CYRUS BROWN                   )    BRB No. 97-0662
                              )
          Claimant-Petitioner      )
                              )
     v.                       )
                              )
MARYLAND SHIPBUILDING AND     )    DATE ISSUED:   12/23/1997
DRYDOCK COMPANY               )
                              )
          Self-insured             )
          Employer-Respondent )
                              )
TALBERT STYLES                )    BRB No. 97-0663
                              )
          Claimant-Petitioner      )
                              )
     v.                       )
                              )
MARYLAND SHIPBUILDING AND     )
DRYDOCK COMPANY               )
                              )
          Self-Insured             )
          Employer-Respondent )
                              )
RICHARD DOBIHAL               )    BRB No. 97-0664
                              )
     v.                       )
                              )
MARYLAND SHIPBUILDING AND     ) 
DRYDOCK COMPANY               )
                              )  
          Self-Insured             )
          Employer-Respondent )    DECISION and ORDER

     Appeals of the Decision and Order On Remand of Bruno DiSimone, District
     Director, United States Department of Labor.

     Clifford W. Cunniff, Baltimore, Maryland, for claimant.
     
     Richard W. Scheiner (Semmes, Bowen and Semmes), Baltimore, Maryland, for
     self-insured employer.

     Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER,
     Administrative Appeals Judges.

     PER CURIAM:

     Claimants appeal the Decision and Order On Remand (Case Nos. 4-27977, 4-28537,
4-28993) of District Director Bruno DiSimone awarding attorney's fees on claims
filed pursuant to  the provisions of the Longshore and Harbor Workers' Compensation
Act, as amended, 33 U.S.C. §901 et seq. (the Act). The amount
of an attorney's fee is discretionary and may be set aside only if the challenging
party shows it to be arbitrary, capricious, an abuse of discretion, or not in
accord with law.   See, e.g., Muscella v. Sun Shipbuilding & Dry Dock Co.,
12 BRBS 272 (1980). 

     These cases are before the Board for the second time.  In all three cases, the
respective claimants sought and were awarded benefits for a work-related hearing
loss, and claimant's counsel was awarded fees by the administrative law judge.  In
each case, claimant's counsel filed a fee petition for work performed the district
director.  In claimant Brown's case, counsel requested a fee in the amount of
$1,856.25, representing 13.75 hours of legal services at the hourly rate of $135. 
In claimant Styles' case, counsel requested a fee in the amount of $3,001.25,
representing 14.5 hours of legal services at the hourly rate of $185, and 4.25
hours of paralegal services at the hourly rate of $75.  In claimant Dobihal's case,
counsel requested a fee in the amount of $1,485, representing 11 hours of legal
services at the hourly rate of $135.  After considering employer's objections in
each case, the district director awarded claimants' counsel in claimant Brown's
case a fee of $999, representing 7.4 hours of legal services at the hourly rate of
$135; a fee of $1,297.50, representing 6 hours of legal services at the hourly rate
of $185 and 2.4 hours of paralegal services at the hourly rate of $75 in claimant
Styles' case; and, a fee of $931.50, representing 6.9 hours of legal services at
the hourly rate of $135 in claimant Dobihal's case.  

     Claimant's counsel appealed all three fee awards to the Board, contending that
the district director acted arbitrarily in reducing the number of hours requested
without providing an adequate explanation. On appeal, the Board, agreeing with
claimants,  vacated  the district director's Supplemental Orders awarding an
attorney's fee in each case, and remanded for him to specifically discuss the
application of the regulatory criteria of 20 C.F. R. §702.132 to the fee
reductions, and to specify the specific hours he disallowed and provide an
explanation therefor. Brown v. Maryland Shipbuilding and Drydock Company,
BRB No. 95-0881 (Sept. 12, 1996)(unpub.); Styles v. Maryland Shipbuilding and
Drydock Company, BRB No. 95-0882 (Sept. 12, 1996)(unpub.); Dobihal v.
Maryland Shipbuilding and Drydock Company, BRB No. 92-2662 (Apr. 26,
1995)(unpub.).  
     In a Decision and Order On Remand dated January 8, 1997, after consolidating
the cases for purposes of decision, the district director reinstated the prior fee
awards.  In reaffirming the prior fees, the district director stated that  all
three cases involved similar issues which were not complex.  Moreover, he noted
that in each case the fee request was considered excessive in view of counsel's
practice of minimum quarter-hour billing, citing  entries claimed for such things
as reviewing a conference notice, reviewing a boilerplate controversion notice, and
receipt of notice that the file had been sent to Office of Administrative Law
Judges as "examples of excessive billing."  Decision and Order on Remand at 2.  The
district director further noted that the informal conferences in the Brown
and Dobihal cases were both held on the same day, and determined that as the
5.25 hours claimed in both petitions relating to the conference was excessive, he
would allow only  3 hours and 12 minutes.  In addition, the district director
stated that "reducing the requested fees to minutes versus quarter hours resulted
in the fees previously awarded." Moreover, he noted that Administrative Law Judge
Holmes reduced the requested fee in the Styles case by 40 percent,
finding $185 per hour to be reasonable, and stated that this had served as a basis
for his decision.  He then noted that in Dobihal  the Board  found  a $185
hourly rate excessive.    

     On appeal, claimants contend that the district director made mathematic errors
in calculating the number of hours reduced attributable to duplicative time billed
relating to the informal conferences in the Brown and Dobihal cases.
In addition, claimants contend that the district director erred in calculating the
number of hours disallowable due to quarter-hour billing for routine tasks, and in
addition was under the mistaken belief that an hourly rate of $185 had been claimed
in the Brown and Dobihal cases.  Claimants urge the Board to modify
the district director's fee awards to reflect the correct calculations. Employer
responds, requesting affirmance of the district director's fee awards. 

     We agree with claimants that the district director's fee awards are not
supported by his reasoning.  A sufficient explanation for reductions in each fee
request must be provided. Devine v. Atlantic Container Lines, G.I.E., 23
BRBS 279 (1990); Bell v. Volpe/Head Construction Co., 11 BRBS 377 (1979). 
Where a district director has not set forth a sufficient explanation for the
reduction, the Board is prevented from reviewing the award and will remand the case
to the district director for an adequate explanation. Devine, 23 BRBS at
288; Speedy v. General Dynamics Corp, 15 BRBS 448 (1983).

     In his Decision and Order on Remand, despite the district director's general
statements that the administrative law judge reduced the fee in Styles by
40 percent, that he viewed the number of hours claimed in all three cases as
excessive in light of  counsel's practice of quarter-hour minimum billing and the
lack of complexity,  and that excessive time was claimed relating to the informal
conferences in the Brown and Dobihal cases, the district director's
failure to identify the specific hours he disallowed in each case precludes us from
determining whether the reductions he made were mathematically correct.  The 
general  reasoning provided by the district director, when considered in
conjunction with the fee requests made, do not justify his fee awards as the total
amount of time disallowed in each fee petition appears to be greater than the
amount of time claimed involving quarter-hour billing and entries related to the
informal conference.[1]   Moreover, the fact that
the administrative law judge reduced the number of hours claimed in the
Styles fee petition by 40 percent, does not, in any event, provide a proper
basis for the district director's fee reduction.  In addition, the district
director misinterpreted the Board's decision in Dobihal as stating that an
hourly rate of $185 is excessive; in actuality, the Board's decision does not
address this issue.  As the district director failed to comply with the Board's
instructions on remand to specify and explain his reductions, we must again vacate
the fee awards and remand the case for  him to specifically identify and explain
any reductions he makes.[2]   Devine, 23
BRBS at 288.

     Accordingly, the district director's Decision and Order on Remand is vacated,
and the cases are remanded for reconsideration consistent with this opinion.
     
     SO ORDERED.

                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge

                                                                   
                         NANCY S. DOLDER
                         Administrative Appeals Judge

To Top of Document

Footnotes.
 1)The district director stated that 5.25 hours had been claimed
in the fee petitions in the Brown and Dobihal cases in connection
with the informal conference held on November 16, 1989 and that he was reducing
this amount to 3 hours, 12 minutes. The district director did not, however,
identify how much time he was allowing in connection with the informal conference
in each case. Moreover, the fee petition reflects that only 5 hours were, in fact,
claimed.

      In addition, the district director reduced the fee requests made in the three
cases by an unspecified amount for quarter-hour minimum billing practices. Although
the district director appears to have reduced the time claimed in the three fee
petitions by a total of 36.2  attorney hours and 1.75 paralegal hours, the total
number of  quarter-hour entries claimed in these cases total only 9.25 attorney
hours and 1.75 paralegal hours.      

 Back to Text

 2)We note that, contrary to claimants' allegations in this
appeal, the district director was not under a misconception regarding the hourly
rates claimed in Brown and Dobihal;  the $135 hourly rate he awarded
was the hourly rate requested by counsel in these cases.
 Back to Text

To Top of Document