In a per curiam opinion, the en banc Court of
Appeals confirmed the panel's decision reversing
the BRB in its Cowart case.  927 F.2d 828 (CA5
1991).  The Court of Appeals' majority held that
33(g) is unambiguous in providing for forfeiture
whenever an LHWCA claimant fails to get written
approval from his employer of a third-party
settlement.  The majority acknowledged the well-
established principle requiring judicial deference
to reasonable interpretations by an agency of the
statute it administers, but concluded that the
plain language of 33(g) leaves no room for inter-
pretation.  Judge Politz, joined by Judges King and
Johnson, dissented on the ground that the OWCP's
was a reasonable agency interpretation of the
phrase  person entitled to compensation, to
which the Court of Appeals should have deferred.
  We granted certiorari because of the large
number of LHWCA claimants who might be affected
by the Court of Appeals' decision.  502 U. S. ___
(1991).  We now affirm.
                      II
  In a statutory construction case, the beginning
point must be the language of the statute, and
when a statute speaks with clarity to an issue
judicial inquiry into the statute's meaning, in all
but the most extraordinary circumstance, is
finished.  Demarest v. Manspeaker, 498 U. S. ___,
___ (1991) (slip op., at 6).  The question is whether
Cowart, at the time of the Transco settlement,
was a  person entitled to compensation under the
terms of 33(g)(1) of the LHWCA.  Cowart concedes
that he did not comply with the written-approval
requirements of the statute, while Nicklos and
Compass do not claim that they lacked notice of
the Transco settlement.  By the terms of 33(g)(2),
Cowart would have forfeited his LHWCA benefits if,
and only if, he was subject to the written-approv-
al provisions of 33(g)(1).  Cowart claims that he
is not subject to the approval requirement be-
cause in his view the phrase  person entitled to
compensation, as long interpreted by both the
BRB and the OWCP, limits the reach of 33(g)(1) to
injured workers who are either already receiving
compensation payments from their employer, or in
whose favor an award of compensation has been
entered.  Nicklos and Compass, supported by the
United States, defend the holding of the Court of
Appeals that 33(g) cannot support that reading.
We agree with these respondents and hold that
under the plain language of 33(g), Cowart for-
feited his right to further LHWCA benefits by
failing to obtain the written approval of Nicklos
and Compass prior to settling with Transco.
  The controlling principle in this case is the
basic and unexceptional rule that courts must
give effect to the clear meaning of statutes as
written.  The principle can at times come into some
tension with another fundamental principle of our
law, one requiring judicial deference to a reason-
able statutory interpretation by an administering
agency.  Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837 (1984); National
R. Passenger Corp. v. Boston & Maine Corp., 503 U. S.
___, ___ (1992) (slip op., at 9).  Of course, a re-
viewing court should not defer to an agency
position which is contrary to an intent of Con-
gress expressed in unambiguous terms.  K mart
Corp. v. Cartier, Inc., 486 U. S. 281, 291 (1988);
Chevron, supra, at 842-843.  In any event, we need
not resolve any tension of that sort here, be-
cause the Director of the OWCP and the Depart-
ment of Labor have altered their position regard-
ing the best interpretation of 33(g).  The Direc-
tor appears as a respondent before us, arguing in
favor of the Court of Appeals' statutory inter-
pretation, and contrary to his previous position.
See Brief for Federal Respondent 8, n. 6.  If the
Director asked us to defer to his new statutory
interpretation, this case might present a diffi-
cult question regarding whether and under what
circumstances deference is due to an interpreta-
tion formulated during litigation.  See Bowen v.
Georgetown University Hospital, 488 U. S. 204,
212-213 (1988); Martin v. Occupational Safety and
Health Review Comm'n, 499 U. S. ___, ___ (1991) (slip
op., at 11-12).  The agency does not ask this,
however.  Instead, the federal respondent argues
that the Court of Appeals was correct in saying
the language 33(g) is plain and cannot support
the interpretation given it by the Board.  Because
we agree with the federal respondent and the
Court of Appeals, and because Cowart concedes
that the position of the BRB is not entitled to any
special deference, see Brief for Petitioner 25;
see also Potomac Electric Power Co. v. Director,
Office of Worker's Compensation Programs, 449 U. S.
268, 278, n. 18 (1980); Martin v. Occupational Safety
and Health Review Comm'n, supra, we need not re-
solve the difficult issues regarding deference
which would be lurking in other circumstances.
  As a preliminary matter, the natural reading of
the statute supports the Court of Appeals'
conclusion that a person entitled to compensation
need not be receiving compensation or have had an
adjudication in his favor.  Both in legal and
general usage, the normal meaning of entitlement
includes a right or benefit for which a person
qualifies, and it does not depend upon whether the
right has been acknowledged or adjudicated.  It
means only that the person satisfies the prereq-
uisites attached to the right.  See generally
Board of Regents of State Colleges v. Roth, 408
U. S. 564, 577 (1972) (discussing property inter-
ests protected by the Due Process Clause and
contrasting an entitlement to an expectancy);
Black's Law Dictionary 532 (6th ed. 1990) (defining
 entitle as  To qualify for; to furnish with
proper grounds for seeking or claiming).  Cowart
suffered an injury which by the terms of the
LHWCA gave him a right to compensation from his
employer.  He became a person entitled to compen-
sation at the moment his right to recovery vest-
ed, not when his employer admitted liability, an
event even yet to happen.
  If the language of 33(g)(1), in isolation, left
any doubt, the structure of the statute would
remove all ambiguity.  First, and perhaps most
important, when Congress amended 33(g) in 1984,
it added the explicit forfeiture features of
33(g)(2), which specify that forfeiture occurs
 regardless of whether the employer or the
employer's insurer has made payments or acknowl-
edged entitlement to benefits under this chap-
ter.  We read that phrase to modify the entirety
of subsection (g)(2), including the beginning part
discussing the written-approval requirement of
paragraph (1).  The BRB did not find this amendment
controlling because the quoted language is not an
explicit modification of subsection (1).  This is a
strained reading of what Congress intended.
Subsection (g)(2) leaves little doubt that the
contemplated forfeiture will occur whether or not
the employer has made payments or acknowledged
liability.
  The addition of subsection (g)(2) in 1984 also
precludes the primary argument made by the BRB in
favor of its decisions in Dorsey and this case, and
repeated by Cowart to us:  That Congress in 1984,
by reenacting the phrase  person entitled to
compensation, adopted the Board's reading of
that language in O'Leary.  The argument might have
had some force if 33(g) had been reenacted
without changes, but that was not the case.  In
1984 Congress did more than reenact 33(g); it
added new provisions and new language which on
their face appear to have the specific purpose of
overruling the prior administrative interpreta-
tion.  In light of the clear import of 33(g)(2), the
Board erred in relying on the purported lack of
legislative history showing an explicit intent to
reject the O'Leary decision.  Even were it rele-
vant, the Board's reading of the legislative
history is suspect because as the federal re-
spondent demonstrates, the legislative history of
predecessor bills to the eventual 1984 enactment
do indicate an intent to overturn O'Leary.  See
Longshoremen's and Harbor Workers' Compensation
Act Amendments of 1981:  Hearings on S. 1182 before
the Subcommittee on Labor of the Senate Commit-
tee on Labor and Human Resources, 97th Cong., 1st
Sess. 209, 210-211, 396 (1981).  In any event, admin-
istrative interpretation followed by congressio-
nal reenactment cannot overcome the plain lan-
guage of a statute.  Demarest v. Manspeaker, 498
U. S., at ___ (slip op., at 6).  And the language of
33(g) is plain.
  Our interpretation of 33(g) is reinforced by
the fact that the phrase  person entitled to
compensation appears elsewhere in the statute
in contexts in which it cannot bear the meaning
placed on it by Cowart.  For example, 14(h) of the
LHWCA, 33 U. S. C. 914(h), requires an official to
conduct an investigation upon the request of a
person entitled to compensation when, inter alia,
the claim is controverted and payments are not
being made.  For that provision, the interpreta-
tion championed by Cowart would be nonsensical.
Another difficulty would be presented for the
provision preceding 33(g), 33(f).  It mandates
that an employer's liability be reduced by the net
amount a person entitled to compensation recov-
ers from a third party.  Under Cowart's reading,
the reduction would not be available to employers
who had not yet begun payment at the time of the
third-party recovery.  That result makes no sense
under the LHWCA structure.  Indeed, when a liti-
gant before the BRB made this argument, the Board
rejected it, acknowledging in so doing that it had
adopted differing interpretations of the identical
language in sections 33(f) and 33(g).  Force v.
Kaiser Aluminum and Chemical Corp., 23 BRBS 1, 4-5
(1989).  This result is contrary to the basic canon
of statutory construction that identical terms
within an Act bear the same meaning.  Sullivan v.
Stroop, 496 U. S. 478, 484 (1990); Sorenson v.
Secretary of Treasury, 475 U. S. 851, 860 (1986).
The Board's willingness to adopt such a forced and
unconventional approach does not convince us we
should do the same.  And we owe no deference to
the BRB, see supra, at __.
  Yet another reason why we are not convinced by
the Board's position is that the Board's interpre-
tation of  person entitled to compensation has
not been altogether consistent; and Cowart's
interpretation may not be the same as the Board's
in precise respects.  At times the Board has said
this language refers to an employee whose  em-
ployer is actually paying compensation either
pursuant to an award or voluntarily when claimant
enters into a third party settlement.  Dorsey, 18
BRBS, at 28; 23 BRBS, at 44 (case below).  At other
times, sometimes within the same opinion, the
Board has spoken in terms of the employer either
making payments or acknowledging liability.
O'Leary, 7 BRBS, at 147-149; Dorsey, 18 BRBS, at 29;
see also In re Wilson, 17 BRBS 471, 480 (ALJ 1985).
Cowart, on the other hand, would include within
the phrase both employees receiving compensation
benefits and employees who have a judicial award
of compensation but are not receiving benefits.
Brief for Petitioner 6.  This distinction is an
important part of Cowart's response to the
position of the United States.  Reply Brief for
Petitioner 8.  It may be that the gap between the
Board's and Cowart's positions can be explained by
the Board's inconsistency; but that in itself
weakens any argument that the Board's interpre-
tation is entitled to some weight.
  We do not believe that Congress' use of the word
 employee in subsection (g)(2), rather than the
phrase  person entitled to compensation, under-
cuts our reading of the statute.  The plain mean-
ing of subsection (g)(1) cannot be altered by the
use of a somewhat different term in another part
of the statute.  Subsection (g)(2) does not purport
to speak to the question of who is required under
subsection (g)(1) to obtain prior written approval.
  Cowart's strongest argument to the Court of
Appeals was that any ambiguity in the statute
favors him because of the deference due the OWCP
Director's statutory construction, a deference
which Nicklos and Compass concede is appropriate.
Brief for Respondents 7.  As we have said, we are
not faced with this difficult issue because the
views of the Director, OWCP, have changed since
we granted certiorari.  Supra, at __.  It seems
apparent to us that it would be quite inappropri-
ate to defer to an interpretation which has been
abandoned by the policymaking agency itself.  It is
noteworthy, moreover, that even prior to this
case the position of the Department of Labor has
not been altogether consistent.  It is true that
the Director has twice, albeit in a somewhat
equivocal manner, endorsed the Board's rulings in
O'Leary and Dorsey.  First, in a 1986 circular
discussing the Board's Dorsey case a subordinate
of the Director stated:   While the Board's posi-
tion may not be totally consistent with the
amended language of Section 33(g), we think it is a
rational approach and have advised the Associate
Solicitor that we will support this position.
United States Dept. of Labor, LHWCA Circular No.
86-3, p. 1 (May 30, 1986).  Next, in a Manual pub-
lished in 1989 the Director again adopted the
Board's position that written approval of a
settlement is required only from employers who
are paying compensation; but the statement ends
with a qualifying comment, that  [t]he issue of
consent to a settlement can be a complex matter.
Judicial interpretation may be necessary to
resolve the issue.  (See LHWCA CIRCULAR 86-03,
5-30-86).  United States Dept. of Labor, Longsho-
re and Harbor Workers' Compensation Act (LHWCA)
Procedure Manual, ch. 3-600, 9 (Sept. 1989).  On
the other hand, the Department of Labor has
issued regulations (effective in their current
form since 1986) which are explicit that the writ-
ten-approval requirement of 33(g) applies to a
settlement for less than the amount of compensa-
tion due under the LHWCA,  regardless of whether
the employer or carrier has made payments of
[sic] acknowledged entitlement to benefits under
the Act.  20 CFR 702.281(b) (1991).  So the De-
partment of Labor has not been speaking with one
voice on this issue.  This further diminishes the
persuasive power of the Director's earlier deci-
sion to endorse the BRB's questionable interpre-
tation, a decision he has since reconsidered.
  The history of the Department of Labor regula-
tion goes far toward confirming our view of the
significance of the 1984 amendments.  The original
 702.281, proposed in 1976 and enacted in final
form in 1977, required only that an employee
notify his employer and the Department of any
third-party claim, settlement, or judgment.  41
Fed. Reg. 34297 (1976); 42 Fed. Reg. 45303 (1977).
The sole reference to the forfeiture provisions
was a closing parenthetical:   Caution:  See 33
U. S. C. 933(g).  In 1985, in response to the 1984
congressional amendments, the Department pro-
posed to amend 702.281 by replacing the closing
parenthetical with a subsection (b), stating that
failure to obtain written approval of settlements
for amounts less than the compensation due under
the Act would lead to forfeiture of future bene-
fits.  50 Fed. Reg. 400 (1985).  In response to
comments, the final rulemaking modified 702.281-
(b) to clarify that the forfeiture provision
applied regardless of whether the employer was
paying compensation.  51 Fed. Reg. 4284-4285
(1986).  Thus the evolution of 702.281 suggests
that at least some elements within the Department
of Labor read the 1984 statutory amendments to
adopt a rule different from the Board's previous
decisions.
  We also reject Cowart's argument that our
interpretation of 33(g) leaves the notification
requirements of 33(g)(2) without meaning.  An
employee is required to provide notification to
his employer, but is not required to obtain writ-
ten approval, in two instances:  (1)  Where the em-
ployee obtains a judgment, rather than a settle-
ment, against a third party; and (2)  Where the
employee settles for an amount greater than or
equal to the employer's total liability.  Under our
construction the written approval requirement of
33(g)(1) is inapplicable in those instances, but
the notification requirement of 33(g)(2) remains
in force.  That is why subsection (g)(2) mandates
that an employer be notified of  any settlement.
  This view comports with the purposes and struc-
ture of 33.  Section 33(f) provides that the net
amount of damages recovered from any third party
for the injuries sustained reduces the compensa-
tion owed by the employer.  So the employer is a
real party in interest with respect to any settle-
ment that might reduce but not extinguish the
employer's liability.  The written-approval re-
quirement of 33(g)  protects the employer
against his employee's accepting too little for his
cause of action against a third party.  Banks v.
Chicago Grain Trimmers, 390 U. S. 459, 467 (1968).  In
cases where a judgment is entered, however, the
employee does not determine the amount of his
recovery, and employer approval, even if somehow
feasible, would serve no purpose.  And in cases
where the employee settles for greater than the
employer's liability, the employer is protected
regardless of the precise amount of the settle-
ment because his liability for compensation is
wiped out.  Notification provides full protection
to the employer in these situations because it
ensures against fraudulent double recovery by
the employee.
  As a final line of defense, Cowart's attorney
suggested at oral argument that Nicklos' partici-
pation in the Transco settlement brought this
case outside the terms of 33(g)(1).  Tr. of Oral
Arg. 4-7.  Relying on the recent decision of the
Court of Appeals for the Fourth Circuit in I.T.O.
Corporation of Baltimore v. Sellman, 954 F. 2d 239,
242-243 (1992), counsel argued that 33(g)(1)
requires written approval only of  settlement[s]
with a third person, and that Nicklos' participa-
tion in the Transco settlement meant it was not
with a third person.  Without indicating any view on
the merits of this contention, we do not address
it because it is not fairly included within the
question on which certiorari was granted.  See
this Court's Rule 14.1(a).
  We need not today decide the retroactive effect
of our decision, nor the relevance of res judicata
principles for other LHWCA beneficiaries who may
be affected by our decision.  Compare Pittston
Coal Group v. Sebben, 488 U. S. 105, 121-123 (1988).
We do recognize the stark and troubling possibili-
ty that significant numbers of injured workers or
their families may be stripped of their LHWCA
benefits by this statute, and that its forfeiture
penalty creates a trap for the unwary.  It also
provides a powerful tool to employers who resist
liability under the Act.  Counsel for respondents
stated during oral argument that he had used the
Transco settlement as a means of avoiding Nicklo-
s' liability under the LHWCA.  Tr. of Oral Arg.
23-26.  These harsh effects of 33(g) may be
exacerbated by the inconsistent course followed
over the years by the federal agencies charged
with enforcing the Act.  But Congress has spoken
with great clarity to the precise question raised
by this case.  It is the duty of the courts to
enforce the judgment of the Legislature, however
much we might question its wisdom or fairness.
Often we have urged the Congress to speak with
greater clarity, and in this statute it has done
so.  If the effects of the law are to be alleviated,
that is within the province of the Legislature.  It
is Congress that has the authority to change the
statute, not the courts.
  For the reasons stated, the judgment of the
Court of Appeals is Affirmed.


Dissent
      SUPREME COURT OF THE UNITED STATES--------
              No. 91-17
              --------
ESTATE OF FLOYD COWART, PETITIONER v. NICKLOS
            DRILLING COMPANY et al.
  on writ of certiorari to the united states
    court of appeals for the fifth circuit
                [June 22, 1992]

  Justice Blackmun, with whom Justice Stevens
and Justice O'Connor join, dissenting.
  For more than 14 years, the Director of the
Office of Workers' Compensation Programs inter-
preted the Longshore and Harbor Workers' Compen-
sation Act, 44 Stat. 1424, as amended, 33 U. S. C.
901 et seq. (LHWCA or the Act), in the very same
way that petitioner Floyd Cowart's estate now
urges.  Indeed, the Director advocated Cowart's
position in the Court of Appeals, both before the
panel and before that court en banc.
  After certiorari was granted, however, and
after Cowart's opening brief was filed, the United
States informed this Court:  In light of the en
banc decision in this case, the Department of
Labor reexamined its views on the issue.  Brief
for Federal Respondent 8, n. 6.  The United States
now assures us that the interpretation the
Director advanced and defended for 14 years is
inconsistent with the statute's  plain meaning.
The Court today accepts that improbable conten-
tion, and in so doing rules that perhaps thousands
of employees and their families must be denied
death and disability benefits.  I cannot agree with
the Government's newly discovered interpreta-
tion, and still less do I find it to be compelled by
the  plain meaning of the statute.  The Court
needlessly inflicts additional injury upon these
workers and their families.  I dissent.
                       I
  Ever since the LHWCA was adopted in 1927, it has
included some version of the present 33(g), 33
U. S. C. 933(g), the provision at issue in this
case.  Because that provision cannot be consid-
ered in isolation from the broader context of 33,
or indeed, the LHWCA as a whole, some background
on the structure of the Act and the history of
33's interpretation is essential.
                       A
  The LHWCA requires employers to provide com-
pensation,  irrespective of fault, for injuries
and deaths arising out of covered workers' em-
ployment.  3(a) and 4(b), 33 U. S. C. 903(a) and
904(b).  In return for requiring the employer to
pay statutory compensation without proof of
negligence, the Act grants the employer immunity
from tort liability, regardless of how serious its
fault may have been.  See 5(a) and 33(i).  Bene-
fits under the LHWCA are strictly limited, gener-
ally to medical expenses and two-thirds of lost
earnings, and are set out in detailed schedules
contained in the Act itself.  See 7-9.  A funda-
mental assumption of the Act is that employers
liable for benefits will pay compensation  prompt-
ly,  directly, and  without an award having to
be issued.  See 14(a).
  In a case where a third party may be liable, the
LHWCA does not require a claimant to elect be-
tween statutory compensation and tort recovery.
33(a).  Where a claimant has accepted compensa-
tion under a formal award, then, within a specified
time, he may file a civil action against the third
party.  33(b).  If a claimant recovers in that
action, his compensation under the LHWCA is
limited to the excess, if any, of his statutory
compensation over the net amount of his recovery.
33(f).  Section 33(f) thus operates as a set-off
provision, allowing an employer to reduce its
LHWCA liability by the net amount a claimant
obtains from a third party.  Where the claimant
nets as much or more from the third party as he
would have received from his employer under the
LHWCA, the employer owes him no benefits.
  Section 33(g) of the LHWCA, 33 U. S. C. 933(g),
addresses the situation in which a claimant-
plaintiff settles an action against a third party
for less than he would have received under the
Act.  Under 33(f), considered alone, the claimant
in this situation would always be able to collect
the remainder of his statutory benefits from the
employer.  To protect the employer from having to
pay excessive 33(f) compensation because of an
employee's  lowball settlement, 33(g) conditions
LHWCA compensation, in specified circumstances,
upon the employer's written approval of the third-
party settlement.  See Banks v. Chicago Grain
Trimmers, 390 U. S. 459, 467 (1968).
  Before the LHWCA's 1984 amendments, 33(g)
provided that if a  person entitled to compensa-
tion settled for less than the compensation to
which he was entitled under the Act, then the
employer would be liable for compensation, as
determined in 33(f), only if the person obtained
and duly filed with the Department of Labor the
employer's written approval of the settlement.
The meaning of the term  person entitled to
compensation has proved to be a difficult issue,
both in the pre-1984 version of the Act and"as
this case demonstrates"in the Act's current form.
                                              B
  This issue apparently was considered first in
O'Leary v. Southeast Stevedoring Co., 7 Ben. Rev. Bd.
Serv. 144 (1977), aff'd, 622 F. 2d 595 (CA9 1980).  In
that case, the employer denied liability for the
death of the claimant's husband, contending that
the decedent was not an employee covered by the
LHWCA and that the injury did not arise out of his
employment.  7 Ben. Rev. Bd. Serv., at 145.  The
employer persisted in denying liability even after
its position was rejected by the Benefits Review
Board ( BRB).  See id., at 146-147.  Eventually,
more than 28 months after her husband's accident,
the claimant settled a third-party suit for
$37,500.  About one month thereafter, an Adminis-
trative Law Judge (ALJ), on remand from the BRB,
entered an award for the claimant.  The value of
the death benefits awarded, assuming that the
claimant would live out her normal life expectancy
without remarrying, amounted to more than $150,0-
00.  See O'Leary v. Southeast Stevedoring Co., 5 Ben.
Rev. Bd. Serv. 16 (ALJ) and 20 (ALJ) (1976).  At that
point, the employer contested liability for any
compensation on the ground that, under 33(g), the
claimant had forfeited that compensation by
failing to obtain the employer's written approval
of the settlement.
  The ALJ rejected the employer's position,
reasoning that the claimant was not a  person
entitled to compensation at the time of the
settlement.  The BRB affirmed.  The Board pointed
out that the  underlying concept of the LHWCA is
that  the employer upon being informed of an
injury will voluntarily begin to pay compensation.
O'Leary, 7 Ben. Rev. Bd. Serv., at 147 (citing 14(a-
)).  Further, the Board observed, 33(g) refers to
the conditions under which an employer will be
 liable for compensation under 33(f); the refer-
ence to  liability, the Board reasoned,  contemp-
lat[es] that the employer either be making volun-
tary payments under the Act or that it ha[s] been
found liable for benefits by a judicial determina-
tion.  Id., at 148.  Moreover, the Board continued,
33(b) gives the employer the right to pursue
third parties only if the employer is paying
compensation under an award.  Thus, the premise
of employer rights under 33, the Board conclud-
ed, is that the employer is  making either volun-
tary payments under the Act or pursuant to an
award.  Ibid.
  The BRB observed that the employer in O'Leary
had not paid compensation either voluntarily or
pursuant to an award, but, instead, consistently
had denied liability.  It could hardly have been
clear to the claimant at the time she settled her
third-party suit that the BRB would ultimately
decide in her favor.  Indeed, only after that
settlement and after the ALJ award did the em-
ployer concede that the claimant represented a
 person entitled to compensation, and then only
to argue that, for that reason, she had forfeited
her right to compensation under 33(g).  The Board
emphasized that the employer's interpretation
would place claimants in a severe bind:
 If a claimant was injured through the negli-
gence of a third party and the employer denied
coverage under the Act, a claimant would be
forced to sue the third party.  However, even
if the claimant obtained a reasonable settle-
ment offer, an employer could refuse to give
its consent to the third party settlement for
any number of reasons, e.g., it does not wish
to approve the settlement on a form provided
under the Act since its consent to jurisdic-
tion under the Act might be inferred.  This
could result in a claimant not being paid any
compensation, yet the claimant would be afraid
to make a third party settlement for in so
doing he might waive his rights to compensa-
tion under the Act.  Ultimately, a claimant
going without income for a long enough time
could be forced into a third party settlement
without employer's consent to obtain money
. . . .  Id., at 149.

And under the employer's interpretation of 33(g),
the employee would thereby forfeit all right to
compensation under the Act.  Surely, the Board
concluded,  Congress by requiring written consent
could not have contemplated such a result.  Ibid.
  The Court of Appeals for the Ninth Circuit
affirmed in an unpublished opinion, App. 113, stat-
ing:  The Board's ruling is reasonable and fur-
thers the underlying purpose of the Act.  Id., at
117.  The Court of Appeals for the Fifth Circuit, in
an unpublished opinion, upheld a similar BRB
decision in 1984, finding the O'Leary approach
 fully consistent with the language, legislative
history, and rationale of 33(g).  See Kahny v.
OWCP, 729 F. 2d 777 (table) and App. 96, 108.  No
other courts had occasion to examine the O'Leary
interpretation before the LHWCA was next amend-
ed.
                       C
  The Longshore and Harbor Workers' Compensation
Act Amendments of 1984, 98 Stat. 1639, revisited
33(g).  Id., at 1652.  The former 33(g) was car-
ried over, with minor changes not relevant here,
as 33(g)(1), and a new subsection (g)(2) was added.
Section 33(g) now reads as follows:
      (1) If the person entitled to compensation
(or the person's representative) enters into
a settlement with a third person referred to
in subsection (a) of this section for an amount
less than the compensation to which the per-
son (or the person's representative) would be
entitled under this Act, the employer shall be
liable for compensation as determined under
subsection (f) only if written approval of the
settlement is obtained from the employer and
the employer's carrier, before the settlement
is executed, and by the person entitled to
compensation (or the person's representative).
The approval shall be made on a form provided
by the Secretary and shall be filed in the
office of the deputy commissioner within
thirty days after the settlement is entered
into.
   (2) If no written approval of the settlement
is obtained and filed as required by paragraph
(1), or if the employee fails to notify the
employer of any settlement obtained from or
judgment rendered against a third person, all
rights to compensation and medical benefits
under this Act shall be terminated, regardless
of whether the employer or the employer's
insurer has made payments or acknowledged
entitlement to benefits under this Act.

  In Dorsey v. Cooper Stevedoring Co., 18 Ben. Rev.
Bd. Serv. 25 (1986), appeal dism'd sub nom. Cooper
Stevedoring Co. v. Director, 826 F. 2d 1011 (CA11
1987), the Board rejected an employer's argument
that the final clause of the new 33(g)(2) should
be understood as overturning the O'Leary rule
that no duty to obtain approval arises until the
employer begins to pay compensation.  Subsection
(g)(1), the Board stated, reenacted the prior
version of 33(g) as it was interpreted in O'Leary;
the new subsection, (g)(2), was intended to apply to
situations not covered by (g)(1) or O'Leary.  In
these situations"where the employer has neither
paid compensation nor acknowledged lia-
bility"notice, but not written approval, is re-
quired.  18 Ben. Rev. Bd. Serv., at 29-30.  The Board
interpreted the final clause of (g)(2)"language
that echoes the Board's words in O'Leary"to make
clear that the notification requirement, de-
scribed in (g)(2), was not subject to the O'Leary
limitation that is incorporated in (g)(1).  Id., at 29.
  This interpretation is reinforced, the Board
continued, by two other considerations.  First,
although in a number of instances the 1984 legis-
lative history indicates a congressional intention
to override other BRB and judicial decisions, that
history  indicates no congressional intent to
overrule O'Leary.  Id., at 30.  Second, the Board
observed, this Court has held that the LHWCA
 should be construed in order to further its
purpose of compensating longshoremen and harbor
workers `and in a way which avoids harsh and
incongruous results.'  Id., at 31, quoting Voris v.
Eikel, 346 U. S. 328, 333 (1953), and citing North-
east Marine Terminal Co. v. Caputo, 432 U. S. 249,
268 (1977).  As O'Leary made clear, allowing employ-
ers to escape all LHWCA liability by withholding
approval from any settlement, while refusing to
pay benefits or acknowledge liability, could hardly
be thought consistent with the purpose of en-
couraging prompt, voluntary payment of LHWCA
compensation.
                       D
  Such was the legal background against which
Cowart's claim was considered.  In the administra-
tive proceedings, the BRB relied on O'Leary and
Dorsey to reject the argument, offered by respon-
dent Nicklos Drilling Company, that by failing to
obtain prior written approval of his third-party
settlement Cowart had forfeited his LHWCA bene-
fits.  Because Nicklos was not paying Cowart
benefits, either voluntarily or under an award,
the Board reasoned, Cowart was not a  person
entitled to compensation within the meaning of
33(g)(1), and he therefore was not required to
obtain Nicklos' approval of his settlement.  23
Ben. Rev. Bd. Serv. 42, 46 (1989).  Instead, the
Board held, Cowart was required only to give
Nicklos notice of the settlement, as provided in
33(g)(2).  Because Nicklos indisputably had notice
of the settlement"indeed, it had notice three
months before the settlement was consummat-
ed"the Board ruled Cowart was eligible for LHWCA
benefits.
  On Nicklos' petition for review, the Director of
the Office of Workers' Compensation Programs
( OWCP)"head of the agency charged with adminis-
tering the Act"defended the Board's interpreta-
tion before the Court of Appeals for the Fifth
Circuit.  First a panel of the Court of Appeals,
and then the full court, by a divided vote sitting
en banc, however, rejected the Director's posi-
tion, ruling that Cowart was a  person entitled to
compensation and was required by 33(g)(1) to
obtain Nicklos' written approval.  See 907 F. 2d
1552 (1990) (panel), and 927 F. 2d 828 (1991) (en
banc).  We are told that after this Court granted
certiorari, and after Cowart filed his opening
brief, the Director  reexamined his position and
argued that the interpretation of 33(g) he had
maintained for 14 years, and defended in the Court
of Appeals, was inconsistent with the Act's plain
meaning.
                      II
  This Court today agrees with the Director's
post-certiorari position that Cowart's claim for
compensation is barred by the  clear meaning of
the statute  as written.  Ante, at 6.  According
to the Court, Cowart is plainly a  person entitled
to compensation within the meaning of 33(g)(1),
and his failure to obtain Nicklos' written approval
of his third-party settlement requires, by the
 plain language of 33(g), that he be deemed to
have forfeited his statutory benefits.  Although
the Court does not identify any plausible statu-
tory purpose whatsoever advanced by its reading,
and although"to its credit"it acknowledges the
 harsh effects of its interpretation, ante, at 14,
the Court ultimately concludes that the language
of 33 compels it to reject Cowart's position.
  In my view, the language of 33 in no way com-
pels the Court to deny Cowart's claim.  In fact, the
Court's reliance on the Act's  plain language,
ante, at 6, is selective: as discussed below,
analysis of 33(b) and (f) of the Act shows that,
even leaving aside the question whether Cowart is
a  person entitled to compensation, a consis-
tently literal interpretation of the Act's language
would not require Cowart to have obtained Nicklos'
written approval of the settlement.  Indeed, under
a thoroughgoing  plain meaning approach, Cowart
would be entitled to receive full LHWCA benefits
in addition to his third-party settlement, not
just the excess of his statutory benefits over
the settlement.
  At the same time, a consistently literal inter-
pretation of the Act would commit the Court to
positions it might be unwilling to take.  The
conclusion I draw is not that the Court should
adopt a purely literal interpretation of the Act,
but instead that the Court should recognize, as it
has until today, that the LHWCA must be read in
light of the purposes and policies it would serve.
Once that point is recognized, then, as suggested
by the Court's closing remarks on the  stark and
troubling implications of its interpretation,
ante, at 14, it follows that recognition of Cowart's
claim is fully consistent with the Act.
                       A
  Were the Court truly to interpret the Act  as
written, it would not conclude that Cowart is
barred from receiving compensation.  Section
33(g)(1) of the LHWCA, on which the Court's  plain
meaning argument relies, provides that if a
 person entitled to compensation settles with a
third party for an amount less than his statutory
benefits, his employer will be  liable for compen-
sation as determined under subsection (f) only if
the  person entitled to compensation obtains and
files the employer's written approval.  The  plain
language of subsection (g)(1) does not establish
any general written approval requirement binding
either all  persons entitled to compensation, or
the subset of those persons who settle for less
than their statutory benefits.  Instead, it re-
quires written approval only as a condition of
receiving compensation  as determined under
subsection (f).  Where the  person entitled to
compensation is not eligible for compensation
 as determined under subsection (f), subsection
(g)(1) does not require him to obtain written
approval.
  The  plain language of subsection (f) in turn
suggests that the provision does not apply to
Cowart's situation.  Subsection (f), by its terms,
applies only  [i]f the person entitled to compen-
sation institutes proceedings within the period
prescribed in subsection (b).  And the  period
prescribed in subsection (b) begins, by the terms
of that subsection, upon the person's  [a]ccepta-
nce of compensation under an award in a compensa-
tion order filed by the deputy commissioner, an
administrative law judge, or the Board.  Cowart's
third-party suit was clearly not instituted within
this period: he filed suit before any award of
LHWCA benefits, and he still has not accepted (or
been offered) compensation under any award.
Thus, he does not come within the  plain meaning
of subsection (f), and, accordingly, for the rea-
sons given above, he would not be bound by the
subsection (g)(1) written-approval requirement.  It
would also follow that, because Nicklos indisput-
ably received the notice required by subsection
(g)(2), that provision would not bar Cowart from
receiving LHWCA compensation and medical bene-
fits.
  Indeed, if Cowart is not covered by subsection
(f), he would appear to have been eligible for a
larger award than he sought.  Subsection (f) does
not authorize compensation otherwise unavail-
able; instead, it operates as a limit, in the
specified circumstances, on the employer's LHWCA
liability.  If read literally, subsection (f) would
not bar Cowart from receiving full LHWCA benefits,
in addition to the amount he received in settle-
ment of the third-party claim.
  It is true that 33(f) has not always been read
literally.  Subsection (f) has been assumed to be
applicable where, for example, the claimant's
third-party suit was filed after an employer
voluntarily began paying LHWCA compensation, not
just where compensation was paid pursuant to an
award.  See, e.g., I.T.O. Corp. of Baltimore v.
Sellman, 954 F. 2d 239, 240, 243-245 (CA4 1992);
Shellman v. United States Lines, Inc., 528 F. 2d 675,
678-679, n. 2 (CA9 1975), cert. denied, 425 U. S. 936
(1976) (referring to the availability of an employ-
er's lien, where the employer has paid compensa-
tion without an award, as  judicially created
rather than statutory).  That interpretation is
eminently sensible and consistent with the statu-
tory purpose of encouraging employers to make
payments  promptly, directly, and  without an
award.  See 14(a).  A contrary interpretation
would penalize employers who acknowledge liability
and commence payments without seeking an award,
and it would reward employers who, whether in
good faith or bad, contest their liability until
faced with a formal award.  See Shellman, 528 F. 2d,
at 679, n. 2 ( The purpose of this Act would be
frustrated if a different result could be reached
merely because the employer pays compensation
without entry of a formal award.).
  It is not obvious, however, that a similar argu-
ment from statutory purpose should be available
to employers such as Nicklos who refuse to pay
benefits and then seek shelter under 33(f) (and
by extension, 33(g)(1)).  And the fact remains that
the Court professes to interpret the  clear
meaning of the statute  as written.  The Court's
interpretation today, however, is no more com-
pelled by the language of the LHWCA than the
interpretation Cowart defends: the Court is
simply insensible to the fact that it implicitly has
relied upon presumed statutory purposes and
policy considerations to bring Nicklos and Cowart
under the setoff provisions of 33(f), thus
absolving Nicklos of the first $29,000 in LHWCA
liability.  Only at that point does the Court invoke
the plain meaning rule and insist on a  literal
interpretation of 33(g)(1).  This selective insis-
tence on  plain meaning deprives Cowart's estate
of the last $6,242.77 Nicklos would otherwise have
been bound to pay.
                       B
For these reasons, I think it clear that a purely
textual approach to the LHWCA cannot justify the
Court's holding.  In my view, a more sensible
approach is to consider 33(g) as courts always
have considered the other parts of 33"in rela-
tion to the history, structure, and policies of the
Act.
                       1
  Looking first to 33's history, for present
purposes the most relevant aspect is the 1984
amendment to 33(g) through which that provision
assumed its present form.  The amended provision
clearly bears the impress of the Board's O'Leary
decision.  The reference in 33(g)(2) to that
subsection's applicability,  regardless of whether
the employer or the employer's insurer has made
payments or acknowledged entitlement to bene-
fits, tracks the limitation recognized in O'Leary-
"a limitation that had been unanimously approved
by panels of two Federal Courts of Appeals.  The
question, then, is whether Congress sought to
incorporate that holding or to repudiate it in the
1984 amendments to 33(g).
  The critical fact in this inquiry is Congress' use
of the term  employee, rather than  person
entitled to compensation, in connection with the
notification requirement.  The use of this term is
in marked contrast to the other clauses of 33(g).
Section 33(g)(1) conditions 33(f) compensation of
a settling  person entitled to compensation on
securing the employer's written approval, and
33(g)(2) provides, somewhat redundantly, that a
 person entitled to compensation forfeits all
rights to compensation and medical benefits if the
written approval mentioned in 33(g)(1) is not
obtained.  The notification clause of 33(g)(2),
however, provides that  if the employee fails to
notify the employer of any settlement obtained
from or judgment rendered against a third person,
all rights to compensation and medical benefits
. . . shall be terminated, regardless of whether the
employer or the employer's insurer has made
payments or acknowledged entitlement to bene-
fits (emphasis added).
  The use of the term  employee in 33(g)(2)
strongly suggests that Congress intended to
incorporate the BRB's holding in O'Leary.  As
mentioned, the language Congress chose for the
last clause of 33(g)(2) indicates that it was
aware the Board had adopted a restrictive inter-
pretation of the term  person entitled to compen-
sation.  Congress retained that term in connec-
tion with the written approval requirement of
subsection (g)(1).  Yet Congress chose the broad
term,  employee, for the notification clause of
subsection (g)(2), and  employee, unlike  person
entitled to compensation, is a term expressly
defined in the statute.  See 2(3).  The Court
cannot explain why Congress would have chosen
two different terms to apply to the different
requirements.  Indeed, on the Court's interpreta-
tion, the two terms are identical in their exten-
sion.  On the Court's reading, the term  person
entitled to compensation denotes only a statu-
tory employee who has a claim that, aside from the
requirements of 33(g), would be recognized as
valid.  And that is exactly the denotation of the
term  employee in connection with the notifica-
tion requirement.  The fact that Congress chose
to use different terms in connection with the
different 33(g) requirements"using, with respect
to the written approval requirement, a term that
it knew had been narrowly interpreted, and using,
with respect to the notification requirement, a
term broadly defined in the statute itself"surely
indicates that Congress intended the two terms to
have different meanings.  Had Congress intended
the meaning the Court attributes to it, it would
have used the same term in both contexts.
                       2
  The inference that Congress intended to adopt
the O'Leary rule in the amended language of 33(g)
is only strengthened by consideration of the
factual context to which the provision was de-
signed to apply.  As the Board noted in O'Leary, and
as the Director argued to the Court of Appeals,
the Act presumes that employers, as a rule, will
promptly recognize their LHWCA obligations and
commence payments immediately, without the need
for a formal award.  See 14(a).  In that situation,
the claimant generally knows the value of the
benefits to be received, and can accurately
compare that figure to any settlement offer.  The
claimant in this situation has no strong interest
in the precise amount of any settlement that nets
less than the statutory benefits, so long as the
costs of suit are covered, because by operation
of 33(f), he would not be allowed to retain any of
the proceeds.  On the other hand, the employer who
has acknowledged liability has a strong interest
in recovering from the third party any benefits
already paid to the claimant and in reducing or
eliminating any future benefits it has committed
itself to pay.  For the employer in this situation,
the precise amount of a settlement for less than
the claimant's statutory benefits is vitally
important: any net dollar the claimant recovers in
a third-party action is a dollar less the employer
will have to pay in LHWCA benefits.
  Given the parties' different incentives in the
situation where the employer already is paying
benefits, it makes sense to require the claimant
to protect the employer's interest, by requiring
settlements to be reasonable in the employer's
judgment.  At the same time, giving the employer
this power of approval does not generally threat-
en the claimant's interests, since, as mentioned,
only the employer has an interest in settlements
above the threshold of the claimant-plaintiff's
expenses and below the amount of promised or
delivered LHWCA benefits.
  Matters are quite different, however, when (as
in the present case) the employer has refused to
make statutory payments and is not subject to an
enforceable award at the time of settlement.
First, the claimant generally will not be able to
estimate with certainty whether he will receive
any LHWCA benefits, let alone how much.  Accord-
ingly, the calculation required by 33(g)"a com-
parison between LHWCA benefits and settlement
amount"will be far more difficult.  Second, the
claimant who is not receiving LHWCA payments, and
who cannot be certain that he ever will receive
payments, will have a much more powerful interest
in negotiating a third-party settlement that is as
favorable as possible.  This claimant, unlike its
counterpart who is receiving payments, therefore
will have a strong incentive"independent of the
33(g) requirements"to protect any interest the
employer might have in reducing potential LHWCA
liability.  Finally, disabled longshore employees,
or the families of a longshoreman killed on the
job, are likely to be in a highly vulnerable posi-
tion, subject to financial pressure that may lead
them to overvalue a present lump-sum payment and
undervalue future periodic payments that might
eventually be available under an LHWCA award.
  The employer who refuses to pay, by contrast,
has taken the position that it owes no LHWCA
benefits that may be reduced through a third-
party settlement, and thus that it has no real
interest in the amount for which the third party
settles.  Moreover, as has been noted, the claim-
ant who is not receiving benefits has a strong
incentive to protect the employer's interest in
reducing or eliminating any LHWCA liability that
might eventually be imposed.  Under the Court's
interpretation of 33(g)(1), however, such an
employer in many cases can ensure that it will
never be required to pay LHWCA benefits, even if
it might otherwise ultimately be determined to be
liable, simply by withholding approval of any
settlement offer, regardless of amount.  In
practice, recalcitrant employers will seek to
exempt themselves from statutory liability by
withholding approval of settlements, hoping that
their employees' need for present funds will force
them to settle without approval.  I cannot believe
that Congress intended to require LHWCA claim-
ants to bet their statutory benefits on the
possibility that future administrative and per-
haps judicial proceedings, years later, might
vindicate their position that the employer should
have been paying benefits"particularly when the
employer's asserted interest is already ade-
quately protected independently of 33(g)(1).
                       3
  The Court recognizes the patent unfairness of
this situation, and it as much as admits that its
interpretation is out of line with the policies of
the Act.  See ante, at 14.  Nevertheless, the Court
holds that the plain meaning of the term  person
entitled to compensation clearly applies to both
categories of claimants"those whose employers
have denied liability, as well as those whose
employers have acknowledged that they must pay
statutory benefits.  See ante, at 7-8.  For that
reason, the Court implies, regardless of what
Congress may have thought it was accomplishing in
the 1984 amendments, the words  person entitled
to compensation simply will not bear the con-
struction O'Leary gave them.  See ante, 9.
  Even setting aside my doubts, expressed above,
about the plain meaning rule's application to this
statute, I am not persuaded by the Court's con-
tention.  In my view, it does not strain ordinary
language to describe claimants whose employers
have acknowledged LHWCA liability as  persons
entitled to compensation, but to withhold that
description from claimants whose employers have
denied liability for compensation.  This is partic-
ularly so, given the context in which the term
appears in the statute.  Section 33(g)(1) requires
the  person entitled to compensation to compare
two figures"the amount of a settlement offer, on
the one hand, and the amount of compensation to
which the person is entitled, on the other.  But
what is that latter figure in a situation in which
the employer denies liability in full or in part?
Doubtless, the claimant could hazard a guess by
consulting the Act's jurisdictional provisions
concerning who is covered for which kind of acci-
dent, the compensation schedules included in the
Act, and, in the case of a disability claim, the
opinion of the claimant's doctor that the claimant
in fact is disabled.  The very nature of the situa-
tion, however, is that it is not clear that such a
person is indeed  entitled to compensation"that
question, after all, is exactly the issue that the
employer's position requires to be determined in
administrative and perhaps subsequent judicial
proceedings.  The O'Leary limitation of the term
 person entitled to compensation to the situa-
tion in which the claimant's employer has acknowl-
edged liability and commenced payments seems to
me fully consistent with the requirements of
ordinary language.
  It is true, as the Court observes, that under
the O'Leary interpretation, the term  person
entitled to compensation would take on different
meanings in different contexts.  See ante, at 9.
This Court, however, has not inflexibly required
the same term to be interpreted in the same way
for all purposes.  Compare Barnhill v. Johnson, ___
U. S. ___, ___ (1992) (slip op. 8-9 and n. 9), with id.,
at ___ (Stevens, J., dissenting) (slip op. 4) (noting
that the maxim is  not inexorable, but arguing
that because  nothing in the [statute's] struc-
ture or purpose counsels otherwise, the Court
should have applied it).  This Court has recog-
nized:
 Most words have different shades of meaning
and consequently may be variously construed,
not only when they occur in different stat-
utes, but when used more than once in the same
statute or even in the same section . . . .
   It is not unusual for the same word to be
used with different meanings in the same act,
and there is no rule of statutory construc-
tion which precludes the courts from giving to
the word the meaning which the legislature
intended it should have in each instance.
Atlantic Cleaners & Dyers, Inc. v. United States,
286 U. S. 427, 433 (1932).

  This case is one in which the statutory term in
question should be read contextually, rather than
under the assumption that the term necessarily
has the same meaning in all contexts.  The phrase
 person entitled to compensation is not defined
in the statute, and it is susceptible of at least
two interpretations"a  formalist interpretation,
according to which one may be entitled to compen-
sation whether or not anyone ever acknowledges
that fact, and a  positivist or  legal realist
interpretation, according to which one is entitled
to compensation only if the relevant decisionma-
ker has so declared.  Which of these two senses is
 correct will depend upon context.  The latter
sense, I have suggested, is appropriate to a
context in which liability for compensation is
disputed and the employee is called upon to
predict the future course of administrative and
perhaps judicial proceedings"not just as to
liability, but as to the precise amount of liabili-
ty.  And, in any event, I think, the text and circum-
stances of the 1984 amendment to 33(g) indicate
that Congress intended to adopt the  realist
interpretation found in O'Leary.
  Moreover, the Court simply has failed to apply,
or even mention, a maxim of interpretation, spe-
cifically applicable to the LHWCA, that strongly
supports Cowart's position.  This Court long has
held that  `[t]his Act must be liberally construed
in conformance with its purpose, and in a way which
avoids harsh and incongruous results.'  Director,
OWCP v. Perini North River Associates, 459 U. S.
297, 315-316 (1983), quoting Voris v. Eikel, 346
U. S., at 333.  The only point at which the Court in
this case consults the purposes of the Act is at
the end of its opinion, when it assures the reader
that its interpretation of the notification re-
quirement of 33(g)(2)"as opposed to its interpre-
tation of the written approval requirement stated
in 33(g)(1)"is consistent with the statute's
purposes.  See ante, at 13.  Finally, underscoring
its refusal to apply the maxim of liberal con-
struction to this case, the Court ultimately
acknowledges that the interpretation of 33(g) it
has adopted has  harsh effects and  creates a
trap for the unwary.  Ante, at 14.  For my part, I
can imagine no more appropriate occasion on which
the maxim should be applied.
                       4
  Once it is recognized that a claimant whose
employer denies LHWCA liability is not a  person
entitled to compensation for purposes of 33(g)-
(1), the proper resolution of this case is clear.
Cowart was just such a claimant, and, accordingly,
he was not bound by 33(g)(1)'s written approval
requirement.  It is undisputed that he satisfied
the notice requirement of 33(g)(2).  It follows
that 33(g) is no bar to Cowart's eligibility for
benefits.
                      III
  The Court recognizes  the stark and troubling
possibility that significant numbers of injured
workers or their families may be stripped of their
LHWCA benefits by this statute.  Ante, at 14.  It
attempts to justify the  harsh effects of its
decision on the ground that it is but the faithful
agent of the legislature, and  Congress has
spoken with great clarity to the precise question
raised by this case.  Ibid.  In my view, Congress
did not answer the question in the way the Court
suggests, let alone did it do so  with great
clarity.  The responsibility for today's unfortu-
nate decision rests not with Congress, but with
this very Court.
  I dissent.
