PART VIII ATTORNEY FEES
PART VIII
ATTORNEY FEES
A. REVIEW OF ATTORNEY FEE AWARDS MADE BELOW
The Department's attorney fee scheme prohibiting a contingent fee arrangement between counsel and claimant does not violate due process. Department of Labor v. Triplett, 110 S.Ct. 1428, 13 BLR 2-364 (1990).
Under the Act, a claimant's attorney is prohibited from charging a fee unless the fee has been approved by an agency of the Department or a court. 33 U.S.C. §928(c); 20 C.F.R. §725.365. The regulations also provide that "[n]o contract or prior agreement for a fee shall be valid." 20 C.F.R. §725.365.
2. SUCCESSFUL PROSECUTION OF THE CLAIM
In reversing the Board's affirmance of an administrative law judge's award of attorney fees, court held that the "reasonable belief" of claimant, a Part B beneficiary, that he had a valid claim under Part C of the Act was inadequate to support the award under 33 U.S.C. §928(a) which requires a successful prosecution of the claim. Director, OWCP v. Baca, 927 F.2d 1122, 15 BLR 2-42 (10th Cir. 1991).
A fee may not be approved where the claimant does not prevail. General Dynamics Corp. v. Horrigan, 848 F.2d 321 (1st Cir. 1987), cert. denied, 109 S.Ct. 554 (1988).
After determining that the proper forum for approval was the body before which the attorney's work was performed, the court, citing 33 U.S.C. §928(c), approved a fee settlement agreement for services before it, even though the final compensation order had not been entered. Eifler v. Peabody Coal Co., 13 F.3d 236, 18 BLR 2-86 (7th Cir. 1993).
4. ISSUES ON APPEAL OF ATTORNEY FEE AWARDS
a. Opposition to Attorney Fees
b. Counsel's Appeal of Substantial Reductions in the Requested Fee
It is not unreasonable or an abuse of discretion where the approved hourly rate is lower than the national average if the work was performed in a routine case not calling for special ability and effort. Esselstein v. Director, OWCP, 676 F.2d 228, 4 BLR 2-71 (6th Cir. 1982).
The attorney's risk of loss and the delay in payment can be reflected in the hourly rate charged by claimant's attorney. Velasquez v. Director, OWCP, 844 F.2d 738, 739 (10th Cir. 1988); Thompson v. Potashnick Construction Co., 812 F.2d 574, 577 (9th Cir. 1987).
5. LIABILITY FOR ATTORNEY FEES
Withdrawal is a concession of liability; therefore, the party withdrawing controversion is liable for claimant's attorney fee under 20 C.F.R. §725.413(b). Bethlehem Mines Inc. v. Director, OWCP [Markovich], 854 F.2d 632, 11 BLR 1-105 (1988); see also Capelli v. Bethlehem Mines Corp., 11 BLR 1-129 (1988)(construing the court's holding in Markovich).
The Trust Fund is liable for the payment of attorneys' fees in the same manner as an employer. Director, OWCP v. Black Diamond Coal Mining Co., 598 F.2d 945 (5th Cir. 1979); Director, OWCP v. Leckie Smokeless Coal Co., 598 F.2d 881 (4th Cir. 1979); Director, OWCP v. South East Coal Co., 598 F.2d 1046 (6th Cir. 1979); Republic Steel Corp. v. U.S. Department of Labor, 590 F.2d 77 (3d Cir. 1978). As one court stated, "the fund stands in the shoes of the employer for the purposes of the attorneys' fees provision in 33 U.S.C. §928(a)." Black Diamond, 598 F.2d at 953.
An award of an attorney fee does not include interest. Hobbs v. Director, OWCP, 820 F.2d 1528, 1530-1531 (9th Cir. 1987).