TOPIC 28

Topic  28.1     Attorney's Fees–Generally

Vercher v. Ceres Marine Terminals, (Unpublished)(BRB No. 03-0481)(March 17, 2004).

            The employer’s objections to the fee petition were not invalid because they were written by the employer’s claims manager and not by an attorney.  The employer’s claims manager has the authority to handle claims and did so throughout the course of the proceedings in accordance with 20 C.F.R. § 702.131 (parties may be represented in any proceeding by an attorney or other person previously authorized in writing by such party to so act).  When presented with a fee petition, it was not unreasonable for employer’s claims manager to represent employer’s interest by filing objections.    Nothing in the LHWCA requires the person writing objections to a fee petition to be an attorney.  As the employer filed objections, and the ALJ acknowledged those objections, it cannot be said that employer waived its right to object to the fee awarded. 

Topic  28.1     Attorney's Fees–Generally

Craig v. Avondale Industries, Inc., 36 BRBS 65(2002).

            This is an Order on Reconsideration of the Board's Decision and Order on Reconsideration En Banc, Craig v. Avondale Industries, Inc., 35 BRBS 164 (2001). Once again the Board has upheld its prior decision in this matter holding that initial claim forms filed by claimants, standing alone, trigger the 30-day time period (following notice of a claim from the district director) in which employer is required to pay benefits or decline to pay for purposes of attorney's fee liability under Section 28(a). Neither the LHWCA nor the regulations require that a claimant submit evidence with his claim before the requirements of Section 28(a) are triggered. A claimant need not establish a prima facie case under Section 20(a) before the requirements of Section 28(a) are triggered. In these consolidated hearing loss claims, the Board specifically found that "there is no reason to treat hearing loss claims differently, merely because a hearing loss must be ratable under the [AMA] Guides to the Evaluation of Permanent Impairment in order to be compensable."

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Topic  28.1.1  Attorney Fees—Generally

Newport News Shipbuilding & Dry Dock Co. v. Brown, 376 F.3d 245 ( 4th Cir. 2004).

            An award under Section 14(f) for an employer's late payment of compensation is a successful prosecution of a claim for compensation for purposes of awarding attorney fees. The Fourth Circuit reasoned that the amount due for late payment satisfies the definition of "compensation" because it is a "money allowance payable" to the employee who is due the basic compensation award. "[W]hen the language of Sec. 14(f) is read together with the LHWCA's definition of compensation, and the Act's structural distinction between compensation and penalties is taken into account, it is plain that an award for late payment under Sec. 14(f) is compensation."

Topic  28.1.1  Attorney’s Fees–Generally–Introduction

Kuhn v. Kenley Mining Co., (Unpublished) (No. 01-2255) (4th Cir. April 4, 2002).

            This Black Lung Benefits Act fee case is noted here because the attorney fee section of the Black Lung Act and regulations are derived from the LHWCA. The Fourth Circuit, citing 33 U.S.C. § 928(a) and 20 C.F.R. § 725.367(a), held that "the statute does not permit the fees of a lay representative to be shifted to an employer."

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Topic  28.1.2  Attorney’s Fees—Successful Prosecution

Clark v. Chugach Alaska Corp., ___ BRBS ___ (BRB No. 04-0246)(Nov. 30, 2004).

            The issue at hand is whether Buckhannon Board & Care Home, Inc. v. West Virginia Dep’t of  Health & Human Resources, 523 U.S. 598 (2001), affects the Board’s consistently held position that where an employer did not pay benefits within the 30-day period of receiving written notice of a claim, but ultimately did so at the district director level, a claimant’s attorney is entitled to a fee Under Section 28(a).           

            The Board found that an employer’s liability for a claimant’s attorney fee is grounded in the plain language of Section 28 and the applicable administrative procedures under the LHWCA; not in whether or not a compensation order has been issued.  There need not be a “prevailing party” in order for an attorney fee to be due; there simply has to be a “successful prosecution.”  Under the plain language of Section 28(a), an employer is liable for a fee if it declines to pay any benefits within 30 days after receiving written notice of the claim from the district director, and the claimant’s attorney’s services thereafter result in successful prosecution of the claim.  The Board found that under the statutory framework, a “material alteration” of the parties’ relationship occurred when the employer paid the benefits sought.  Thus, when the claim was paid no order of approval or dismissal was necessary in the administrative forum to effect this result.  The Board noted that even if Buckhannon principles did apply, this material alteration would be sufficient to satisfy the requirement of a “material change” in the legal relationship between the parties as the claimant obtained a sanctioned result when the claim was resolved via the LHWCA’s informal procedures. 

            The Board distinguished Buckhannon, which was filed in a judicial forum, in an Article III court, and then rendered moot by subsequent legislative action.  Thus, in Buckhannon, there was no success in the judicial forum and no “judicially sanctioned” alteration of the parties’ relationship, and no prevailing party.

Topic  28.1.2  Attorney’s Fees—Successful Prosecution

[ED. NOTE:  This case is provided for informational use only.  For a case directly in point on the issue of attorney fees/successful prosecution, see Clark v. Chugach Alaska Corp., ___ BRBS ___ (BRB No. 04-0246)(Nov. 30, 2004), below.]

Alegria v. District of Columbia, ___ F.3d ___ (No. 02-7126)(D.C. Cir. Dec. 3, 2004).      

            In this Individuals with Disabilities Education Act (“IDEA”) case a denial of  attorney fees was upheld.  The court stated, ”In the absence of clear evidence that Congress intended the IDEA’s fee eligibility to be treated differently than other fee shifting statutes, and specifically, to allow awards of attorneys’ fees for private settlements, we hold that appellants fail to overcome the presumption that Buckhannon [Bd. & Care Home, Inc. v. W.Va. Dep’t of Health & Human Res., 523 U.S. 598 (2000)] applies.”

Topic  28.1.2  Attorney's Fees—Successful Prosecution

Singleton v. National Maintenance & Repair, (Unpublished) (BRB No. 03-0404)(March 10, 2004).

            The Board reversed an attorney fee award where after the formal hearing the employer paid less compensation (for injuries to the left and right upper extremities) than it was voluntarily paying before the hearing. While acknowledging that the percentage for one extremity had been increased as a result of the formal hearing, the Board noted that the percentage for the other extremity had drastically decreased. Thus the claimant did not receive greater overall compensation after the hearing.

Topic  28.1.2  Attorney Fees--Successful Prosecution

            Coleman v. Bollinger Shipyard, Inc. (Coleman I), 37 BRBS 606(ALJ) (2001 LHC 2882)(August 8, 2003) (Supplemental Decision and Order Denying Attorney's Fees), reconsidered at Coleman v. Bollinger Shipyard, Inc. (Coleman II), 37 BRBS 620(ALJ) (Sept. 19, 2003) (Reconsideration Denied).

            This is a denial of attorney fees although the claimant was successful in the prosecution of his claim. In Coleman I, a Request for Production of Documents was served on the claimant's counsel in an attempt to verify which entries in the fee application were attributable to the attorney of record or to other persons. This Request for Production sought to inspect and copy "any and all records and documents, including but not limited to his time sheets and work sheets in support of this [fee application]… ." When the claimant's Counsel moved for a Protective Order, the employer filed an opposition, averring that the fee application showed "no effort was made to verify whether all of the time entries were made by [Counsel] or perhaps another attorney or support staff." The employer argued that its discovery request should be granted or in the alternative, the ALJ should conduct an in camera inspection of the requested documents.

            Counsel for the claimant indicated that he had performed "virtually all work" on the claim but conceded that "a few items were performed by his former associate." Coleman I. The ALJ noted that the fee petition failed to identify the associate and subsequently ordered an in camera inspection in which Counsel was directed to provide a "privilege log detailing the documents supporting the fee application, e.g., any and all time sheets and work sheets, and any privilege precluding its production along with copies of all such documents for an in camera inspection…." Eventually the ALJ denied the Motion for Protective Order and directed Counsel to respond to the Request for Production, after Counsel failed to comply with the Order by submitting a box of paper without a privilege log.

            The ALJ noted in his Order Denying Attorney's Fees (Coleman I), that Counsel's former associate had appeared with records, in response to the Order for Production and that the attorney "allegedly indicated he performed substantial work on Claimant's case. Moreover, [the attorney] allegedly reported there were never any time sheets nor any work sheets generated in support of Counsel's fee petition, which was prepared by [the attorney]." Coleman I.

            Thereafter, the employer sought the depositions of both the associate and Counsel. In the ensuing litigation, the employer argued that without any supporting time sheets or work sheets, "the only other discovery device available to verify the accuracy of the fee petition [before the ALJ and the District Director] is by deposition." See Coleman I. In an Order Denying Motion to Quash Subpoena, the ALJ stated that Counsel "has failed to comply with the undersigned's order…to provide his time or work sheets and a privilege log of protected documents." See Coleman I. In Coleman I, the ALJ found that the former associate's "apparent assistance in the case and the fee application preparation was not established from the fee petitions in the instant matter. Accordingly, discovery by deposition was the only remaining discovery device useful to verify the accuracy of Counsel's fee petition."

            At deposition, the former associate indicated that time sheets were "not really kept" and that occasionally notations would be written on a file. Coleman I. The former associate admitted that he could not say how much time was "actually spent on this file" because "there are no records." See Coleman I. According to the ALJ, although the former associate prepared the fee petition, he had "no idea how much time [Counsel] actually spent on the file." See Coleman I.

            In denying a fee, the ALJ noted that Counsel failed to comply with the Decision and Order or the Discovery Order and that "there are absolutely no billing records nor any time sheets or work sheets supporting the attorney's fee or his expenses." Coleman I. Quoting the longshore regulations, the ALJ stated that this failure to comply may result in a ruling "that a pleading, or part of a pleading, or a motion or other submission by the non-complying party, concerning which the order or subpoena was issued, be stricken, or that a decision of the proceeding be rendered against the non-complying party, or both. 29 C.F.R. § 18.6(b)(2)(v)(emphasis added by ALJ).

            The ALJ concluded, "Discovery devices useful to determine the accuracy of Counsel's fee petition have been exhausted." He explained:

As noted above, discovery devices produced only testimony contrary to Counsel's contentions and a box of documents which is not useful in resolving this matter. The complete failure to meaningfully document legal services and expenses prevents a reasoned decision in this matter and constrains the undersigned from rendering extensive findings regarding a reasonable attorney's fee and expenses.

In light of the foregoing, I find Counsel has failed to carry his burden of establishing entitlement to an attorney fee award by documenting the appropriate hours expended and hourly rates charged. Accordingly, his request for an attorney's fee and expenses is DENIED.

Coleman I.

   On reconsideration, after re-opening the record to receive additional exhibits, the attorney fee request was again denied. Coleman II.

Topic  28.1.2  Attorney Fees—Successful Prosecution

Hucks v. Newport News Shipbuilding & Dry Dock Company, (Unpublished)(BRB No. 03-0168)(Sept. 29, 2003).

            In this attorney fee issue case, the Board refused to extend (to the Fourth Circuit) the Fifth Circuit's recent requirement that an informal conference must be held in order to recover attorney fees:

            We reject employer's contention that it is not liable for claimant's attorney's fee under Section 28(b) due to the absence of an informal conference. Following the decision of the United States court of Appeals for the Ninth Circuit in National Steel & Shipbuilding Co. v. U.S. Dep't of Labor, 606 F.2d 875, 11 BRBS 68 (9th Cir. 1979), the Board has held that an informal conference is not a prerequisite to employer's liability for a fee pursuant to Section 28(b). Caine v. Washington Area Metropolitan Transit Authority, 19 BRBS 180 (1986); contra Pool Co. v. Cooper, 274 F.3d 173, 35 BRBS 109(CRT)(5th Cir. 2001)(Fifth Circuit holds that an informal conference is a prerequisite to fee liability under Section 28(b)).

Topic  28.1.2  Attorney Fees–Successful Prosecution

Richardson v. Continental Grain Company, 336 F.3d 1103 (9th Cir. 2003).

            The Ninth Circuit denied attorney fees under both Sections 28(a) and 28(b) for a back and knee injury. For the back injury, the claimant did not successfully prosecute his claim, and therefore fees were not due under Section 28(a). The employer had voluntarily paid more compensation than the claimant was ultimately entitled to. As to the knee injury, the claimant was awarded $932. However the employer had previously offered to pay $5000 to settle both the back and knee claims. (This was after the employer had already voluntarily paid more than the claimant was entitled to for the back injury.) Claimant has argued that the $932 recovery on his knee should not be compared with the total $5,000, but rather with the portion of the $5,000 that was tendered for the knee claim. However, the circuit court noted that the burden of proof is on the claimant to show he is entitled to an attorney fee and thus he has to demonstrate how much of the lump-sum offer was for each claim, “especially since he did not object to the nature of the lump-sum offer at the time.” Since the claimant could not due this, the court compared the total amount awarded with the amount offered. The court concluded that he was not entitled to fees under this option because $932 (for his knee) plus $0 (for his back) is less than $5,000.

Topic  28.1.2  Attorney Fees––Successful Prosecution

Terrell v. Washington Metropolitan Area Transit Authority, 36 BRBS 133) (2002).

            This is a Reconsideration of the Board's previous holding in this matter found at 36 BRBS 69 (2002). That Order held that the employer could not be held liable for the claimant's attorney's fee for the work counsel performed and that the claimant was liable for a reduced fee that was made a lien on his total disability compensation award. In a plurality decision on reconsideration, counsel successfully sought to hold the claimant liable for the entire fee he had requested.

            This matter stems from a modification request brought by the Director. Previously the claimant contended that the Director had no standing to appeal to the Board, and that the appeal was untimely. The Board rejected those contentions. In the appeal on the merits, the claimant opposed the Director's contention that the employer retained standing to oppose a modification request under the pre-1984 Amendment Act, and was unsuccessful in defending the ALJ's decision excluding the employer from the proceedings. Citing Hensley v. Eckerhart, 461 U.S. 424 (1983), the Board then held that counsel for the claimant was not entitled to a fee for the work performed on research, motions or briefs, as the claimant was unsuccessful in maintaining the status quo.

            Now the Board holds that Hensley does not apply since Hensley is only applicable to fee shifting statutes such as Sections 28(a) and (b) and not to Section 28(c) where attorney's fee entitlement is determined by the necessary work performed in securing n award. Citing 20 C.F.R. § 802,203(e), the Board found the work counsel performed to be "necessary" in that he advocated a position protective of his client's interest. Noting that, on remand, the claimant had been awarded ongoing permanent total disability benefits and the entitlement to cost-of-living adjustments, the Board found that the claimant was financially able to pay the $4,100.00 attorney fee.

            In a concurring opinion, Judge McGranery agreed that the claimant should be responsible for the attorney fee under Section 28(c), but took issue with the plurality's interpretation of Hensley (that fee shifting does not apply to the instant case because fee liability had not shifted to the employer.). "I think that the Hensley analysis provides guidance whenever a judicial tribunal is responsible for directing an attorney's fee award." She went on to note; "The flaw in the majority's analysis is that it fails to distinguish between substantive and procedural issues. Although claimant was unsuccessful in opposing employer's participation in the modification proceeding, this was purely a procedural issue. The prohibition against compensating attorneys for work on unsuccessful issues concerns substantive issues, i.e., claims."

Topic  28.1.2  Attorney Fees––Successful Prosecution

Woods v. Director, OWCP, (Unpublished) 2003 U.S. App. LEXIS 3590 (Ninth Cir. No. 01-71920) (9^th Cir. February 25, 2003).

            Where an employer makes voluntary payments and a claimant does not receive greater compensation from an ALJ Decision and Order, the claimant is not entitled to an attorney fee. The Ninth Circuit found that, "The record contains no evidence that the employer's advance payment made before [the claimant] filed her claim was conditional or contingent in nature. Because the [ALJ's] award did not exceed the amount of the advance payment, [the claimant] is not entitled to attorney's fees under the LHWCA."

Topic  28.1.2  Attorney Fees—Successful Prosecution

Marks v. Trinity Marine Group, 37 BRBS 117 (2003).

            This is the appeal of an Attorney Fee Award issued by a district director. At issue here is whether or not a guaranty association is liable for pre-insolvency attorney's fees under the LHWCA. The Board held that the state law regarding the scope of the guaranty association's responsibilities precludes the guaranty association's liability for the payment of the claimant's pre-insolvency attorney's fees in this case, notwithstanding its liability for the claimant's compensation benefits. In reaching this opinion, the Board cited to Frank v. Kent Guidry Farms, 816 So.2d 969, 972 (La. Ct. App. 2002), writ denied, 847 So. 2d 1273 (La. 2003); La. R. S. 22:1379(3)(d); Castille v. McDaniel, 620 So. 2d 461 (La.Ct.App. 1993). In Frank, the state appellate court stated:

Louisiana law is clear that LIGA is not an "insurer" for purposes of applicable statutes imposing penalties, attorney fees and therefore cannot be assessed penalties and attorney fees under our jurisprudence. It is true that the penalties and attorney fees were imposed prior to [the carrier's] insolvency and cast in the judgment rendered in the trial court and now on appeal. Although LIGA is obliged to the extent of covered pre-insolvency claims, [La.R.S. 22:1382], pre-insolvency obligations for statutory penalties and attorney fees are not covered claims.

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Topic  28.1.3  Attorney Fees--When Employer's Liability Accrues

Avondale Industries v. Craig, (Unpublished) (5th Cir. No. 02-60470) (5th Cir. Dec. 1, 2003); 2003 U.S. App. LEXIS 24187. [ED. NOTE: However, since the Craig case has been removed on Dec. 29, 2003 (see below) from the trio of consolidated cases that the Fifth Circuit addressed in this litigation, the holdings noted below should be cited as Avondale Indus., Inc. v. Alario, 355 F.3d 848 (5th Cir. Dec. 29, 2003).]

            For attorney's fee purposes, a hearing loss case is to be treated like any other case. There is no requirement that there be presumptive evidence before a hearing loss claim can be considered filed under Section 28(a). "Section 28(a) makes it clear that the operative date for avoiding the potential shifting of attorney's fees is thirty days after the employer receives formal notice of the claim' section 28(a) makes no mention of the term ‘evidence,' let alone require that certain evidence be provided when a claim is filed." "Although section 8(c)(13)(C) states that an audiogram accompanied by an interpretive report is ‘presumptive evidence of the amount of hearing loss,' the Act nowhere states that such evidence is required for a claim to be considered filed for the purposes of section 28(a)." Thus, it is significant that the Fifth Circuit is holding that a hearing loss claim can be made without a presumptive audiogram.

[ED. NOTE: On December 29, 2003, the Fifth Circuit issued Avondale Indus., Inc. v. Alario, 355 F.3d 848 (5th Cir. Dec. 29, 2003). In a footnote, the Fifth Circuit noted that Avondale also challenged the Board's decision awarding attorney's fees to Eugene Craig (see above). The Fifth Circuit notes that the instant opinion was originally issued referencing Craig's case along with the cases of Alario and Howard. "But the BRB's decision of these three consolidated cases actually remanded Craig's case to the district director for further proceedings. Thus, there was no final order of the Board with respect to Craig, and Craig was dismissed from this appeal on September 18, 2002. The Director of the office of Workers' compensation Programs filed a motion to amend the judgment requesting that the original opinion be revised to remove the references to Craig's case. The Director's motion is granted, and this opinion has been revised to reflect that only the cases of Alario and Howard are before this court."]

Topic  28.1.3  Attorney Fees–When Employer's Liability Accrues

Weaver v. Director, OWCP, 282  F.3d 357 (5th Cir. 2002).

            This case interprets the fee-shifting provision of the LHWCA found at Section 28(a). Citing Watkins v. Ingalls Shipbuilding, Inc., (No. 93-4367) (5th Cir. Dec. 9, 1993) (Unpublished), the court held that an attorney could recover only those fees incurred after the 30th day following the receipt of formal notice from the district director. [Watkins has precedential status because it was decided before the Fifth Circuit changed its rules.] The court further ruled that, as to fees accrued between the formal notice and controversion of the claim (the 30th day following receipt of notice), these fees may be assessed against the employer if the employer controverts a claim within the 30 day window and other triggers have been satisfied. These other triggers are: (1) there is formal notice, (2) there is a successful prosecution by the claimant, and the claimant uses an attorney to prosecute the claim.

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Topic  28.2     Attorney Fees—Employer's Liability

Marks v. Trinity Marine Group, 37 BRBS 117 (2003).

            This is the appeal of an Attorney Fee Award issued by a district director. At issue here is whether or not a guaranty association is liable for pre-insolvency attorney's fees under the LHWCA. The Board held that the state law regarding the scope of the guaranty association's responsibilities precludes the guaranty association's liability for the payment of the claimant's pre-insolvency attorney's fees in this case, notwithstanding its liability for the claimant's compensation benefits. In reaching this opinion, the Board cited to Frank v. Kent Guidry Farms, 816 So.2d 969, 972 (La. Ct. App. 2002), writ denied, 847 So. 2d 1273 (La. 2003); La. R. S. 22:1379(3)(d); Castille v. McDaniel, 620 So. 2d 461 (La.Ct.App. 1993). In Frank, the state appellate court stated:

Louisiana law is clear that LIGA is not an "insurer" for purposes of applicable statutes imposing penalties, attorney fees and therefore cannot be assessed penalties and attorney fees under our jurisprudence. It is true that the penalties and attorney fees were imposed prior to [the carrier's] insolvency and cast in the judgment rendered in the trial court and now on appeal. Although LIGA is obliged to the extent of covered pre-insolvency claims, [La.R.S. 22:1382], pre-insolvency obligations for statutory penalties and attorney fees are not covered claims.

Topic  28.2     Attorney Fees–Employer's Liability

Boatwright v. Logisitec of Connecticut, Inc., (Unpublished) (BRB No. 01-0804) (July 12, 2002).

            In this attorney fee issue case which arose within the jurisdiction of the Second Circuit, the Board rejected the employer's contention that Section 28(b) is not applicable as no informal conference was held in this matter. The Board noted that the Second Circuit has not addressed the issue of whether the absence of an informal conference is an absolute bar to the imposition of fee liability under Section 28(b). Thus, the Board has not seen fit to apply the Fifth Circuit holding beyond that circuit. See Pool Co. v. Cooper, 274 F.3d 173, 35 BRBS 109(CRT) (5th Cir. 2001) (Fifth Circuit holds that informal conference is prerequisite to fee liability under Section 28(b)). See also, Staftex Staffing v. Director, OWCP, 237 F.3d 409, 34 BRBS 105 (CRT) (5th Cir. 2000), modifying on reh'g 237 F.3d 407, 34 BRBS 44 (CRT) (5th Cir. 2000).

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Topic   28.2.2  Attorney Fees—Employer’s Liability--Tender of Compensation

Jackson v. Newport News Shipbuilding & Dry Dock Co., ___ BRBS ___ (BRB No. 03-0629)(December 20, 2004).

            This is an Order on Motion for Reconsideration of 38 BRBS 39 (2004)(In order for a “tender” to be valid pursuant to Section 28(b), such that employer can avoid fee liability, it must be “an offer to pay, expressed in writing, without any conditions attached thereto.”  As employer’s purported tenders were conditioned on claimant’s accepting a stipulation, the Board held that employer did not tender compensation within the meaning of Section 28(b).   In the Motion for Reconsideration, the employer contended that the Board’s decision was contrary to its unpublished decisions in Boyd v. Newport News Shipbuilding & Dry Dock Co., (BRB No . 02-0607)(May 22, 2003), and Jenkins v. Newport News Shipbuilding & Dry Dock Co. (BRB No. 01-0870)(Aug. 8, 2002).

            The Board rejected this contention, finding that the just cited cases were factually distinguishable from the case now before it.  Citing to Lopez v. Southern Stevedores, 23 BRBS 295, 300 n. 2 (1990), the Board noted at Boyd and Jenkins demonstrate the soundness of the principle that unpublished Board decisions generally should not be cited or relied upon by the parties in presenting their cases.  “[A]s the Board’s decisions therein are based on specific facts, whereas the decision in Jackson resolved an issue of law.  That unpublished cases are more readily available does not lessen the validity of the Board’s statement in Lopez.”

Topic  28.2.2  Attorney's Fees—Tender of Compensation

Jackson v. Newport News Shipbuilding & Dry Dock Co., 38 BRBS 39 (2004).

            At issue in these consolidated cases is whether an employer validly "tendered" compensation within the meaning of Section 28(b).  In both cases the Employer sent letters to each counsel for claimants stating that they were "unconditionally tendering" compensation. The employer enclosed proposed stipulations, which included the following statement: "That the parties are aware of no other outstanding issues as of the date of the execution of these stipulations." Counsel refused to agree. In one case [Jackson] counsel explained why the offending language was to his client's detriment and the ALJ awarded an attorney fee in that case. In the other case [Atkins] the claimant's counsel stated that the only reason he objected to the proposed stipulation was that his attorney's fee remained at stake. The ALJ found that this was an improper attempt to shift fee liability, and denied an attorney fee.

            The Board noted that "tender" was not used in the statute and therefore looked to the jurisprudence as well as to Black's Law Dictionary. The Board noted Armor v. Maryland Shipbuilding & Dry Dock Co., 19 BRBS 119 (1986) (en banc)(Held, an offer to settle a claim may constitute a valid tender if the offer demonstrates a ‘readiness, willingness and ability on the part of employer or carrier, expressed in writing, to make…a payment to the claimant.'). In Richardson v. Continental Grain Co., 336 F.3d 1103, 37 BRBS 80 (CRT) (9th Cir. 2003), the Ninth Circuit quoted Black's and stated that a "tender" is "'an unconditional offer of money or performance to satisfy a debt or obligation."' The Board additionally noted that the Fifth Edition of Black's defined "tender" as "an offer of money… in satisfaction of [a] claim or demand, without any stipulation or condition." The Board stated that "Pursuant to these definitions and in conjunction with the Board's decision in Armor, we hold that a ‘tender' under Section 28(b) must be an offer to pay, expressed in writing without any conditions attached thereto."

   The Board found that whether a "tender" is unconditional should not be decided on a case-by-case basis because to do so would shift to claimants the burden of justifying their refusals to accept the stipulations that accompanied offers of compensation when the burden is properly on the employer to establish that it tendered compensation within the meaning of the LHWCA in order to avoid fee liability. In the Board's words, "As a tender must be ‘unconditional' it cannot be dependent on the validity of the claimant's reasons for rejecting a condition or stipulation imposed by employer."

Topic  28.2.2  Employer's Liability—Tender of Compensation

Singleton v. National Maintenance & Repair, (Unpublished) (BRB No. 03-0404)(March 10, 2004).

            The Board reversed an attorney fee award where after the formal hearing the employer paid less compensation (for injuries to the left and right upper extremities) than it was voluntarily paying before the hearing. While acknowledging that the percentage for one extremity had been increased as a result of the formal hearing, the Board noted that the percentage for the other extremity had drastically decreased. Thus the claimant did not receive greater overall compensation after the hearing.

Topic  28.2.2  Attorney Fees–Tender of Compensation

Richardson v. Continental Grain Company, 336 F.3d 1103 (9th Cir. 2003).

            The Ninth Circuit denied attorney fees under both Sections 28(a) and 28(b) for a back and knee injury. For the back injury, the claimant did not successfully prosecute his claim, and therefore fees were not due under Section 28(a). The employer had voluntarily paid more compensation than the claimant was ultimately entitled to. As to the knee injury, the claimant was awarded $932. However the employer had previously offered to pay $5000 to settle both the back and knee claims. (This was after the employer had already voluntarily paid more than the claimant was entitled to for the back injury.) Claimant has argued that the $932 recovery on his knee should not be compared with the total $5,000, but rather with the portion of the $5,000 that was tendered for the knee claim. However, the circuit court noted that the burden of proof is on the claimant to show he is entitled to an attorney fee and thus he has to demonstrate how much of the lump-sum offer was for each claim, “especially since he did not object to the nature of the lump-sum offer at the time.” Since the claimant could not do this, the court compared the total amount awarded with the amount offered. The court concluded that he was not entitled to fees under this option because $932 (for his knee) plus $0 (for his back) is less than $5,000.

Topic  28.2.2  Attorney Fees––Tender of Compensation

Woods v. Director, OWCP, (Unpublished) 2003 U.S. App. LEXIS 3590 (Ninth Cir. No. 01-71920) (9^th Cir. February 25, 2003).

            Where an employer makes voluntary payments and a claimant does not receive greater compensation from an ALJ Decision and Order, the claimant is not entitled to an attorney fee. The Ninth Circuit found that, "The record contains no evidence that the employer's advance payment made before [the claimant] filed her claim was conditional or contingent in nature. Because the [ALJ's] award did not exceed the amount of the advance payment, [the claimant] is not entitled to attorney's fees under the LHWCA."

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Topic  28.2.4  Attorney fees—Additional Compensation

Davis v. Avondale Industries, Inc., (1996-LHC-2209)(July 19, 2004).

            In this Decision and Order on Remand Awarding Attorney's Fees the Fifth Circuit remanded the matter for the ALJ to further analyze and quantify to what extent the claimant's attorney had secured something of value for his client in winning her right to future medical benefits. Claimant's counsel asserted that the value of the award should be measured based on the claimant's psychiatric prognosis and course of treatment at the time of the hearing. The employer contended that that the claimant's actual psychiatric care after the award was made should control. (Claimant never claimed any medical expenses for psychiatric care after her award.)

            The ALJ found that holding that the amount of an attorney's fee is contingent on post-award actions and events would lead to absurd and chaotic results. "The livelihood of a claimant's attorney would be fixed to the fortune and decisions of his or her claimant. For instance, the premature death of a claimant, due to an event unrelated to his or her claim, surely should not affect how much the claimant's attorney is paid for securing a prior award of future medical care. Likewise, attorney's earnings should not be affected by how regularly their claimants keep doctors' appointments after the hearing. Instead, the proper evaluation for determining the value of an award for future medical care is consideration of the treatment that will be required by the claimant in the future and the cost of such treatment."

            Citing Fortier v. Bath Iron Works Corp., 15 BRBS 261 (1982)(Deputy Commissioner does not have the power to modify an attorney's fee award where the deputy commissioner determined pursuant to Section 22 that the compensation award must be increased, decreased, or terminated. The Board reasoned that attorney's fee for an original compensation award rationally could not be reduced some years later merely because the claimant's physical condition became improved.), the ALJ found that the quantification of the claimant's future psychiatric care award must be made based on her psychiatric prognosis and course of treatment at the time of the hearing.

Topic  28.2.4  Employer's Liability—Additional Compensation

Singleton v. National Maintenance & Repair, (Unpublished) (BRB No. 03-0404)(March 10, 2004).

            The Board reversed an attorney fee award where after the formal hearing the employer paid less compensation (for injuries to the left and right upper extremities) than it was voluntarily paying before the hearing. While acknowledging that the percentage for one extremity had been increased as a result of the formal hearing, the Board noted that the percentage for the other extremity had drastically decreased. Thus the claimant did not receive greater overall compensation after the hearing.

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Topic  28.2.5  Amount of Award

                        (See also Toic 28.5, 28.6, infra.)

ERRATA

            The first paragraph of this subsection should read as follows:

            Section 28(b) provides that an attorney’s fee awarded under this subsection is to be based solely on the difference between tha amount awarded and the amount tendered or paid.  The Board has held, however, that there is no requirement that the amount of the attorney’s fee award be commensurate with claimant’s award of benefits.  Nash v. Strachan Shipping Co., 15 BRBS 386 (1983), sub nom. Strachan Shipping Co. v. Nash, 782 F.2d 513 (5^th Cir. 1986).

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Topic  28.3     Attorney's Fees–Claimant's Liability

Terrell v. Washington Metropolitan Area Transit Authority, 36 BRBS 133 (2002). [See next entry.]

            This is a Reconsideration of the Board's previous holding in this matter found at 36 BRBS 69 (2002). That Order held that the employer could not be held liable for the claimant's attorney's fee for the work counsel performed and that the claimant was liable for a reduced fee that was made a lien on his total disability compensation award. In a plurality decision on reconsideration, counsel successfully sought to hold the claimant liable for the entire fee he had requested.

            This matters stems from a modification request brought by the director. Previously the claimant contended that the Director had no standing to appeal to the Board, and that the appeal was untimely. The Board rejected those contentions. In the appeal on the merits, the claimant opposed the Director's contention that the employer retained standing to oppose a modification request under the pre-1984 Amendment Act, and was unsuccessful in defending the ALJ's decision excluding the employer from the proceedings. Citing Hensley v. Eckerhart, 461 U.S. 424 (1983), the Board then held that counsel for the claimant was not entitled to a fee for the work performed on research, motions or briefs, as the claimant was unsuccessful in maintaining the status quo.

            Now the Board holds that Hensley does not apply since Hensley is only applicable to fee shifting statutes such as Sections 28(a) and (b) and not to Section 28(c) where attorney's fee entitlement is determined by the necessary work performed in securing n award. Citing 20 C.F.R. § 802,203(e), the Board found the work counsel performed to be "necessary" in that he advocated a position protective of his client's interest. Noting that, on remand, the claimant had been awarded ongoing permanent total disability benefits and the entitlement to cost-of-living adjustments, the Board found that the claimant was financially able to pay the $4,100.00 attorney fee.

            In a concurring opinion, Judge McGranery agreed that the claimant should be responsible for the attorney fee under Section 28(c), but took issue with the plurality's interpretation of Hensley (that fee shifting does not apply to the instant case because fee liability had not shifted to the employer.). "I think that the Hensley analysis provides guidance whenever a judicial tribunal is responsible for directing an attorney's fee award." She went on to note; "The flaw in the majority's analysis is that it fails to distinguish between substantive and procedural issues. Although claimant was unsuccessful in opposing employer's participation in the modification proceeding, this was purely a procedural issue. The prohibition against compensating attorneys for work on unsuccessful issues concerns substantive issues, i.e., claims."

Topic  28.3     Attorney's Fees–Claimant's Liability

Terrell v. Washington Metropolitan Area Transit Authority (WMATA), 36 BRBS 69 (2002).  [See Above.]

            The issue here is whether an employer who is granted Section 8(f) relief, is dismissed from a subsequent modification proceeding by the ALJ on the claimant's motion, and who did not participate in the appeal of the modification before the Board, is responsible for the claimant's attorney fee at the Board level. (The employer did not participate in the Director's appeal before the Board, and the claimant argued in response to the Director's appeal for the employer's continued exclusion from the case.) The Board found that such an employer is not liable for an attorney fee. Furthermore, the Board found that, "The fact that employer had an economic interest in the outcome (due to the increased assessment under Section 44... .), is not sufficient for employer to be held for claimant's attorney's fee for work performed before the Board under the facts of this case." Thus, the Board found that since the claimant's attorney obtained an award of permanent total disability, an attorney's fee for his counsel can be made a lien on the claimant's compensation.

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Topic  28.3.1  Liability of Special Fund

Terrell v. Washington Metropolitan Area Transit Authority (WMATA), 36 BRBS 133 (2002).

            The issue here is whether an employer who is granted Section 8(f) relief, is dismissed from a subsequent modification proceeding by the ALJ on the claimant's motion, and who did not participate in the appeal of the modification before the Board, is responsible for the claimant's attorney fee at the Board level. (The employer did not participate in the Director's appeal before the Board, and the claimant argued in response to the Director's appeal for the employer's continued exclusion from the case.) The Board found that such an employer is not liable for an attorney fee. Furthermore, the Board found that, "The fact that employer had an economic interest in the outcome (due to the increased assessment under Section 44... .), is not sufficient for employer to be held for claimant's attorney's fee for work performed before the Board under the facts of this case." Thus, the Board found that since the claimant's attorney obtained an award of permanent total disability, an attorney's fee for his counsel can be made a lien on the claimant's compensation.

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Topic  28.4     Attorney Fees Application Process

Ferguson v. Newport News Shipbuilding and Dry Dock Co., 36 BRBS 17 (2002).

            In this matter, claimant's prior counsel filed a fee petition documenting services rendered on claimant's behalf. The district director refused to impose liability for a fee on the claimant, stating that he was unable to determine if the claimant understood his counsel's representation, including its necessity and reasonableness, whether or not there had been a successful prosecution, and claimant's ability to pay the fee. The Board found that the district director erred in declining to consider his fee petition listing services allegedly rendered while the case was before the district director. Citing 20 C.F.R. § 702.132, the Board found that counsel was in conformance with the regulations. Furthermore, the Board stated, " [W]hile the district director chastises Mr. Donaldson for his failure to create a record before an administrative law judge supportive of his position regarding the payment of a fee, the applicable regulations implementing the Act provide for the compilation of an administrative file which give the district director the requisite information needed for the consideration of counsel's fee petition.....Thus, the administrative file in the district director's possession should contain all of the information needed for that official to adequately consider the fee proposed by claimant's former counsel."

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Topic  28.4.1  Attorney Fees--Application Process—Content Requirements

Coleman v. Bollinger Shipyard, Inc. (Coleman I), 37 BRBS 606(ALJ) (2001 LHC 2882)(August 8, 2003) (Supplemental Decision and Order Denying Attorney's Fees), reconsidered at Coleman v. Bollinger Shipyard, Inc. (Coleman II), 37 BRBS 620(ALJ) (Sept. 19, 2003) (Reconsideration Denied).

            This is a denial of attorney fees although the claimant was successful in the prosecution of his claim. In Coleman I, a Request for Production of Documents was served on the claimant's counsel in an attempt to verify which entries in the fee application were attributable to the attorney of record or to other persons. This Request for Production sought to inspect and copy "any and all records and documents, including but not limited to his time sheets and work sheets in support of this [fee application]… ." When the claimant's Counsel moved for a Protective Order, the employer filed an opposition, averring that the fee application showed "no effort was made to verify whether all of the time entries were made by [Counsel] or perhaps another attorney or support staff." The employer argued that its discovery request should be granted or in the alternative, the ALJ should conduct an in camera inspection of the requested documents.

            Counsel for the claimant indicated that he had performed "virtually all work" on the claim but conceded that "a few items were performed by his former associate." Coleman I. The ALJ noted that the fee petition failed to identify the associate and subsequently ordered an in camera inspection in which Counsel was directed to provide a "privilege log detailing the documents supporting the fee application, e.g., any and all time sheets and work sheets, and any privilege precluding its production along with copies of all such documents for an in camera inspection…." Eventually the ALJ denied the Motion for Protective Order and directed Counsel to respond to the Request for Production, after Counsel failed to comply with the Order by submitting a box of paper without a privilege log.

            The ALJ noted in his Order Denying Attorney's Fees (Coleman I), that Counsel's former associate had appeared with records, in response to the Order for Production and that the attorney "allegedly indicated he performed substantial work on Claimant's case. Moreover, [the attorney] allegedly reported there were never any time sheets nor any work sheets generated in support of Counsel's fee petition, which was prepared by [the attorney]." Coleman I.

            Thereafter, the employer sought the depositions of both the associate and Counsel. In the ensuing litigation, the employer argued that without any supporting time sheets or work sheets, "the only other discovery device available to verify the accuracy of the fee petition [before the ALJ and the District Director] is by deposition." See Coleman I. In an Order Denying Motion to Quash Subpoena, the ALJ stated that Counsel "has failed to comply with the undersigned's order…to provide his time or work sheets and a privilege log of protected documents." See Coleman I. In Coleman I, the ALJ found that the former associate's "apparent assistance in the case and the fee application preparation was not established from the fee petitions in the instant matter. Accordingly, discovery by deposition was the only remaining discovery device useful to verify the accuracy of Counsel's fee petition."

            At deposition, the former associate indicated that time sheets were "not really kept" and that occasionally notations would be written on a file. Coleman I. The former associate admitted that he could not say how much time was "actually spent on this file" because "there are no records." See Coleman I. According to the ALJ, although the former associate prepared the fee petition, he had "no idea how much time [Counsel] actually spent on the file." See Coleman I.

            In denying a fee, the ALJ noted that Counsel failed to comply with the Decision and Order or the Discovery Order and that "there are absolutely no billing records nor any time sheets or work sheets supporting the attorney's fee or his expenses." Coleman I. Quoting the longshore regulations, the ALJ stated that this failure to comply may result in a ruling "that a pleading, or part of a pleading, or a motion or other submission by the non-complying party, concerning which the order or subpoena was issued, be stricken, or that a decision of the proceeding be rendered against the non-complying party, or both. 29 C.F.R. § 18.6(b)(2)(v)(emphasis added by ALJ).

            The ALJ concluded, "Discovery devices useful to determine the accuracy of Counsel's fee petition have been exhausted." He explained:

As noted above, discovery devices produced only testimony contrary to Counsel's contentions and a box of documents which is not useful in resolving this matter. The complete failure to meaningfully document legal services and expenses prevents a reasoned decision in this matter and constrains the undersigned from rendering extensive findings regarding a reasonable attorney's fee and expenses.

In light of the foregoing, I find Counsel has failed to carry his burden of establishing entitlement to an attorney fee award by documenting the appropriate hours expended and hourly rates charged. Accordingly, his request for an attorney's fee and expenses is DENIED.

Coleman I.

            On reconsideration, after re-opening the record to receive additional exhibits, the attorney fee request was again denied. Coleman II.

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Topic  28.4.2  Attorney Fees--Application Process—Due Process Hearing Requirements

Vercher v. Ceres Marine Terminals, (Unpublished)(BRB No. 03-0481)(March 17, 2004).

            The Board rejected the claimant’s argument that the employer had waived its right to object to an attorney fee because the objections were written by the employer’s claims manager and not by an attorney.  “employer’s claims manager has the authority to handle claims and did so throughout the course of these proceedings in accordance with 20 C.F.R. § 702.131 (parties may be represented in any proceeding by an attorney or other person previously authorized in writing by such party to act).  When presented with a fee petition, it was not unreasonable for employer’s claims manager to represent employer’s interests by filing objections.  Indeed, nothing in the Act requires the person writing objections to a fee petition to be an attorney.”

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Topic  28.5     Attorney Fees—Amount of Award

Avondale Industries, Inc. v. Davis, 348 F.3d 487 (5th Cir. 2003).

            Once again, the circuit court applies Hensley v. Eckerhart, 461 U.S. 424 (1983). The Fifth Circuit noted the two step process applicable to an award of attorney's fees: (1) The ALJ should confine the fee award only to work done on the successful claims. (2) The success obtained on the remaining claims should be proportional to the efforts expended by counsel. The court acknowledged that when a party achieves only partial or limited success, then compensation for all of the hours reasonably expended on the litigation as a whole may be an excessive amount. Here, after determining that counsel's work was "intimately related" to the claims on which the claimant was successful, the ALJ reduced the entire fee by one third in light of the fact that the attorney was only successful on four of six claims. However, the Fifth Circuit found that the ALJ failed to take into account the fact that the claimant recovered a limited amount in penalties and interest, plus future medical costs when reducing the fees in light of the success obtained. The court noted that the ALJ failed to quantify the claimant's award and take that into consideration when determining the amount of the attorney's fee award.

Topic  28.5     Amount of Award—Sufficient Explanation

Davis v. Avondale Industries, Inc., (1996-LHC-2209)(July 19, 2004).

            In this Decision and Order on Remand Awarding Attorney's Fees the Fifth Circuit remanded the matter for the ALJ to further analyze and quantify to what extent the claimant's attorney had secured something of value for his client in winning her right to future medical benefits. Claimant's counsel asserted that the value of the award should be measured based on the claimant's psychiatric prognosis and course of treatment at the time of the hearing. The employer contended that that the claimant's actual psychiatric care after the award was made should control. (Claimant never claimed any medical expenses for psychiatric care after her award.)

            The ALJ found that holding that the amount of an attorney's fee is contingent on post-award actions and events would lead to absurd and chaotic results. "The livelihood of a claimant's attorney would be fixed to the fortune and decisions of his or her claimant. For instance, the premature death of a claimant, due to an event unrelated to his or her claim, surely should not affect how much the claimant's attorney is paid for securing a prior award of future medical care. Likewise, attorney's earnings should not be affected by how regularly their claimants keep doctors' appointments after the hearing. Instead, the proper evaluation for determining the value of an award for future medical care is consideration of the treatment that will be required by the claimant in the future and the cost of such treatment."

            Citing Fortier v. Bath Iron Works Corp., 15 BRBS 261 (1982)(Deputy commissioner does not have the power to modify an attorney's fee award where the deputy commissioner determined pursuant to Section 22 that the compensation award must be increased, decreased, or terminated. Board reasoned that attorney's fee for an original compensation award rationally could not be reduced some years later merely because the claimant's physical condition became improved.), the ALJ found that the quantification of the claimant's future psychiatric care award must be made based on her psychiatric prognosis and course of treatment at the time of the hearing.

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Topic  28.6     Factors Considered in Award

ERRATA

            “Nash v. Strachan Shipping Co., 15 BRBS 386 (1983), sub nom. Strachan Shipping Co. v. Nash, 782 F.2d 513 (5^th Cir. 1986)” is the correct cite for this case.

Topic  28.6     Factors Considered in Award

Davis v. Avondale Industries, Inc., (1996-LHC-2209)(July 19, 2004).

            In this Decision and Order on Remand Awarding Attorney's Fees the Fifth Circuit remanded the matter for the ALJ to further analyze and quantify to what extent the claimant's attorney had secured something of value for his client in winning her right to future medical benefits. Claimant's counsel asserted that the value of the award should be measured based on the claimant's psychiatric prognosis and course of treatment at the time of the hearing. The employer contended that that the claimant's actual psychiatric care after the award was made should control. (Claimant never claimed any medical expenses for psychiatric care after her award.)

            The ALJ found that holding that the amount of an attorney's fee is contingent on post-award actions and events would lead to absurd and chaotic results. "The livelihood of a claimant's attorney would be fixed to the fortune and decisions of his or her claimant. For instance, the premature death of a claimant, due to an event unrelated to his or her claim, surely should not affect how much the claimant's attorney is paid for securing a prior award of future medical care. Likewise, attorney's earnings should not be affected by how regularly their claimants keep doctors' appointments after the hearing. Instead, the proper evaluation for determining the value of an award for future medical care is consideration of the treatment that will be required by the claimant in the future and the cost of such treatment."

            Citing Fortier v. Bath Iron Works Corp., 15 BRBS 261 (1982)(Deputy commissioner does not have the power to modify an attorney's fee award where the deputy commissioner determined pursuant to Section 22 that the compensation award must be increased, decreased, or terminated. Board reasoned that attorney's fee for an original compensation award rationally could not be reduced some years later merely because the claimant's physical condition became improved.), the ALJ found that the quantification of the claimant's future psychiatric care award must be made based on her psychiatric prognosis and course of treatment at the time of the hearing.

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Topic  28.6.3  Attorney Fees-Fee Petition

ERRATA

            The bold faced statement found under this subsection should be changed to read as follows:

…Compare this rational to the holding in Sproull where the Board sitting en banc held that the “activity” was not necessary to the protection of the claimant’s entitlement, and hence it is a clerical function….

Topic  28.6.3  Attorney Fees-Fee Petition

Coleman v. Bollinger Shipyard, Inc. (Coleman I), 37 BRBS 606(ALJ) (2001 LHC 2882)(August 8, 2003) (Supplemental Decision and Order Denying Attorney's Fees), reconsidered at Coleman v. Bollinger Shipyard, Inc. (Coleman II), 37 BRBS 620(ALJ) (Sept. 19, 2003) (Reconsideration Denied).

            This is a denial of attorney fees although the claimant was successful in the prosecution of his claim. In Coleman I, a Request for Production of Documents was served on the claimant's counsel in an attempt to verify which entries in the fee application were attributable to the attorney of record or to other persons. This Request for Production sought to inspect and copy "any and all records and documents, including but not limited to his time sheets and work sheets in support of this [fee application]… ." When the claimant's Counsel moved for a Protective Order, the employer filed an opposition, averring that the fee application showed "no effort was made to verify whether all of the time entries were made by [Counsel] or perhaps another attorney or support staff." The employer argued that its discovery request should be granted or in the alternative, the ALJ should conduct an in camera inspection of the requested documents.

            Counsel for the claimant indicated that he had performed "virtually all work" on the claim but conceded that "a few items were performed by his former associate." Coleman I. The ALJ noted that the fee petition failed to identify the associate and subsequently ordered an in camera inspection in which Counsel was directed to provide a "privilege log detailing the documents supporting the fee application, e.g., any and all time sheets and work sheets, and any privilege precluding its production along with copies of all such documents for an in camera inspection…." Eventually the ALJ denied the Motion for Protective Order and directed Counsel to respond to the Request for Production, after Counsel failed to comply with the Order by submitting a box of paper without a privilege log.

            The ALJ noted in his Order Denying Attorney's Fees (Coleman I), that Counsel's former associate had appeared with records, in response to the Order for Production and that the attorney "allegedly indicated he performed substantial work on Claimant's case. Moreover, [the attorney] allegedly reported there were never any time sheets nor any work sheets generated in support of Counsel's fee petition, which was prepared by [the attorney]." Coleman I.

            Thereafter, the employer sought the depositions of both the associate and Counsel. In the ensuing litigation, the employer argued that without any supporting time sheets or work sheets, "the only other discovery device available to verify the accuracy of the fee petition [before the ALJ and the District Director] is by deposition." See Coleman I. In an Order Denying Motion to Quash Subpoena, the ALJ stated that Counsel "has failed to comply with the undersigned's order…to provide his time or work sheets and a privilege log of protected documents." See Coleman I. In Coleman I, the ALJ found that the former associate's "apparent assistance in the case and the fee application preparation was not established from the fee petitions in the instant matter. Accordingly, discovery by deposition was the only remaining discovery device useful to verify the accuracy of Counsel's fee petition."

            At deposition, the former associate indicated that time sheets were "not really kept" and that occasionally notations would be written on a file. Coleman I. The former associate admitted that he could not say how much time was "actually spent on this file" because "there are no records." See Coleman I. According to the ALJ, although the former associate prepared the fee petition, he had "no idea how much time [Counsel] actually spent on the file." See Coleman I.

            In denying a fee, the ALJ noted that Counsel failed to comply with the Decision and Order or the Discovery Order and that "there are absolutely no billing records nor any time sheets or work sheets supporting the attorney's fee or his expenses." Coleman I. Quoting the longshore regulations, the ALJ stated that this failure to comply may result in a ruling "that a pleading, or part of a pleading, or a motion or other submission by the non-complying party, concerning which the order or subpoena was issued, be stricken, or that a decision of the proceeding be rendered against the non-complying party, or both. 29 C.F.R. § 18.6(b)(2)(v)(emphasis added by ALJ).

            The ALJ concluded, "Discovery devices useful to determine the accuracy of Counsel's fee petition have been exhausted." He explained:

As noted above, discovery devices produced only testimony contrary to Counsel's contentions and a box of documents which is not useful in resolving this matter. The complete failure to meaningfully document legal services and expenses prevents a reasoned decision in this matter and constrains the undersigned from rendering extensive findings regarding a reasonable attorney's fee and expenses.

In light of the foregoing, I find Counsel has failed to carry his burden of establishing entitlement to an attorney fee award by documenting the appropriate hours expended and hourly rates charged. Accordingly, his request for an attorney's fee and expenses is DENIED.

Coleman I.

            On reconsideration, after re-opening the record to receive additional exhibits, the attorney fee request was again denied. Coleman II.

Topic  28.6.3  Fee Petition

            Whether attorney fees are recoverable for time spent doing a fee petition is in controversy.  The Board’s en banc position is at variance from the Ninth Circuit’s position, as well as from two Board three judge panel positions.

            In Sproull v. Stevedoring Services of America, 28 BRBS 271(1994) (Decision on Recon.) (en banc), the Board  held that this was an activity that was not reasonably necessary to protect claimant's interests. See also,  Shaller v. Cramp Shipbuilding & Dry Dock Co., 23 BRBS 140 (1989); Berkstresser v. Washington Metro. Area Transit Auth., 16 BRBS 231 (1984). The Board felt that each attorney should keep a running, accurate, total of the hours expended on the case so that the preparation of the fee request "should be, for the most part, a clerical function included in overhead expenses." Sproull, 28 BRBS 271, 277; Morris v. California Stevedore & Ballast Co., 10 BRBS 375, 383 (1979).

            The Board distinguished its position from that taken in the two non-longshore cases of Hensley v. Eckerhart, 461 U.S. 424 (1988) and Rose Pass Mines, Inc. v. Howard, 615 F.2d 1088 (5th Cir. 1980). Hensley, a civil rights case, involved significantly more hours and people that needed to be accounted for in the fee motion than in most LHWCA claims. The Rose Pass Mines, Inc. case was a bankruptcy proceding which by statute demands exhaustive detail in the fee petition.

            In the Ninth Circuit it is acceptable to award fees for the time spent preparing the attorney's fee application. Anderson v. Director, OWCP, 91F.3d 1322 (9th Cir. 1996). In re Nucorp Energy, Inc., 764 F.2d 655 (9th Cir. 1985), like the Rose Pass Mines, Inc. case, was a bankruptcy case and the Ninth Circuit eventually followed the holding of the Fifth Circuit in awarding attorney's fees including the time it took to prepare the motion. However, before following the Rose Pass Mines, Inc. holding, the Ninth Circuit in In re Nucorp Energy, Inc. exhaustingly discussed how other statutory fee cases have dealt with the issue. In looking mainly to section 1988 civil rights cases, the Ninth Circuit finds the support for their position in bankruptcy proceedings.

            Another application of the Ninth Circuit's rule, granting compensation for the time needed to prepare the fee application, is seen in Clark v. City of Los Angeles, 803 F.2d 987 (9th Cir. 1986). Clark is a civil rights case which follows the rational of In re Nucorp Energy, Inc. without providing any expansion on the line of reasoning.   Anderson, which applies the fee application rule to LHWCA cases in the Ninth Circuit, relies rigidly on the wording of 42 U.S.C. § 1988.487 and Clark.  Anderson v. Director, OWCP, 91 F.3d 1322,1325 (9th Cir. 1996). After citing these two items the Anderson court uses the holding in City of Burlington v. Dague, 505 U.S. 557 (1992)(A ‘reasonable” fee should mean the same thing under all federal fee-shifting statutes.) saying that "a reasonable fee applies uniformly to all federal fee-shifting statutes," to extend the civil rights holdings on the issue to LHWCA. Id. Compare this rational to the holding in Sproull where the Board sitting en banc held that the "activity" was not necessary to the protection of the claimant's entitlement, and hence it is a clerical function. Sproull, 28 BRBS 271, 277 (en banc).

            In Sproull, the Board noted that in most longshore cases, unlike other fee-shifting statutes, the fee request is “quite small in comparison” to cases where the litigation is often complex and lengthy.  “Thus, the fee petitions will necessarily be shorter and less complex.”   Sproull, at 278.  The en banc Board saw no reason to depart from its longstanding position that time spent preparing a fee petition is not compensable.  See e.g., Verderane v. Jacksonville Shipyards, Inc., 14 BRBS 220.15 (1981); Keith v. General Dynamics Corp., 13 BRBS 404 (1981); Staffile v. International Terminal Operating Co., Inc., 12 BRBS 895 (1980).

            In Sproull, the Board noted that the Black Lung regulations provide that no fee approval shall include payment for time spent in preparation of a fee application.  20 C.F.R. § 725.366(b).  However, it should be noted that the regulations pertaining to longshore fees are silent on the issue.  20 C.F.R. § 702.132.  It should also be noted that three judge panels of the Board have followed the Anderson decision in Price v. Brady-Hamilton Stevedore Co., 31 BRBS 91 (1996) (Ninth Circuit) and Hill v. Avondale Industries, Inc., 32 BRBS 186 (1998) (Fifth Circuit).

            The claimant’s attorney may be awarded fees for time spent defending the fee petition.  Byrum v. Newport News Shipbuilding & Dry Dock Co., 14 BRBS 833 (1982); Jarrell v. Newport News Shipbuilding & Dry Dock Cco., 14 BRBS 833 (1982); Jarrell v. Newport News Shipbuilding & Dry Dock Co., 14 BRBS 883 (1982); Morris v. California Stevedore & Ballast Co., 10 BRBS 375 (1979).  

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Topic  28.6.4  Attorney Fees—Losing On An Issue

Avondale Industries, Inc. v. Davis, 348 F.3d 487 (5th Cir. 2003).

            Once again, the circuit court applies Hensley v. Eckerhart, 461 U.S. 424 (1983). The Fifth Circuit noted the two step process applicable to an award of attorney's fees: (1) The ALJ should confine the fee award only to work done on the successful claims. (2) The success obtained on the remaining claims should be proportional to the efforts expended by counsel. The court acknowledged that when a party achieves only partial or limited success, then compensation for all of the hours reasonably expended on the litigation as a whole may be an excessive amount. Here, after determining that counsel's work was "intimately related" to the claims on which the claimant was successful, the ALJ reduced the entire fee by one third in light of the fact that the attorney was only successful on four of six claims. However, the Fifth Circuit found that the ALJ failed to take into account the fact that the claimant recovered a limited amount in penalties and interest, plus future medical costs when reducing the fees in light of the success obtained. The court noted that the ALJ failed to quantify the claimant's award and take that into consideration when determining the amount of the attorney's fee award.

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Topic  28.6.7.2           Attorney’s Fees–Claimant’s Costs–Medical Reports and Testimony

Zeigler Coal Co. v. Director, OWCP., 326 F.3d 894 (7th Cir. 2003).

            The Seventh Circuit found that Section 28(d) of the LHWCA could be used to award fees for medical experts who submitted reports but did not testify.  “[T]he text of section 28(d) of the Longshoremen’s Act addresses ‘the reasonableness of the fees of the expert witness’ within the context of assessing ‘as costs, fees and mileage for necessary witnesses’ to an employer against whom attorneys’ fees also were assessed.”  The court rejected the employer’s argument that the claimant should only be able to recover the fees of his medical experts if they appear at the ALJ hearing.  The court held that, if the medical reports are submitted as evidence before the ALJ, they are recoverable as costs.

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Topic  28.9     Attorney Fees--Settlements

Jenkins v. Puerto Rico Marine, Inc., 36 BRBS 1 (2002).

            Here the claimant argues that the district director erred in denying his request for penalties and interest on Section 8(i) settlement proceeds. When the district director received the parties' application for settlement, the case was on appeal before the Eleventh Circuit and thus the district director did not have jurisdiction. He therefore concluded that the 30-day time limit for automatic approval of the settlement was tolled and instructed the parties to request remand of the case so that he could fully consider the agreement. The crux of the claimant's contention is that, contrary to the district director's findings, the 30 day time limit for consideration of the settlement could not be tolled and, therefore, the settlement was "automatically" approved and as a result, the employer was liable for interest and penalties which accrued from the date of the 30th day until payment to the claimant of the agreed upon amounts.

            Citing Section 702.241(b), 20 C.F.R.. § 702.241(d) ("... The thirty day period as described in paragraph (f) of this section begins when the remanded case is received by the adjudicator."), the Board held that the 30-day period had properly been tolled. The Board further noted that the 30-day period would have been tolled in any event since the parties had not provided a complete application as needed to comply with Section 702.242 of the regulations.

            Claimant also alleged that in approving the settlement, the district director in effect nullified the Board's prior attorney fee award and that award should be considered separate and apart from the attorney's fee agreed upon in the parties' settlement agreement. However, based on the wording in the settlement agreement, the Board found that the district director rationally construed the settlement agreement as conclusively deciding the issue of all attorney's fees due in this case.

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Topic  28.10.2            Attorney Fees–Timely Appeal/Finality

Millet v. Avondale Industries, (Unreported)(E.D. La. 2003),2003 WL 548879 (Feb. 24,2003).

            The federal district court sanctioned use of Section 18 and Section 21(d) by a claimant's attorney to recover costs and expenses incurred when the employer first refused to pay the attorney fee which had been confirmed on appeal by the circuit court when the circuit court had also confirmed the compensation order. The district court judge found that, "The purpose and spirit of the LHWCA is violated when an employer refuses to pay an award of attorney's fees pursuant to a final order and suffers no consequences. That result awards bad behavior and thwarts the purpose of the LHWCA....The fact that Avondale promptly paid Millet upon notice of this lawsuit does not relieve Avondale of responsibility. Millet was forced to incur costs and expenses to secure payment of a final award pursuant to the provisions of the LHWCA, to which he was rightfully entitled. If Millet must bear the cost of enforcement of that final fee award then he cannot receive ‘‘the full value of the fees to which [he is] entitled under the Act.'"

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