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DISCLAIMER: The Longshore Benchbook was created solely to assist the Office of Administrative Law Judges as a first reference in researching cases arising under the Longshore and Harbor Workers' Compensation Act, and extension acts, as amended. This Benchbook does not constitute the official opinion of the Department of Labor, the Office of Administrative Law Judges, or any individual judge on any subject. This Benchbook does not necessarily contain an exhaustive or current treatment of case holdings, and should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any given subject referred to therein. It is intended to be used as a research tool, not as final legal authority and should not be cited or relied upon as such.
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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Vercher v. Ceres Marine Terminals, (Unpublished)(BRB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."
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."
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) (9th 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.
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.
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).
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) (9th 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 28.2.4 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.
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 (5th Cir. 1986).
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.
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.
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."
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.
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.”
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.
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 (5th
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.
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).
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.
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.
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.
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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