JUDGES' BENCHBOOK:
Longshore and Harbor Workers' Compensation Act
April 16, 2002 [2002 Revision]
ATTORNEY'S FEES
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.
Section 28 of the LHWCA provides the only authority for an award of an attorney's fee to a
claimant's attorney. Generally, Section 28(a) applies when an employer denies a claimant's entitlement to
any compensation or continued compensation or when there is a controversy as to the nature and extent
of the claimant's disability. Baker v. Todd Shipyards Corp., 12 BRBS 309 (1980) (Once the employer
receives written notice of a claim, (and the claimant is ultimately successful) the employer is liable for the
claimant's attorney's fee.)
The regulations generally applicable to attorney's fee recovery for work
done before the district director, administrative law judge, or court, on claims
under the LHWCA, are contained at 20 C.F.R. §
702.131. The regulations generally applicable for attorney's fee recovery for work performed before the
Board are contained at 20 C.F.R. § 802.202.
In enacting the LHWCA, Congress sought not only to provide an incentive for employers to pay
valid claims rather than contest them, but to ensure that the value of an employee's statutory benefits could
not be diminished by the costs of legal services. Oilfield
Safety & Mach. Specialties, Inc. v. Harman
Unlimited, Inc., 625 F.2d 1248, 1257 (5th Cir. 1980). Consequently, except as outlined in Section 28.3,
infra, an award of attorney's fees will not work to offset a claimant's compensation award.
[ED. NOTE: For a discussion on burdens of proof, in relation to attorney fees, seeinfra, Topic
28.10.1 Standard of Review-Burdens.]
Section 28(a) provides:
If the employer or carrier declines to pay any compensation on or
before the thirtieth day after receiving written notice of a claim for
compensation having been filed from the deputy commissioner, on
the grounds that there is no liability for compensation within the
provisions of this Act, and the person seeking benefits shall
thereafter have utilized the services of an attorney at law in the
successful prosecution of this claim, there shall be awarded, in
addition to the award of compensation, in a compensation order, a
reasonable attorney's fee against the employer or carrier in an
amount approved by the deputy commissioner, Board, or court, as
the case may be, which shall be paid directly by the employer or
carrier to the attorney for the claimant in a lump sum after the
compensation order becomes final.
33 U.S.C. § 928(a).
Section 28(a) of the LHWCA provides that, in addition to the compensation award, the employer
is responsible for a reasonable attorney's fee when it denies claimant's entitlement to any compensation and,
thereafter, claimant utilizes the services of an attorney who engages in a successful prosecution of his claim.
Director, OWCP v. Baca, 927 F.2d 1122 (10th Cir. 1991); American Stevedores v. Salzano, 538 F.2d
933 (2d Cir. 1976); Rogers v. Ingalls Shipbuilding, Inc., 28 BRBS 89 (1993); Murphy v. Honeywell, Inc.
20 BRBS 68 (1986); see 20 C.F.R. § 702.134(a).
28.1.2 Successful Prosecution
In order for a fee to be awarded pursuant to Section 28(a), the claimant's
attorney must engage in a "successful prosecution" of the claim. 33 U.S.C. § 928(a); 20 C.F.R. § 702.134(a); Perkins v. Marine
Terminals Corp., 673 F.2d 1097 (9th Cir. 1982); Petro-Weld, Inc. v. Luke, 619 F.2d 418 (5th Cir.
1980); American Stevedores, Inc. v. Salzano, 538 F.2d 933 (2d Cir. 1976); Rogers v. Ingalls
Shipbuilding, Inc., 28 BRBS 89 (1993); Harms v. Stevedoring Servs. of America, 25 BRBS 375 (1992);
Kinnes v. General Dynamics Corp., 25 BRBS 311 (1992).
The courts have held "successful prosecution" to mean:
a) establishing jurisdiction under the LHWCA, Kinnes v. General Dynamics Corp.,
25 BRBS 311 (1992); Parrott v. Seattle Joint Port Labor Relations Comm. of the Pac.
Maritime Ass'n, 22 BRBS 434 (1989) (prevailing on the issue of status); Brattoli v.
International Terminal Operating Co., 2 BRBS 57 (1975);
b) establishing the claimant's right to past, present, or future medical benefits, Ingalls
Shipbuilding, Inc. v. Director, OWCP, 991 F.2d 163 (5th Cir. 1993); Bethlehem Steel
Corp. v. Mobley, 920 F.2d 558 (9th Cir. 1990); Ahmed v. Washington Metro. Area
Transit Auth., 27 BRBS 24 (1993); Maguire v. Todd Pac. Shipyards Corp., 25 BRBS
299 (1992); Merrill v. Todd Pac. Shipyards Corp., 25 BRBS 140 (1991); Fairley v.
Ingalls Shipbuilding, Inc., 25 BRBS 61 (1991);
c) successfully establishing a permanent disability, Landrum v. Air America, Inc., 534
F.2d 67 (5th Cir. 1976); Canty v. S.E.L. Maduro, 26 BRBS 147 (1992); Hamilton v.
Ingalls Shipbuilding, Inc., 26 BRBS 114 (1992);
d) a successful appeal by the claimant, Ford
Aerospace & Communications Corp.
v. Boling, 684 F.2d 640 (9th Cir. 1982); Hole v. Miami Shipyards Corp., 640 F.2d 769
(5th Cir. 1981) (if claimant is successful at a higher adjudicatory level, counsel is entitled
to fees for all services rendered at each level of adjudication, even if claimant was
unsuccessful at a particular level); White
v. Newport News Shipbuilding & Dry Dock Co.,
633 F.2d 1070 (4th Cir. 1980); Overseas African Constr. Corp. v. McMullen, 500 F.2d
1291 (2d Cir. 1974); Dupre v. Cape Romain Contractors, Inc., 23 BRBS 86 (1989);
e) successfully defending an appeal, Hensley v. Washington Metro. Area Transit
Auth., 690 F.2d 1054 (D.C. Cir. 1982); National
Steel & Shipbuilding Co. v. Director,
OWCP, 616 F.2d 420 (9th Cir. 1980); Ryan-Walsh Stevedoring Co. v. Trainer, 601
F.2d 1306 (5th Cir. 1979); Newport
News Shipbuilding & Dry Dock Co. v. Graham,
573 F.2d 167 (4th Cir. 1978), cert. denied, 439 U.S. 979 (1979); Lebel v. Bath Iron
Works Corp., 544 F.2d 1112 (1st Cir. 1976); Atlantic & Gulf
Stevedores v. Director, OWCP, 542 F.2d 602 (3d Cir. 1976); American Stevedores v. Salzano, 538 F.2d 933
(2d Cir. 1976); Mikell v. Savannah Shipyard Co., 26 BRBS 32 (1992);
f) succeeding in obtaining benefits in a controverted claim subsequent to an informal
hearing before the district director, even though the administrative law judge ultimately
denies the claim for permanent total disability benefits, Wells v. International Great Lakes
Shipping Co., 14 BRBS 868 (1982);
g) successfully prosecuting claim for penalties and interest, Quave v. Progress
Marine, 912 F.2d 798, onreh'g, 918 F.2d 33 (5th Cir. 1990), cert. denied, 500 U.S.
916 (1991); Canty v. S.E.L. Maduro, 26 BRBS 147 (1992); Fairley v. Ingalls
Shipbuilding, Inc., 25 BRBS 61 (1991) (even where 10% may be subsumed by virtue of
employer's overpayment of the lump sum section 8(c)(13) award); Kaczmarek v. I.T.O.
Corp. of Baltimore, 23 BRBS 376 (1990);
h) establishing entitlement to benefits even though due to the employer's large credit
for overpayment, the claimant may not realize the award for many years, Geisler v.
Continental Grain Co., 20 BRBS 35 (1987); Turney v. Bethlehem Steel Corp., 17 BRBS
232 (1985);
i) establishing entitlement to benefits even though the claimant does not realize
benefits because of operation of Section 3(e). Kinnes v. General Dynamics Corp., 25
BRBS 311 (1992);
j) establishing right to benefits even though the original claimant is deceased and the
substituted claimant was not a statutory survivor and thus was not entitled to benefits,
Hamilton v. Ingalls Shipbuilding, Inc., 26 BRBS 114 (1992);
k) never actually receiving any benefits from the employer due to the § 33(f)
credit, Cretan v. Bethlehem Steel Corp., 24 BRBS 35 (1990);
l) producing additional benefits at a modification proceeding, Arrar v. St. Louis
Shipbuilding Co., 837 F.2d 334 (8th Cir. 1988); McDougall v. E.P. Paup Co., 21 BRBS
204 (1988); Coats v. Newport News
Shipbuilding & Dry Dock Co., 21 BRBS 77
(1988); Brown v. Bethlehem Steel Corp., 19 BRBS 200 (1987);
m) establishing that the claimant is entitled to have container royalty payments included
in the average weekly wage calculation, even though no additional benefits, Richmond
v. Smith & Sons, BRB 87-2542 (August 8, 1991) (unpublished);
n) where the claimant did not receive additional compensation because employer
voluntarily paid benefits but employer refused to enter stipulations at the hearing, actively
litigated all issues and argued that it had economic interest in the outcome, the Board found
successful prosecution, Finch v. Newport
News Shipbuilding & Dry Dock Co., 22 BRBS
196 (1989);
o) succeeding in receiving large lump sum rather than small continuing award
sufficient to establish that the claimant has obtained greater compensation
under §28(a), Fairley v.
Ingalls Shipbuilding, 22 BRBS 184 (1989);
p) successfully establishing employer liability by virtue of which the claimant obtains
an inchoate right to additional compensation equivalent to the amount of the Section
903(e) credit awarded to the employer, E.P. Paup Co. v. Director, OWCP, 999 F.2d
1341 (9th Cir. 1993);
q) successfully prosecuting a claim, receiving medical and monetary benefits for a
period of five years, regardless of whether the law changes while the case is waiting on
appeal and the claimant is no longer eligible for benefits under 33(g), Clark
v. National Steel & Shipbuilding, Co., 29 BRBS 816 (ALJ) (1995);
r) successfully establishing a right to medical benefits, even if the claimant was unable
to establish a compensable injury existed, Biggs v. Ingalls Shipbuilding, Inc., 27 BRBS
237 (1993); Ingalls Shipbuilding, Inc. v. Director, OWCP [Baker], 991 F.2d 163 (5th
Cir. 1993);
s) successfully establishing the right's of an estate to decedent's benefits (medical
expenses and compensation payments), Krohn v. Ingalls Shipbuilding, Inc., 29 BRBS 72
(1994);
t) successfully enlarging the claimant's benefits, under Section 28(b), above what the
employer was voluntarily paying, Boland
Marine & Manufacturing v. Rihner, 41 F.3d 997
(5th Cir. 1995); and
u) successfully pursing the claimant's right to interest, physician of claimant's choosing,
and a Section 14(e) penalty even though the employer had voluntarily paid benefits prior
to trial. Hoda v. Ingalls Shipbuilding, Inc., 28 BRBS 197 (1994).
v) Recovery of some benefits for a child when the employer only originally paid widow's
benefits is a successful prosecution. Mary J. Hawkins (Widow of Gilbert W. Hawkins)
v. Harbert International, Inc. and Ins. Co. of N. A., 33 BRBS 198 (1999).
Additionally, the Board has found that a claimant's attorney successfully prosecuted the claim
before the district director where the claimant filed a claim for permanent total disability benefits which
employer controverted, and, after an informal conference was held, employer paid compensation benefits,
even though the claim for permanent total disability benefits was ultimately denied by a judge. Wells v.
International Great Lakes Shipping Co., 14 BRBS 868 (1982).
A claimant has not successfully prosecuted the claim and thus no attorney's fee is awarded when:
a) the Board affirms the denial of the claim, Darling v. Northwest Marine Iron Works,
15 BRBS 486 (1983); Fortier v. Bath Iron Works Corp., 15 BRBS 261 (1982);
b) the Board finds for the employer on appeal, Bluhm v. Cooper Stevedoring Co.,
Inc., 13 BRBS 427 (1981);
c) the Board finds the claim barred by Section 13, Keatts v. Horne Bros., Inc., 14
BRBS 605 (1982);
d) the Board reverses the award of disability benefits and vacates the award of
medical benefits, Redick v. Bethlehem Steel Corp., 16 BRBS 155 (1984);
e) the judge finds the claim is timely filed, but the claimant has suffered no loss in
wage-earning capacity, Jenkins v. Federal Marine Terminal, 15 BRBS 157 (1982);
f) the claimant's success involves only the form of compensation, i.e., defense of a
lump sum contribution, and does not establish liability, Portland Stevedoring Co. v.
Director, OWCP, 552 F.2d 293 (9th Cir. 1977);
h) the judge denies the claim for compensation, Karacostas v. Port Stevedoring Co.,
1 BRBS 128 (1974); Director, OWCP v. Hemingway Transp., Inc., 1 BRBS 73 (1974);
i) the claimant does not receive any additional benefits following remand
but felt "bound to follow through" with his case, and the attorney argues that
the employer's appellate issue regarding a credit could have been decided in
the first instance which would
have resulted in the claimant's attorney fee being awarded, Murphy v. Honeywell, Inc., 20
BRBS 68 (1986);
j) the claimant's cross-appeal is unsuccessful even if he was successful before the
judge, Brown v. Bethlehem Steel Corp., 20 BRBS 26 (1987), rev'donothergroundssubnom. Director, OWCP v. Bethlehem Steel Corp., 868 F.2d 759 (5th Cir. 1989);
k) the claimant requests that the case be withdrawn without prejudice prior to reaching
the ALJ's office and the lawyer wins the appeal of the motion denying withdraw. Tactical
benefit is not sufficient, there must be economic gain, Crandle v. Ingalls Shipbuilding, Inc.,
BRB No. 93-1540 (Dec. 4, 1996) (unpublished);
l) the awarding of Section 28(b) fees is not appropriate if there has not been an
informal conference with the Department of Labor. FMC Corporation v. Perez, 128
F.3d 908 (5th Cir. 1997); AccordTodd Shipyards Corp. v. Director, OWCP, 950 F.2d
607 (9th Cir. 1991); Staftex Staffing v. Director, OWCP, 217 F.3d 365 (5th Cir. July 18,
2000); re-issued at 237 F.3d 409 (5th Cir. July 25, 2000)(then subsequently re-issued
again on March 26, 2001 using the 237 F.3d 409 cite.); butsee, Mary J. Hawkins
(Widow of Gilbert W. Hawkins) v. Harbert International, Inc. and Insurance Company of
North America, 33 BRBS 198 (1999) (Although technically no informal conference had
been held, the review of the claim by two claims examiners satisfied the informal process
requirements of the LHWCA.); Flanagan Stevedores, Inc. v. Gallagher, 219 F.3d 426 (5th
Cir. 2000). The Board found Bolton v. Halter Marine, Inc., (BRB No. 01-0182) (Oct.
2, 2001) (Unreported), to be analogous to Flanagan. In Bolton the employer had not
offered any record evidence supporting its allegation regarding the substance of the
recommendation. [Employer alleged there was never any recommendation made by the
district director disposing of the disputed issues, and that even if there was, there was no
evidence to show that the employer did not comply with the recommendation.] Thus the
Board found that the instant case did not turn on the issue of whether there was a written
recommendation or not, but rather, whether the claimant obtained greater compensation
following a formal hearing than that paid or tendered by the employer.
[ED. NOTE: For more on the need for informal conferences in order to receive attorney fees, see
the Staftex discussion infra at Topic 28.2 Employer Liability]
Moreover, where the claimant successfully seeks modification before the administrative law judge
while an appeal of claimant's claim is pending before the Board, the time spent before the Board is
considered unnecessary and accordingly no fees for time before the Board are awarded. Clark v. Director,
OWCP, 19 BRBS 185 (1986).
28.1.3 When Employer's Liability Accrues
Under Section 28(a), the employer may not be liable for all the claimant's attorney's fees. The
employer is only liable for fees incurred after 30 days from the date the employer received notice of the
claim or from the date the employer declined to pay benefits, whichever occurs sooner. Kemp
v. Newport News Shipbuilding & Dry Dock Co., 805 F.2d 1152 (4th Cir. 1986); Director, OWCP v. Jones, 615
F.2d 1368 (D.C. Cir. 1980) (Table); Martin v. Kaiser Co., Inc., 24 BRBS 112 (1990); Luter
v. Newport News Shipbuilding & Dry Dock Co., 19 BRBS 103 (1986). If the record is unclear as to when the
employer received notice of the claim, the Board will remand the case for more evidence on the issue.
Lonergan v. Ira S. Bushey & Sons,
Inc., 11 BRBS 345 (1979).
The Board has held that notice must come in writing from the district
director in order to comply with Section 28(a). Notice from the claimant,
even in writing, will not "trigger" the
employer's liability for attorney's fees. Watkins v. Ingalls Shipbuilding, 26 BRBS 179 (1993).
Hearing loss claims are not to be treated any differently than other claims
with respect to the information necessary for the claimant to file a "valid" claim
or the applicability of the attorney's fee provisions of Section 28 of the
LHWCA.. In Craig v. Avondale Industries, Inc., ___ BRBS ___, (BRB
No. 00-05690 (Oct. 5, 2001) (enbanc) the Board held that the initial claim form, standing alone, triggered
the 30-day time period following notice of the claim from the district director. Previously in Craig, before
the en banc consolidated reconsideration, the Board had held that
where a claim form states only that the claimant alleged he suffered a "hearing loss" due to "exposure to injurious noise" with
no degree of impairment alleged on the form, and no hearing test attached to
the form, the claim was akin to an
anticipatory filing inasmuch as it did not identify a specific degree of hearing
impairment. Previously, the Board also had gone further to hold that under
such circumstances, the employer could not be held for an
attorney's fee under Section 28(a), nor was the employer liable under Section
to file a "valid" claim or the
applicability of the attorney's fee provisions of Section 28 of the LHWCA.
Employer may be liable, in an award by an ALJ, for pre-controversy costs incurred by the
claimant, even if notice does not trigger normal liability for attorney's fees. The prohibition, in Jones v.
Chesapeake and Potomac Telephone Company, 11 BRBS 7 (1979), aff'dpercuriam, 615 F.2d 1369
(D.C. Cir. 1980), amendedpercuriam (D.C. Cir. 1980), relates to costs incurred under 28(a) but not
to doctors bills incurred under 28(d). Magee v. Ingalls Shipbuilding, Inc., BRB No. 96-0746 (Jan 23,
1997) (unpublished); Luter v. Newport
News Shipbuilding & Dry Dock Co., 19 BRBS 103 (1986); Del
Vacchio v. Sun Shipbuilding & Dry Dock Co., 16 BRBS 190 (1984).
28(b) as the employer had paid all benefits within the 30 days after a claim
containing all pertinent information was filed. In its en banc holding,
the Board now explained that the claim forms specifically evince an intent
to seek benefits for a work-related hearing loss and that there was no evidence
of any intent by Congress to treat hearing loss
claims differently with respect to the information necessary for the claimant
The claim need not go to a formal hearing in order to entitle the claimant's attorney to a fee award,
Thornton v. Beltway Carpet Service, Inc., 16 BRBS 29 (1983), and the employer is still liable for the
attorney's fee even though the claims examiner issued a memorandum rather than a compensation order
which contained the parties' agreement and the examiner's recommendations. Baker v. Todd Shipyards
Corp., 12 BRBS 309 (1980).
[ED. NOTE: In the non-longshore case of Buckhannon
Board & Care Home, Inc. v. West Virginia
Department of Health and Human Resources, 121 S.Ct. 1835, 532 U.S. 598 (2001), an attorney fee
request was at issue in this matter involving the Fair Housing Amendments Act of 1988 (FHAA) and
the Americans with Disability Act of 1990 (ADA), based on the "catalyst
theory." The catalyst
theory posits that a plaintiff is a prevailing party if it achieves the desired result because the lawsuit
brought about a voluntary change in the defendant's conduct. The Supreme Court held that the
catalyst theory is not a permissible basis for the award of attorneys fees under the FHAA and ADA
since it allows an award where there is no judicially sanctioned change in the parties legal
relationship. The Court found that while a defendant's voluntary change in conduct may
accomplish what a plaintiff sought to achieve by suit, it lacks the necessary judicial imprimatur on
the change.]
Furthermore, a judge can properly find two employers jointly and severally responsible for the
attorney's fee where each denied its status as an employer and failed to voluntarily render medical payments
to claimant. Hansen v. Oilfield Safety, Inc., 8 BRBS 835, reaff'donrecons., 9 BRBS 490 (1978), aff'dsubnom. Oilfield
Safety & Mach. Specialties, Inc. v. Harmen Unlimited, Inc., 625 F.2d 1248 (5th Cir.
1980).
[ED. NOTE: In Liggett
v. Crescent City Marine Ways & Drydock Co., Inc., 31 BRBS 135 (1997),
the Board formally overturned jurisprudence which declined to award attorney's fees for services
rendered prior to a claim being controverted. Following the holding in the Black Lung Act case of
Jackson v. Jewell Ridge Coal Corp., 21 BLR 1-27 (1997)(en banc)(JJ. Smith and Dolder, dissenting);
the Board ruled that the employer was liable for the pre-controversion fees. The rational for the new
holding is that Hensley v. Eckerhart,
461 U.S. 424 (1983), mandates the use of a two step procedure for the determination
of what are reasonable fees. The Board is using the open definition of "reasonable attorney's fees" to
allow the district directors to award fees for work preformed prior
to the running of the statutorily mandated bar in Section 28(a). This bar prevented the assessing
of liability for attorney's fees until: (a) 30 days after the employer receives notice of the claim; or
(b) at the point of controversion.
The new Liggett holding is limited in its application as the Fourth and Fifth Circuit's
have rulings on point holding that pre-controversion fees are not awardable in these situations.
SeeKemp
v. Newport New Shipbuilding & Dry Dock Co., 805 F.2d 1152, 19 BRBS 50 (CRT)(4th
Cir. 1986); Watkins v. Ingalls Shipbuilding, Inc., 26 BRBS 179, 185 (1993), aff'dmem., 12 F.3d 209
(5th Cir. 1993). The Liggett holding may be limited in the Ninth Circuit depending on whether
future jurisprudence follows the holding in Anderson or by Todd Shipyards Corp. v. Director,
OWCP [Watts], 950 F.2d 607, 25 BRBS 65 (CRT) (9th Cir. 1991).
In any event, Liggett only applies to discretionary awards of the district director, which
are directly appealable to the Board. The holding in Liggett should not effect the awarding of
attorney's fees under an Order issued though the Office of Administrative Law Judges.]
28.1.4 Decline to Pay
An employer is considered to have declined to pay compensation if it disputes or simply refuses
to pay the compensation requested in the claim. Tait v. Ingalls Shipbuilding, Inc., 24 BRBS 59 (1990);
Baker, 12 BRBS 309. If the employer does not decline to pay the compensation requested, but does
decline to pay the claimant's medical expenses, the claimant's attorney is still entitled to a fee award.
Oilfield Safety & Mach. Specialties,
Inc. v. Harmen Unlimited, Inc., 625 F.2d 1248 (5th Cir. 1980). If
employer pays compensation under the state law but refuses to pay on the federal claim, Section 28(a) is
applicable. Butler v. Lemont Shipbuilding & Repair
Co., 3 BRBS 429 (1976); Fairman v. J.A. McCarthy,
Inc., 3 BRBS 239 (1976), aff'dmem., 547 F.2d 1161 (3d Cir. 1977).
Section 28(a) is not applicable, however, either if the employer pays at least partial compensation
without an award, Henley v. Lear Siegler, Inc., 14 BRBS 970 (1982); or if a district director's computation
order does not establish the existence or extent of disability, but only deals with the form of compensation.
Portland Stevedoring Co. v. Director, OWCP, 552 F.2d 293 (9th Cir. 1977). SeealsoFlowers v.
Marine Concrete Structures, Inc., 19 BRBS 162 (1986) (Section 28(a) did not apply when the employer
voluntarily paid temporary total disability benefits during the entire time prior to hearing and conceded
entitlement to permanent partial).
28.2 EMPLOYER'S LIABILITY
Section 28(b) of the LHWCA provides:
If the employer or carrier pays or tenders payment of
compensation without an award pursuant to section 14(a) and (b) of
this Act, and thereafter a controversy develops over the amount of
additional compensation, if any, to which the employee may be
entitled, the deputy commissioner or Board shall set the matter for
an informal conference and following such conference the deputy
commissioner or Board shall recommend in writing a disposition of
the controversy. If the employer or carrier refuses to accept such
written recommendation, within fourteen days after its receipt by
them, they shall pay or tender to the employee in writing the
additional compensation, if any, to which they believe the employee
is entitled. If the employee refuses to accept such payment or
tender of compensation, and thereafter utilizes the services of an
attorney at law, and if the compensation thereafter awarded is
greater than the amount paid or tendered by the employer or
carrier, a reasonable attorney's fee based solely upon the
difference between the amount awarded and the amount tendered
or paid shall be awarded in addition to the amount of compensation.
The foregoing sentence shall not apply if the controversy relates to
degree or length of disability, and if the employer or carrier offers
to submit the case for evaluation by physicians employed or
selected by the Secretary, as authorized in Section 7(e) and offers
to tender an amount of compensation based upon the degree or
length of disability found by the independent medical report at such
time as an evaluation of disability can be made. If the claimant is
successful in review proceedings before the Board or court in any
such case an award may be made in favor of the claimant and
against the employer or carrier for a reasonable attorney's fee for
claimant's counsel in accord with the above provisions. In all other
cases any claim for legal services shall not be assessed against the
employer or carrier.
33 U.S.C. § 928(b).
Section 28(b) applies when a controversy develops over additional compensation where the
employer has tendered compensation or is voluntarily paying compensation pursuant to Sections 914(a)
and (b). See 20 C.F.R. § 702.134(b).
Section 28(b) provides when the employer voluntarily tenders payment without
an award and thereafter a conflict arises over additional compensation, the
employer will
be liable for attorney's fees if the claimant is successful in obtaining greater
compensation than that originally agreed upon by the employer. Universal Maritime Serv. Corp. v. Parker, 587 F.2d 608 (3d Cir. 1978);
Bjazevich v. Marine Terminals Corp., 25 BRBS 240 (1991); Rihner
v. Boland Marine & Mfg. Co., 24
BRBS 84 (1990); Tait v. Ingalls Shipbuilding, Inc., 24 BRBS 59 (1990); Finch
v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 196 (1989).
The statute provides that when the controversy arises, the district director may conduct an informal
conference and make a written recommendation regarding the disposition of the controversy. If the
employer does not accept the district director's recommendation, the employer must pay or tender within
14 days the amount of additional compensation it believes is due to the employee. If the employee refuses
the payment or tender and utilizes the services of an attorney to gain compensation greater than the amount
paid or tendered, the employer is responsible for a reasonable attorney's fee based solely on the difference
between the amount awarded and the amount tendered or paid. Gulley v. Ingalls Shipbuilding, Inc., 22
BRBS 262 (1989) (en banc); Ping v. Brady-Hamilton Stevedore Co., 21 BRBS 223 (1988); Caine v.
Washington Metro Area Transit Auth., 19 BRBS 180 (1986).
Section 28(b) does not authorize the payment of attorney's fees for services performed by a
claimant's attorney unless the record shows that the employer refused to accept the written
recommendation of the claims examiner following an informal conference. Todd Shipyards v. Director,
OWCP, 950 F.2d 607 (9th Cir. 1991) (where only unresolved issue after informal conference was
attorney's fees).
In its original Staftex decision, Staftex Staffing v. Director, OWCP, 217 F.3d 365 (5th Cir. July
18, 2000); re-issued at 237 F.3d 409 (5th Cir. July 25, 2000)(then subsequently re-issued again on March
26, 2001 using the 237 F.3d 409 cite.), the Fifth Circuit held that the plain wording of Section 28(b)
permits claimants to obtain attorney's fees only where there has been an informal conference and a written
recommendation on the disputed issue(s), and the employer refuses to accept the recommendation.
Originally the appellant court had denied the fee request because an informal conference had not been held
on an average weekly wage issue, though on other issues one had.
Subsequently the first version was withdrawn and on reconsideration, a panel of the Fifth Circuit
held that the ALJ in Staftex correctly
granted attorney fees. The circuit court then held that when there is an informal
conference and recommendation, and the rate of compensation is to "continue" as
an essential part of the recommendation, and the recommendation specifically
referenced both the average weekly
wage and comp rate, then, if the employer raises the rate of the average weekly
wage at the time of the formal hearing, a successful claimant's attorney will
be entitled to a fee award.
Ultimately, a third version of Staftex was issued. In this latest version, the Fifth Circuit noted that
the employer had voluntarily paid compensation based on a certain average weekly wage and that the
claimant, satisfied with his compensation rate, had no reason to raise it at the informal conference. The
claims examiner, following the informal conference, recommended that the parties agree to an order
awarding permanent and total disability benefits with the rate of compensation continuing. The employer
did not timely accept the recommendation of the claims examiner, agreed with the claimant's statement of
the issues to be resolved at the formal hearing and raised no new issues until shortly before the formal
hearing was scheduled. At that time, the employer agreed to pay total permanent disability but contended
that the average weekly wage should be much lower than it had been paying. The Fifth Circuit found
that the rate of compensation which was to "continue" is an essential part
of the recommendation and the recommendation specifically referenced both the
higher average weekly wage and its accompanying
compensation rate. Therefore, the Fifth Circuit found that the claimant's counsel did successfully
prosecute the case and is entitled to an attorney fee.
In Flanagan Stevedores, Inc. v. Gallagher, 219 F.3d 426 (5th Cir. 2000), the Fifth Circuit upheld
an attorney fee where there had not been an informal conference on all issues. After an informal conference
and a recommendation, the claimant in Flanagan, used the services of an attorney to successfully recover
an award of additional compensation. On appeal, the employer conceded that there was an informal
conference, but contended that the conference was not held with respect to the issues that were ultimately
tried before the ALJ. In upholding the attorney fee award, the Fifth Circuit stated
that, "The employer's
unsupported assertion does not overcome the force of the joint stipulation
with its implicit yet obvious implication that the formal conference involved
one or more of the disputed issues before the ALJ."
When the claimant in Staftex had originally requested rehearing to reconcile Staftex with Flanagan,
the Fifth Circuit responded that Flanagan was "decided
under a unique set of facts that we do not find helpful in this case."
[ED. NOTE: There are several perplexing aspects to the Staftex litigation. First, the terminology
used by the court is often confusing. For instance, the decision at one point dwells on archaic
LHWCA language which speaks in terms of the Board holding informal conferences. Likewise, the
decisions that it cites for support, FMC Corp. v. Perez, 128 F.3d 908 (5th Cir. 1997) and Todd
Shipyards Corp. v. Director, OWCP, 950 F.2d 607 (9th Cir. 1991), are equally poorly worded and
at one point it becomes apparent thatthere is some confusion as to the Director's function, with
there being an implication that the Director is head of the Board.
The withdrawal of the original opinion and replacement with a fact specific opinion, followed
by the second re-issuance, may leave the longshore bar wondering how the court will hold when
faced with the situation where there has not been an informal conference at all. One must realize
that the statute states that the district director may hold an informal conference. In the normal
course of events, there are many cases that are referred up without an informal conference. This
may be because of scheduling problems, or simply because all parties agree that nothing is going
to be solved without a full fledged hearing. Does Staftex now mean that there must be an informal
conference, with very, very limited exceptions? And if a case has been referred up and a new issue
arises, must the claimant's attorney now ask that it be remanded for there to be an informal
conference [even though all know there will not be a resolution of this matter] so as to protect his
attorney fee rights. And what if the claimant is not in pay status during this lengthy process ?]
Citing to Staftex and Flanagan, in Pool Co. v. Cooper, ___ F.3d ___ (Nos. 99-60615, 00-60093)
(5th Cir. Nov. 20, 2001), the Fifth Circuit again
found that an attorney fee could not be awarded where no informal conference
with OWCP had taken place: "Under the law of our Circuit, that fact poses an
absolute bar to an award of attorney's fees under § 28(b)."
The Board found Bolton v. Halter Marine, Inc., ___ BRBS ___, (BRB No. 01-0182) (Oct. 2,
2001) to be analogous to Flanagan. In Bolton the employer had not offered any record evidence
supporting its allegation regarding the substance of the recommendation. [Employer alleged there was never
any recommendation made by the district director disposing of the disputed issues, and that even if there
was, there was no evidence to show that the employer did not comply with the recommendation.] Thus the
Board found that the instant case did not turn on the issue of whether there was a written recommendation
or not, but rather, whether the claimant obtained greater compensation following a formal hearing than that
paid or tendered by the employer.
Section 28(b) also provides that attorney's fees may be avoided if the controversy which develops
relates to degree or length of claimant's disability and the employer offers to submit the case to a physician
for an independent medical examination and also offers, before the examination, to pay whatever
compensation is indicated by the independent examination.
28.2.1 Controversy
Under Section 28(b), the employer is not responsible for any attorney's fee incurred prior to the
date a controversy develops over the amount of additional compensation to which claimant seeks
entitlement. Ping v. Brady-Hamilton Stevedore Co., 21 BRBS 223 (1988); Trachsel v. Brady-Hamilton
Stevedore Co., 15 BRBS 469 (1983). There is no requirement that the dispute over the additional
compensation actually be litigated at a formal hearing in order for an attorney's fee to be assessed against
the employer. Brown v. Rothschild-Washington Stevedore Co., 8 BRBS 539 (1978); Thorton v. Beltway
Carpet Service, Inc, 16 BRBS 29 (1983).
The employer is responsible for attorney's fees where it rejects the recommendation of the district
director and the claimant succeeds in obtaining a greater award. Director, OWCP v. Rasmussen, 567 F.2d
1385 (9th Cir. 1978), aff'd, 440 U.S. 29 (1979); Henley v. Lear Siegler, Inc., 14 BRBS 970 (1982);
Swain v. Bath Iron Works Corp., 14 BRBS 657 (1982).
The employer need only controvert some aspect of the claimant's claim to be liable for attorney's
fees. Mobley v. Bethlehem Steel Corp., 20 BRBS 239 (1988). Filing an LS-207 Form can create a
controversy necessitating claimant's need for an attorney. However, an employer who pays all that is
owed, reserving the right to contest, does not create a controversy by filing an LS-207 Form such that
attorney's fees are recoverable. Kemp
v. Newport News Shipbuilding & Dry Dock Co., 805 F.2d 1152
(4th Cir. 1986); Henley v Lear Siegler, Inc., 14 BRBS 970 (1982).
The Board has held that no controversy exists under Section 28(b) and thus
employer was not liable for the fee where employer voluntarily made temporary
total disability payments for five years and,
after terminating them, reinstated benefits at permanent total disability levels
with full retroactive payments. The fact payments were made "under protest" was
irrelevant. Henley, 14 BRBS 970.
Section 28(b) does not apply where the employer voluntarily pays temporary total at all times prior
to hearing and concedes entitlement to permanent partial. FMC Corporation v. Perez, 128 F.3d 908 (5th
Cir. 1997). In Flowers v. Marine Concrete Structures, Inc., 19 BRBS 162 (1986), where the claimant
did not submit to vocational testing, the administrative law judge determined that litigation at the OALJ level
resulted from the claimant's intransigence rather than a controversion by the employer. In light of the
purpose of the LHWCA to facilitate informal resolution of claims where participation is voluntary, complete
and forthright, the intransigence of the claimant was assessed against the claimant's counsel so as not to
diminish the claimant's award. The Board reasoned that the counsel's failure to secure the claimant's
participation protracted the litigation.
The Fifth Circuit has held that if the claimant refuses to accept compensation from the employer
and utilizes the services of an attorney to obtain a greater award, the employer is still liable under Section
28(b) if the claimant accepts partial compensation from the employer but also requests additional
compensation. Savannah Mach. & Shipyard
Co. v. Director, OWCP, 642 F.2d 887 (5th Cir. 1981).
Furthermore, where the additional compensation is to be paid out of the Special Fund, the employer is still
liable under Section 28(b) if the employer has a real interest in the outcome of, and is an active litigant in,
the proceedings. SeeWaganer
v. Alabama Dry Dock & Shipbuilding Co., 17 BRBS 43 (1985); Kleiner
v. Todd Shipyards Corp., 16 BRBS 297 (1984); Floyd
v. Savannah Mach. & Shipyard Co., 11 BRBS
465 (1979). Finally, even if the parties agree to the additional compensation before the hearing in the
presence of the administrative law judge, the employer is still liable for any attorney's fee incurred before
the agreement. Kleiner, 16 BRBS 297; Byrum
v. Newport News Shipbuilding & Dry Dock Co., 14
BRBS 833 (1982); Brown, 8 BRBS 539.
28.2.2 Tender of Compensation
A "tender" of compensation by the employer does not mean an actual "proffer of goods," as such
is contrary to the entire system of settlement offers, which by its nature, requires that offers and counter-offers take place until an agreement is reached. Actual payment is not contemplated until approval of the
settlement offer by the ALJ or district director. "Tender," in light of the
purpose of Section 28 to encourage voluntary payments, means a readiness, willingness,
and ability on the part of the employer, expressed in
writing, to make such a payment to the claimant. Ahmed v. Washington Metro. Area Transit Auth., 27
BRBS 24 (1993) (no offer made where employer's counsel had no authority to settle for indicated amount);
Kaczmarek v. I.T.O. Corp. of Baltimore, 23 BRBS 376 (1990) (no tender where employer's offer not
made in writing); Armor v. Maryland
Shipbuilding & Dry Dock Co., 19 BRBS 119 (1986) (en banc).
In Ingalls v. Director, OWCP, 865 F.2d 1263 (5th Cir. 1989) (Table), Ingalls tendered payment
of any medical bills incurred by the claimant as a result of his occupational disease. The claimant refused
the tender. When his claim was finally resolved by the Board, he was awarded only medical benefits.
Since this award was no greater than Ingalls' original offer of payment, the award of attorney's fees was
found by the Fifth Circuit to be inappropriate.
[ED. NOTE: According to Fifth Circuit Local
Rule 47.5.3 "[u]npublished opinions issued before
January 1, 1996 are precedent."]
28.2.3 District Director's Recommendation
Although Section 28(b) specifically states that the district director shall make a written
recommendation requiring the disposition of the controversy, the Board and the courts have held that failure
of the district director to make a written recommendation will not preclude the assessment of an attorney's
fee against the employer. National
Steel & Shipbuilding Co. v. U.S. Dep't of Labor, 606 F.2d 875 (9th
Cir. 1979); Director, OWCP v. Jacksonville Shipyards, 1 BRBS 26 (1974). Furthermore, even if the
employer follows the district director's recommendation but the employee does not and requests a hearing,
the employer is liable for fees if any additional compensation is eventually awarded. Collington
v. Ira S. Bushey & Sons, 13 BRBS 768 (1981); Barber v. Tri-State Terminals, Inc., 3 BRBS 244 (1976), aff'dsubnom. Tri-State Terminals, Inc. v. Jesse, 596 F.2d 752 (7th Cir. 1979); Butler
v. Lemont Shipbuilding & Repair Co., 3 BRBS 429 (1976).
Moreover, if the district director fails to make a recommendation regarding the issue of disability
but the claimant is later awarded additional compensation, the employer is still responsible for the attorney's
fee. SeeAlston v. United Brands Co., 5 BRBS 600 (1977). Although the claimant receives an
unfavorable recommendation from the district director, the claimant's attorney is still entitled to attorney's
fees for services performed at that level if the claimant is ultimately successful in obtaining benefits. Hogan
v. Int'l Terminal Operating Co., Inc., 13 BRBS 734 (1981).
Although under 20 C.F.R. § 702.317(c) the judge may not receive into evidence
any recommendations by the district director, Wilson v. Old Dominion Stevedoring Corp., 3 BRBS 224
(1976), these recommendations may be relevant under Section 28(b). The Board has held that a claimant's
counsel's reference to the district director's recommendation in a letter accompanying his fee application
was not improper given the requirement of Section 28(b) that an attorney's fee award be based upon the
difference between the amount of compensation tendered or paid after the employer has refused to accept
the district director's recommendation and the amount ultimately awarded. McCray v. Ceco Steel Co.,
5 BRBS 537 (1977).
28.2.4 Additional Compensation
Additional compensation within the meaning of Section 28(b) has been obtained where the
employer pays the claimant's medical bills either by order of the judge after a hearing, Morgan v. General
Dynamics Corp., 16 BRBS 336 (1984); Hernandez
v. National Steel & Shipbuilding Co., 13 BRBS 147
(1980); Simeone v. Universal Terminal & Stevedoring
Corp., 5 BRBS 249 (1976), or by agreement
before the hearing, Revoir v. General Dynamics Corp., 12 BRBS 524 (1980), and where a Section 14(e)
penalty is assessed against employer, Smelcer
v. National Steel & Shipbuilding Co., 16 BRBS 117
(1984); MacDonald v. Sun Shipbuilding & Dry
Dock Co., 10 BRBS 734 (1978).
Where the employer agrees to pay additional compensation for the claimant's hearing loss prior to
the hearing, the employer is liable under Section 28(b). Brown v. General Dynamics Corp./Elec. Boat
Div., 12 BRBS 528 (1980). A claimant has also obtained "additional compensation" when
the claimant and the employer have stipulated to the claimant's average weekly
wage before the hearing and the claimant
receives four additional weeks of compensation for temporary total disability, even though the employer
never contested the award at the hearing. Vanison v. Greyhound Lines, Inc.,
17 BRBS 179 (1985). The claimant has also obtained "additional compensation" where
the Board increases the administrative law
judge's determination of the claimant's average weekly wage. Bacon v. General Dynamics Corp., 14
BRBS 408 (1981).
The Board has found an employer liable under Section 28(b) where the claimant successfully
prosecuted a permanent partial disability claim under Section 8(c)(21), even though due to the employer's
overpayment of temporary total benefits claimant will not realize the award for many years. The Board
noted that the employer actively disputed the claim. Turney v. Bethlehem Steel Corp., 17 BRBS 232
(1985). Cf. Scott
v. C & C Lumber Co., Inc., 9 BRBS 815 (1978) (no additional compensation obtained
where the employer overpaid temporary total benefits and the claimant obtained a scheduled permanent
partial award).
Additional compensation does not include:
(1) when the Board modifies the judge's decision to find a claimant's average weekly
wage under Section 10(c) rather than Section 10(b), but does not change the amount of
benefits the claimant received, Orkney v. General Dynamics Corp., 8 BRBS 543 (1978);
(2) when the judge finds the dates of the claimant's permanent disability started later
than the claimant argued (and later than when the employer began paying permanent
disability benefits), Wilhelm v. Seattle Stevedore Co., 15 BRBS 432 (1983);
(3) when the employer reinstates voluntary benefits in the full amount due prior to the
claimant's retention of counsel, Henley v. Lear Siegler, Inc., 14 BRBS 970 (1982); and
(4) where the employer voluntarily pays temporary total and concedes entitlement to
permanent partial benefits which were ultimately awarded. Flowers, 19 BRBS 162.
In National Steel & Shipbuilding
Co. v. U.S. Department of Labor, 606 F.2d 875, 11 BRBS 68
(9th Cir. 1979), the court found that although the effect of its decision was to diminish the amount the
claimant was entitled to recover in the form of a 10 percent assessment on his compensation, since the
claimant was for the most part successful, the claimant was entitled to an attorney's fee award under
Section 28(b).
28.2.5 Amount of Award
(Seealso Topic 28.5, 28.6, infra.)
Section 28(b) provides that an attorney's fee awarded under this subsection
is to be based solely on the difference between the 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." Strachan Shipping Co. v. Nash, 782 F.2d 513 (5th Cir. 1986); Barbera
v. Director, OWCP, 245 F.3d 282 (3rd Cir. 2001), 35 BRBS 27 (CRT) (2001) (Where attorney secured
future medicals and de minimis award, circuit court affirmed ALJ's fee award without limited success
reduction); Clophus v. Amoco Prod. Co. 21 BRBS 261 (1988).
The Board has applied the holding in Kelley v. Handcor, Inc., 1 BRBS 319 (1975), to Section
28(b), finding that it is not proper to limit the award of the attorney's fee to an amount equal to or less than
the compensation awarded, where all the circumstances of the case indicate that a larger fee is reasonable.
Barber v. Tri-State Terminals, Inc., 3 BRBS 244 (1976), aff'dsubnom. Tri-State Terminals, Inc. v. Jesse,
596 F.2d 752 (7th Cir. 1979). In Brown v. Lykes Bros. Steamship Co., Inc.,
6 BRBS 244 (1977), the Board further stated that the language in Section 28(b)
("based solely upon") means only that the fee must
have some reasonable relationship to the compensation awarded over that tendered
or paid by the employer.
Furthermore, limiting the fee to an amount equal to or less than the compensation award would
drive competent counsel from the field and, therefore, would run contrary to the spirit of the LHWCA.
Piecoro v. Pittston Stevedoring Corp., 8 BRBS 360 (1978). The Board therefore refused to reverse an
attorney's fee award not based solely on the difference between the amount awarded and the amount paid
when the employer failed to show that the fee award was unreasonable. Collington
v. Ira S. Bushey & Sons, 13 BRBS 768 (1981). SeealsoNational
Steel & Shipbuilding Co. v. U.S. Dep't of Labor,, 606
F.2d 875 (9th Cir. 1979).
28.2.6 Avoidance of Attorney's Fees Under Section 28(b)
An employer can avoid liability for attorney's fees under Section 28(b) if:
(1) the controversy which develops relates to the degree or length of the claimant's
disability, and
(2) the employer offers to submit the case to a physician for an independent medical
examination and pay whatever compensation is indicated by the independent
examiner. Hadel v. I.T.O. Corp. of Baltimore, 6 BRBS 519 (1977).
The employer does not avoid attorney's fees under Section 28(b) by the use of an independent
medical examiner where:
(1) the employer does not agree prior to the examination to accept the findings of the
impartial examiner, Universal Terminal & Stevedoring
Corp. v. Parker, 587 F.2d
608 (3d Cir. 1978); Thompson v. McDonnell Douglas Corp., 17 BRBS 6
(1984);
(2) there is no evidence that the employer accepted the findings in advance, Caraballo
v. Northeast Marine Terminal Co., 11 BRBS 514 (1979); Barranca v. United
Marine Serv. Corp., 6 BRBS 781 (1977); Holmes v. Universal Maritime Serv.
Corp., 5 BRBS 488 (1977); or
(3) the employer agrees to pay compensation after the examination. Baird
v. W.J. Jones & Son, Inc., 6 BRBS 727 (1977); Hadel, 6 BRBS 519.
In Jones v. I.T.O. Corp. of Baltimore,
9 BRBS 583 (1979), the Board held that whether the employer was responsible
for an attorney fee under Section 28(b) depended on whether the physician used
to rate the claimant's disability was an "independent medical examiner," which
had to be determined on remand.
28.3 CLAIMANT'S LIABILITY
Section 28(c) of the LHWCA provides:
In all cases fees for attorneys representing the claimant shall be
approved in the manner herein provided. If any proceedings are
had before the Board or any court for review of any action, award,
order, or decision, the Board or court may approve an attorney's
fee for the work done before it by the attorney for the claimant. An
approved attorney's fee, in cases in which the obligation to pay the
fee is upon the claimant, may be made a lien upon the
compensation due under an award; and the deputy commissioner,
Board, or court shall fix in the award approving the fee, such lien
and manner of payment.
33 U.S.C. § 928(c).
The appropriate regulations governing this section are contained at 20 C.F.R. § 702.132(a) and
20 C.F.R. § 802.203(e).
An attorney's fee can only be levied against an employer if the conditions of Section 28(a) or 28(b)
are met. If the employer is found not to be liable for a fee under Section 28(a) or 28(b), the fee may be
assessed against the claimant and may be made a lien on the claimant's compensation pursuant to Section
28(c). Kemp v. Newport News Shipbuilding & Dry
Dock Co., 805 F.2d 1152 (4th Cir. 1986); Portland
Stevedoring Co. v. Director, OWCP, 552 F.2d 293 (9th Cir. 1977).
The claimant may also be liable for fees incurred:
(1) prior to the employer's notification and refusal to pay, seeDirector, OWCP v.
Jones, 615 F.2d 1368 (D.C. Cir. 1980); 33 U.S.C. §928(a);
and
(2) prior to a controversy arising, seeJones, 615 F.2d 1368; Trachsel,
15 BRBS 469; 33 U.S.C. § 928(b).
[ED. NOTE: In Liggett
v. Crescent City Marine Ways & Drydock Co., Inc., 31 BRBS 135 (1997),
the Board formally overturned the jurisprudence denying attorney's fees for services rendered prior
to the claim being controverted. Following the holding in the Black Lung Case of Jackson v. Jewell
Ridge Coal Corp., 21 BLR 1-27 (1997)(en banc)(JJ. Smith and Dolder, disenting); the Board ruled
that the Employer was liable for the pre-controversion fees. The rational for the Liggett holding
is that Hensley v. Eckerhart, 461 U.S. 424
(1983) mandates the use of a two step procedure for the determination of what
are reasonable fees. The Board is using an open definition of "reasonable
attorney's fees" to allow the district directors to award fees for work preformed prior to the
running of the statutorily mandated bar in Section 28(a). This bar prevents the assessing of liability
for attorney's fees until: (a) 30 days after the employer receives notice of the claim; or (b) at the
point of controversion.
The new holding is limited in its application as the Fourth and Fifth Circuit's have
rulings on point holding that pre-controversion fees are not awardable in these situations. SeeKemp v. Newport New Shipbuilding & Dry
Dock Co., 805 F.2d 1152, 19 BRBS 50 (CRT)(4th Cir.
1986); Watkins v. Ingalls Shipbuilding, Inc., 26 BRBS 179, 185 (1993), aff'd mem., 12 F.3d 209 (5th
Cir. 1993). The holding may be limited in the Ninth Circuit depending on whether the future
jurisprudence follows the holding in Anderson or by Todd Shipyards Corp. v. Director, OWCP
[Watts], 950 F.2d 607, 25 BRBS 65 (CRT)(9th Cir. 1991).
In any even, Liggett only applies to discretionary awards of the district director, which
are directly appealable to the Board. The holding in Liggett should not change the normal criteria
for the awarding of attorney's fees under an Order issued though the Office of Administrative Law
Judges.]
In Watkins v. Ingalls Shipbuilding, Inc., 26 BRBS 179 (1993), the claimant was held liable for fees
prior to the district director's notice to the employer even though the claimant had provided the employer
with written notice eight months previously and the employer had controverted.
The Board has affirmed an ALJ's rejection of an agreement that a claimant would pay his own fees
in consideration of the employer's stipulation as to its liability. Stokes v. Jacksonville Shipyards, Inc., 18
BRBS 237 (1986).
The Board affirmed the judge's denial of a fee to counsel in Flowers v. Marine Concrete Structures,
Inc., 19 BRBS 162 (1986), where the employer voluntarily paid temporary total benefits and conceded
entitlement to permanent partial benefits which the claimant was awarded. The Board found that the
employer was not liable and declined to award a fee assessed against the claimant as the employer was
willing to pay the benefits awarded and counsel's failure to obtain his client's cooperation prolonged the
litigation unnecessarily.
Section 28(c) also provides that the Board or reviewing court may approve an attorney's fee for
the work done before it by the claimant's attorney. SeeAyers Steamship Co. v. Bryant, 544 F.2d 812
(5th Cir. 1977). This provision is consistent with the language
in Section 28(a) which provides that fees may be awarded against the employer
or carrier "by the deputy commissioner, Board, or court, as the case
may be." 33 U.S.C. §928(a). Seealso Topic 28.7, supra.
28.3.1 Liability of Special Fund
(Seealso Topic 26, supra.)
Although the Board has held the Special Fund liable for attorney's fees, decisions from the Fifth,
Ninth, and EleventhCircuits have confirmed that the Board lacks the specific statutory authority to
assess attorney's fees against the Special Fund pursuant to Section 28. Director,
OWCP v. Alabama Dry
Dock & Shipbuilding Co., 672 F.2d 847 (11th Cir. 1982); Holliday v. Todd Shipyards Corp., 654 F.2d
415 (5th Cir. 1981), overruledonother groundsbyPhillips v. Marine Concrete Structures, Inc., 895 F.2d
1033 (5th Cir. 1990) (en banc); Director, OWCP v. Robertson, 625 F.2d 873 (9th Cir. 1980).
Although these circuit court cases seem to close the question of whether attorney's fees may be
assessed against the Special Fund pursuant to Section 28, the Board continues to struggle with the question
of whether Section 26 may provide an avenue for recovery. For example, the Board recently addressed
the argument that attorney's fees may be assessed against the Special Fund as costs under Section 26. In
Medrano v. Bethlehem Steel Corp (Medrano I), 18 BRBS 229 (1986), the Board held that attorney's fees
could potentially be assessed against the Special Fund pursuant to Section 26. The Board limited this result
to cases in which the claimant and the employer did not contest any issues, all payments had been
voluntarily made, and all of the judge's findings were supported by uncontroverted record evidence.
Subsequently, in Medrano v. Bethlehem Steel Corp.(Medrano II),
23 BRBS 223 (1990), the Board concluded that attorney's fees could not be awarded
against the Special Fund as Section 26 "costs" since the employer had requested
the formal hearing and refused to stipulate to the claimant's entitlement to
benefits. Thus, the district director's actions were not arbitrary and did
not protract the litigation.
The Board next addressed the issue of Special Fund liability in Rihner
v. Boland Marine & Mfg.
Co., 24 BRBS 84 (1990) and Toscano v. Sun Ship, Inc., 24 BRBS 207 (1991). In finding that the Special
Fund was not liable for attorney's fees, the Board in Toscano stated
decisively, "we hold that attorney's fees
may not be considered costs within the meaning of Section 26." 24 BRBS at 213.
At least two OALJ decisions have held that attorney's fees may be assessed
as "costs" pursuant
to Section 26 where the district director's conduct has been oppressive or vexatious. Bordelon v.
Republic Bulk Stevedores, 24 BRBS 648 (ALJ) (1991), subsequently over-ruled at 27 BRBS 280 (1994);
Hebert v. TTT Stevedores of Texas, 91-LHC-2107 (1993) (unpublished).
The conduct of the Director must be such that fraud has been practiced on
the court, or "that the
very temple of justice has been defiled." Chambers v. NASCO, Inc., 501 U.S. 32,46 (1991); Boland
Marine & Manufacturing Co. v. Rihner, 41 F.3d 997,1003, 29 BRBS 43,46 (CRT) (5th Cir. 1995);
Metropolitan Stevedore Co. v. Brickner, 11 F.3d 887, 27 BRBS 132 (CRT) (9th Cir. 1993). Following
this line of thinking, the OALJ decision of Hebert v. TTT Stevedores of Texas,
BRB No. 92-1239 (Jan. 27, 1996) (unpublished), held that there was no way that
attorney's fees could be paid out of the Special
Fund either as an exception to the "American rule" under Section 28 or as a
cost under Section 26. The Board had adopted this same position in Bordelon v. Republic Bulk Stevedores, 27 BRBS 280 (1994).
28.4 APPLICATION PROCESS
An attorney's fee award cannot be made without the filing of a fee application/petition.
20 C.F.R. § 702.132 and 20 C.F.R. § 802.203 provide similar requirements for
fee applications to the judge or district director and the Board.
28.4.1 Content Requirements
An attorney's fee application must be in writing. SeeVaden v. Maude-James, Inc.,
8 BRBS 760 (1978) (although the Board found that a former regulation allowed
verbal fee requests where the
requirements of 20 C.F.R. §702.132 are met).
The regulations require that a fee application must be supported by:
(1) a complete statement of the extent and character of the
necessary work performed;
(2) an hourly breakdown of the time spent in the particular activity;
(3) a description of the professional status of each person
performing the work, e.g., attorney, paralegal, law clerk, or other
legal assistant as opposed to their actual given name; and
(4) the normal billing rate for such person, and the hours devoted
by each such person to each category of work.
SeeNacirema Operating Co. v. Lynn, 577 F.2d 852 (3d Cir. 1978), cert. denied, 439 U.S. 1069
(1979); Newport News Shipbuilding & Dry
Dock Co. v. Graham, 573 F.2d 167 (4th Cir. 1976), cert.
denied, 439 U.S. 979 (1978); Ayers Steamship Co. v. Bryant, 544 F.2d 812 (5th Cir. 1977); Matthews
v. Walter, 512 F.2d 941 (D.C. Cir. 1975); Forlong
v. American Sec. & Trust Co., 21 BRBS 155 (1988).
"Unit" or "increment" billing does not satisfy the provisions
of 20 C.F.R. § 802.203(d) (1)-(3),
the Board's regulation dealing with what a complete fee application must contain. Pullin v. Ingalls
Shipbuilding, Inc., 27 BRBS 218, 219 (1993). Unit or increment billing is not related to actual work done
on a particular date or to the performance or talents of a specified person. In Pullin,
the Board held that the regulation was unambiguous as to the requirements of
a complete fee petition, and that the use of the
quarter-hour increment billing method alone cannot support approval of items
charged using the "unit" billing
practice. The billing must be for hours performed by a specific person, not
by a team effort of the lawyers, paralegals, and support staff. Each person's
hours need to be listed separately so that the trier of fact can
determine what work was necessary and what was traditional clerical work which
is not compensable. Pullin, 27 BRBS at 219, 220.
[ED. NOTE: The Board's regulations specify that the number of hours should be in quarter-hour
increments. However, following the holding in Ingalls Shipbuilding, Inc. v. Director, OWCP
(Fairley), 904 F.2d 705 (5th Cir. 1990) (Table), a claimant's attorney cannot charge more than 1/8
of an hour to review a single page letter and 1/4 of an hour to draft a single page letter. Bullock v.
Ingalls Shipbuilding, Inc., 29 BRBS 131 (1995). It should be noted that under Fifth Circuit Local
Rule 47.5.3, unpublished opinions issued before January 1, 1996 are precedent.]
In Biggs v. Ingalls Shipbuilding, Inc., 27 BRBS 237 (1993), the Board held that the administrative
law judge did not err in awarding a fee based on a fee petition that billed in quarter-hour increments. SeeSnowden v. Ingalls Shipbuilding, Inc., 25 BRBS 245 (1991). SeealsoJarrell
v. Newport News Shipbuilding & Dry Dock Co., 14 BRBS 883 (1982). In Biggs, the Board rejected the argument that the
fee order of the Fifth Circuit in Ingalls Shipbuilding, Inc. v. Director, OWCP, 904 F.2d 705 (5th Cir.
1990), mandates a different result in this case. In that fee order, the Fifth Circuit declined to award fees
for work before it based on a quarter-hour minimum billing method. The determination of the amount of
an attorney's fee is within the discretion of the body awarding the fee. Biggs, 27 BRBS at 243, citing 20
C.F.R. § 702.132. SeealsoMoody v. Ingalls Shipbuilding, Inc., 27 BRBS 173 (1993).
The Board has held that in determining whether or not certain expenses are disallowed as not being
necessary (or utilized) at the hearing, the test for compensability is whether the claimant's attorney,
at the time the work was performed, could reasonably regard it as necessary. Bazor v. Boomtown
Bell Casino, ___BRBS ___, (BRB No. 00-0928B)(July 11 2001); Kelly v. Department of Army, 34
BRBS 39 (2000).
Although the fee request need not be sworn to, McCloud v. George Hyman Construction Co., 11
BRBS 194 (1979), the Board has held that a fee request in the form of an affidavit is sound evidence and
the affidavit must be given considerable weight in determining the fee. Cuevas v. Ingalls Shipbuilding
Corp., 5 BRBS 739 (1977).
The usual remedy for a fee request that is incomplete, lacks specificity, or fails in any other way to
meet the standards of the regulations is to withhold the fee award until a complete statement is provided.
National Steel & Shipbuilding
Co. v. U.S. Dep't of Labor, 606 F.2d 875 (9th Cir. 1979); Ayers
Steamship Co. v. Bryant, 544 F.2d 812 (5th Cir. 1977); O'Keefe v. Morris Boney, Inc., 2 BRBS 363
(1975), rev'donothergroundssubnom. Director, OWCP v. O'Keefe, 545 F.2d 337 (3d Cir. 1976).
When a fee has been awarded and on appeal the Board has found itself unable to review the award
due to an inadequate petition, the Board has vacated the fee award and remanded for counsel to submit
a proper statement. Smith v. Aerojet Gen. Shipyards, 16 BRBS 49 (1983); Carter v. General Elevator
Co., 14 BRBS 90 (1981); McCloud v. George Hyman Constr. Co., 11 BRBS 194 (1979). Where costs
were not awarded because the petition lacked specificity regarding costs, the judge's decision was affirmed
with an instruction that claimant's attorney could file a supplemental petition. Mikell v. Savannah Shipyard
Co., 24 BRBS 100 (1990).
Even though the parties may agree on an appropriate attorney's fee in a settlement or otherwise,
the Board still requires the attorney to submit an itemized fee application. Rohm v. Republican Nat'l
Comm., 14 BRBS 266 (1981); Ballard v. General Dynamics Corp., 12 BRBS 966 (1980).
28.4.2 Time Requirements
The LHWCA and regulations do not specify the time period for filing a fee petition. In Baker v.
New Orleans Stevedoring Co., 1 BRBS 134 (1974), the Board held that
an application for approval and award of an attorney's fee pursuant to Section
28 of the LHWCA has no time limitation, thus a fee
application may be made subsequent to the filing of a decision. 20 C.F.R. § 702.132
provides, however, that the petition shall be filed within the time limit specified
by the district director, judge, Board, or court.
Additional Cases:
(1) In a black lung case involving a similar regulation, the Board affirmed a denial of
an award by the district director where the attorney failed to file within the time specified.
Bankes v. Director, OWCP, 765 F.2d 81 (6th Cir. 1985).
(2) In some cases, the Board has required that a fee request for services rendered
before the Board be received within 30 days from receipt of the Board's decision and
order to promote administrative efficiency. The employer had 10 days from receipt of the
claimant's fee request in which to respond. SeeSmith v. Ceres Terminal, 9 BRBS 121
(1978).
(3) In a black lung case for survivor's rights, the Sixth Circuit held that no attorney's
fees will be awarded for cases that have been closed due to inactivity within a given time
period (i.e., abandonment of the claim). Jordan v. Director, OWCP, 892 F.2d 482,487
(6th Cir. 1989).
28.4.3 Due Process Hearing Requirements
When the fee request is submitted, a failure to hold a formal hearing on the matter is not a violation
of due process when the fee request was presented to the judicial administrative body before whom the
work was performed. Hullinghorst Indus. v. Carroll, 650 F.2d 750 (5th Cir. 1981), cert. denied, 454
U.S. 1163 (1982); Dupre v. Cape Romain Contractors, 23 BRBS 86 (1989); Luker v. Ingalls
Shipbuilding, Inc., 3 BRBS 321 (1976).
If the employer challenges the fee request for work performed at the district director level, an
evidentiary hearing (to determine usual and customary fees, etc.) is only necessary if the employer raises
a bona fide factual issue in challenging the fee request. A bald challenge to an item in a fee application or
a mere assertion that the fee is excessive is insufficient. SeeMcCloud v. George Hyman Constr. Co., 11
BRBS 194 (1979); Monahan v. Portland Stevedoring Co., 8 BRBS 653 (1978).
Due process requires only that the fee request be served on the employer and that the employer
be given a reasonable time to respond. Todd Shipyards Corp. v. Director, OWCP, 545 F.2d 1176 (9th
Cir. 1976); Dupre v. Cape Romain Contractors, Inc., 23 BRBS 86 (1989); Ortega v. Bethlehem Steel
Corp., 7 BRBS 639 (1978); Green v. Atlantic Container Lines, Ltd., 2 BRBS 385 (1975) (Board implies
notice requirement in regulations).
Additional Cases:
(1) In Divine v. Atlantic Container Line, G.I.E., 25 BRBS 15 (1990), the Board held
that granting employer five days to respond to a fee petition was not reasonable.
(2) When the fee request is made to the employer, but the employer never receives
it, the Board has remanded for reconsideration of the fee issue. Lumsdon v. Portland
Stevedoring Co., 4 BRBS 397 (1976).
(3) In a similar case, a remand by the Board was unnecessary where the administrative
law judge heard the employer's objections after he awarded the fee, but stood by his
original fee award. Glover v. C & P
Tel. Co., 4 BRBS 23 (1976), rev'donothergroundssubnom. C & P
Tel. Co. v. Director, OWCP, 564 F.2d 503 (D.C. Cir. 1977), overruledbyDirector, OWCP v. Cargill, 709 F.2d 616 (9th Cir. 1983).
In Luna v. Todd Shipyards Corp., 12 BRBS 70 (1980), the Board did not find a denial of due
process in the judge's issuance of a contemporaneous compensation award and attorney's fee award. The
Board stated that there is no procedural requirement in the statute or the regulations that a judge must issue
either separate decisions or a combined decision. See 33
U.S.C. § 928; 20 C.F.R. §§ 702.134, 702.348.
In response to the employer's argument that it is not able to make timely objection
to the requested attorney's fee until after it is apprized of the amount of
compensation awarded, the Board stated that if an
employer has adequate notice of a fee request and is given a reasonable time
to respond, due process is satisfied. SeeGreen, 2 BRBS 385.
The Board in Luna further
found that the employer had an adequate basis on which to object to the requested
fee, since the "amount of benefits awarded" factor is only one of the factors listed under 20
C.F.R. § 702.132 to be considered by the adjuster when awarding a fee. Finally,
the Board found that any practice of issuing fee awards subsequent to the issuance
of the administrative law judge's decision
would result in unnecessary delay and could deter counsel from representing
the claimant under the LHWCA. Luna, 12 BRBS at 74-75.
28.5 AMOUNT OF AWARD
28.5.1 Sufficient Explanation
[ED. NOTE: Occasionally there are times when a fee will not be reduced even though, at first
glance, the fee seems out of proportion to the award the claimant receives. For example, in Barbera
v. Director, OWCP, 245 F.3d 282 (3rd Cir. 2001), 35 BRBS 27 (CRT) (2001), the Third Circuit
affirmed the attorney fee award, including hourly rates awarded and the full fee awarded without
making a limited success reduction. In Barbera,
the claimant was awarded a de minimis award and future medicals. The court
held that the ALJ's determination that the claimant established the
significant possibility of future economic harm was supported by substantial
evidence. The court found that the full fee-with no "limited success" reduction-was
supported by substantial evidence and, moreover, was in accordance with the SupremeCourt's holding in Hensley v. Eckerhart, 461
U.S. 424 (1983). In Barbera,
the court noted that the claimant prevailed against his employer's strong contestation
of jurisdiction, the extent of disability, and entitlement to future medical
benefits. Additionally, the court noted that the ALJ expressly noted counsel's
decades-long
experience in maritime litigation, high standing, and "success in this matter despite the employer's
tenacious defense by experienced counsel." These factors, in part, constitute
substantial evidence in determining the appropriateness of counsel's rates.]
When an administrative law judge reduces the fee awarded from the amount requested, the judge
is required to provide sufficient explanation of the reasons for the reduction. Devine v. Atlantic Container
Lines, G.I.E., 25 BRBS 15 (1990); Stowars v. Bethlehem Steel Corp., 19 BRBS 134 (1986); Speedy
v. General Dynamics Corp., 15 BRBS 448 (1983). This requirement applies regardless of which party
appeals, Cabral v. General Dynamics Corp., 13 BRBS 97 (1981), and also applies to reductions by the
district director. Mazzella v. United Terminals, Inc., 9 BRBS 191 (1978); Campbell v. Blake Constr. Co.,
8 BRBS 667 (1978).
On remand, the administrative law judge must specify the hourly rate awarded for the specific
services allowed and provide reasons for any disallowances. Jarrell
v. Newport News Shipbuilding & Dry
Dock Co., 19 BRBS 216 (1987) ("we note that regarding the requested 'enhancement' an attorney fee
should normally be based on the product of the reasonable hourly rate times the number of compensable
hours"). The judge must provide an adequate justification for any additional
amount. Stokes v. Jacksonville
Shipyards, Inc., 18 BRBS 237 (1986); Memmer v. I.T.T./Sheraton Washington, 18 BRBS 123 (1986).
Although the explanation for the reduction should be set out in the hearing officer's order and not
in a subsequent brief, the Board has occasionally reviewed the rationale in the brief in the interest of judicial
economy. Fairley v. Ingalls Shipbuilding, Inc., 22 BRBS 184 (1989); Williams v. Halter Marine Serv.,
Inc., 19 BRBS 248 (1987); Keith v. General Dynamics Corp./Quincy Div., 13 BRBS 404 (1981); Cabral
v. General Dynamics Corp., 13 BRBS 97 (1981). In Keith and Cabral, however, the Board found the
explanation insufficient even as supplemented by the brief.
The district director or judge must discuss how the regulatory criteria in
20 C.F.R. § 702.132 apply
to a reduction; mere reference to one factor has been held insufficient. Speedy v. General Dynamics Corp.,
15 BRBS 448 (1983); Fitzgerald v. RCA Int'l Serv. Corp., 15 BRBS 345 (1983); Huf v. Northwestern
Constr., Inc., 13 BRBS 730 (1981); Palmore v. Washington Metro. Area Transit Auth., 9 BRBS 388.22
(1978). Merely adopting the employer's objections is insufficient, Swain v. Bath Iron Works Corp., 14
BRBS 657 (1982), as is a statement that time spent was excessive. Collins v. General Dynamics Corp.,
14 BRBS 458 (1981); Eaddy v. R.C.
Herd & Co., 13 BRBS 455 (1981); Ballard v. General Dynamics
Corp., 12 BRBS 966 (1980).
The Board will affirm reductions which are fully explained and reasonable. SeeBerkstresser v.
Washington Metro. Area Transit Auth., 16 BRBS 231 (1984); Jensen
v. Maryland Shipbuilding & Dry
Dock Co., 15 BRBS 400 (1983); Waters v. Farmers Export Co., 14 BRBS 102 (1981); Doty v. Farmers
Export Co., 12 BRBS 785 (1980).
An attorney's fee award is unreasonable if the hearing officer fails to provide sufficient explanation
to support the reduction of the fee. Bell v. Volpe/Head Constr. Co., 11 BRBS 377 (1979), 13 BRBS 41
(1980), or an increase in the fee, Muscella
v. Sun Shipbuilding & Dry Dock Co., 8 BRBS 830 (1978).
In a Black Lung Act decision, the Board approved of a judge taking judicial notice of Altman & Weil
Survey of Law Firm Economics when determining the correctness of a hourly rate on a fee petition so long
as the judge clearly states what section is being utilized and includes a copy. Mullins v. Betty B. Coal Co.,
BRB No. 95-1149, Case No. 90-BLA-2597 (Mar. 14, 1996) (unpublished); Fitzgerald v. R.C.A.
International Serv. Corp., 15 BRBS 345 (1983); Schneider v. Director, OWCP, 12 BRBS 482 (1979)
(Black Lung Act decision).
28.6 FACTORS CONSIDERED IN AWARD
(Seealso Topic 28.6.4, infra.)
Section 702.132 of the regulations provides that any attorney's fee approved shall be reasonably
commensurate with the necessary work done and shall take into account:
(1) the quality of representation;
(2) the complexity of the legal issues involved; and
(3) the amount of benefits awarded.
20 C.F.R. § 702.132. SeealsoBrown v. Marine Terminals Corp., 30 BRBS 29 (1996) (en banc);
Newport News Shipbuilding & Dry
Dock Co. v. Graham, 573 F.2d 167 (4th Cir.), cert. denied, 439
U.S. 979 (1978); Watkins v. Ingalls Shipbuilding, Inc., 26 BRBS 179 (1993) (amount of benefits only one
factor considered); Snowden v. Ingalls Shipbuilding, Inc., 25 BRBS 245 (1991) aff'donrecon.,
25 BRBS 346 (1992) ("requested fee reasonably commensurate with necessary work done"); Mikell v. Savannah
Shipyard Co., 24 BRBS 100 (1990); Thompson v. Lockheed Shipbuilding & Constr. Co., 21 BRBS 94
(1988).
(4) the delay in the payment of the attorney's fee award
Anderson v. Director, OWCP, 91 F.3d 1322 (9th Cir.1996); Nelson v. Stevedoring Services of
America, 29 BRBS 90 (1995), following the holding in Missouri v. Jenkins, 491 U.S. 274
(1989) (school desegregation case) the Board found that "it is clear that enhancement for delay is appropriate in fee
awards under section 28 of the Act." 29 BRBS at 97; seealsoAllen v. Bludworth Bond Shipyard, 31
BRBS 95 (1997); Tarabocchia v. International Terminal Operating Company, Inc., BRB No, 92-0436
(Jan. 22, 1996) (unpublished) (Board upheld a bonus of $4,812.50 above the sum of the hours (32.25)
multiplied by the hourly rate ($250) for a lawyer who settled a complex case unusually quickly and
successfully then had to wait 13 years to be paid). In Jenkins, the United States Supreme Court
considered the Civil Rights Attorney's Fees Awards Act of 1976, 42
U.S.C §1988, finding that
"enhancement for delay in payment is, where appropriate, part of a 'reasonable attorney's fee.'" 491 U.S.
at 282.
[ED. NOTE: To the extent that prior Board holdings in Fisher v. Todd Shipyards Corp., 21 BRBS
323 (1988) and Blake v. Bethlehem Steel Corp., 21 BRBS 49 (1988) are inconsistent with the holding
in Jenkens, they are overruled. Nelson, 29 BRBS 112 (1996).]
The Ninth Circuit has held that either the historic or the currentrate may be used to determine
the fee award. D'Emanuele v. Montgomery
Ward & Co., Inc., 904 F.2d 1379 (9th Cir. 1990). If there
is an unreasonable delay in the satisfaction of the award then the court can use the current rate to increase
the value of the award to reflect the value of the delay. The Ninth Circuit used the current rate in the case
of a three year delay in payment, especially when it found that the firm could have taken other work that
would have paid promptly, had they not taken the case of Gates. Gates v. Dueukemjian, 977 F.2d 1300
(9th Cir. 1992).
The quarter hour billing method is reasonable and complies with 20 C.F.R. § 702.132. Snowden
v. Ingalls Shipbuilding, Inc., 25 BRBS 346 (1992); Neeley
v. Newport News Shipbuilding & Dry Dock
Co., 19 BRBS 138 (1986).
[ED. NOTE: In Ingalls Shipbuilding v. Director,OWCP (Fairley),
904 F.2d 705 (1990) (Table), counsel disclosed that they automatically charge
one-quarter hour for reviewing a single-page letter
and one-half hour for preparation of a single-page letter. As to this "minimum billing method" to
prepare an attorney fee request, the Fifth Circuit stated, "We are unwilling to accept this billing
method for calculation of attorney's fees for purposes of determining the amount the employer is
to be required to pay. We conclude that on the average, no more than one-eighth of an hour should
be required for reading a one-page letter and no more than one-quarter hour for writing a routine
one-page letter." As previously noted, under Fifth Circuit Local Rule 47.5.3, unpublished opinions
issued before January 1, 1996 are precedent.]
Other Factors for Consideration:
(1) The judge may consider his experience and personal knowledge of the facts and
the practice of law when he makes a determination of the reasonableness of an attorney's
fee. Morris v. California Stevedore & Ballast
Co., 10 BRBS 375 (1979).
(2) When fees are settled, due consideration must be given to the fact that the amount
of the attorney's fee was agreed to by the parties in the course of an arm's length
negotiation. Ballard v. General Dynamics Corp., 12 BRBS 966 (1980).
(3) The size of a claimant's compensation award is one factor to be considered by the
judge, although the fee award is not limited to the amount of compensation awarded.
(4) If the fee is to be assessed against the claimant, the regulations provide that the
award should also take into account the financial circumstances of the claimant. Thornton
v. Beltway Carpet Serv., Inc., 16 BRBS 29 (1983); Hildebrand v. Bergstrom Fiscal
Control Office, 9 BRBS 176 (1978).
There is no requirement that the amount of the fee award be commensurate with the claimant's
award of benefits. Strachan Shipping Co. v. Nash, 782 F.2d 513 (5th Cir. 1986). The Board has held
that the amount of a fee may not be limited by the amount of compensation gained since to do so would
drive competent counsel from the field. Battle v. A.J. Ellis Constr. Co., 16 BRBS 329 (1984); Barber v.
Tri-State Terminals, Inc., 3 BRBS 244 (1976), aff'dsubnom. Tri-State Terminals, Inc. v. Jesse, 596 F.2d
752 (7th Cir. 1979); Kelley v. Handcor, Inc., 1 BRBS 319 (1975), aff'donothergroundssubnom.
Handcor, Inc. v. Director, OWCP, 568 F.2d 143 (9th Cir. 1978). Similarly, where an attorney's fee is
awarded for work on appeal involving a fee award made below, the amount of the fee for appellate work
should not be limited based on the amount of the attorney's fee ultimately awarded below. Jarrell
v. Newport News Shipbuilding & Dry Dock Co., 14 BRBS 883 (1982).
Although the fee is not limited by the award, the amount of benefits awarded is a valid consideration
in awarding a fee, seeMuscella, 12 BRBS 272; White, 4 BRBS 279, including the amount of future
benefits. Roach v. New York Protective Covering Co., 16 BRBS 114 (1984). Thus, where a disability
award is reversed on appeal, the Board held that the district director may not consider such action on
remand in his determination of the attorney's fee as only the award of medical benefits remained. Speedy
v. General Dynamics Corp., 15 BRBS 448 (1983).
The ALJ does not commit reversible error, however, if the amount of benefits involved are not
considered as long as the employer has not shown that the attorney's fee actually awarded was not
reasonably commensurate with the necessary work performed or that the fee was an unreasonable breach
of discretion. Ross v. Ingalls Shipbuilding, Inc., 29 BRBS 42 (1995); Lebel v. Bath Iron Works Corp.,
544 F.2d 1112 (1st Cir. 1976). But the ALJ does err when the judge denies a fee request based on the
judge's comparison of the amount of the settlement offer and the ultimate award of benefits. Stokes v.
George Hyman Constr. Co., 14 BRBS 698 (1981). Further, the award cannot be contingent or based on
a fixed percentage of the compensation award. City of Burlington v. Dague, 505 U.S. 557 (1992); Lebel,
544 F.2d 1112; Enright v. St. Louis Ship, 13 BRBS 573 (1981); Ashton v. Diener's, Inc., 9 BRBS 539
(1978).
Since the amount of benefits is important in awarding an attorney's fee, the Board has remanded
for reconsideration of a fee award when it acts in such a way as to effect the amount of benefits awarded.
SeeRodriguez
v. California Stevedore & Ballast Co., 16 BRBS 371 (1984) (Board reverses the award
of benefits; the judge based the fee award on the amount of benefits); Mattox
v. Sun Shipbuilding & Dry
Dock Co., 15 BRBS 162 (1982); Phillips
v. California Stevedore & Ballast Co., 14 BRBS 498 (1981);
Bell v. Volpe/Heed Constr. Co., 13 BRBS 41 (1980) (Board finds the judge's determination of the amount
of benefits is or might be erroneous); Mitchell v. Bath Iron Works Corp., 11 BRBS 770 (1980) (Board
remands for further proceedings to determine the extent of partial disability). Additionally, if the Board
remands the case for a redetermination of the issues which would effect the amount of benefits, the Board
may not consider the fee application for work performed before the Board until the amount of benefits is
decided. Perkins v. Marine Terminals Corp., 16 BRBS 84 (1984).
The administrative law judge has wide discretion in awarding an attorney's fee and may award a
fee higher than that calculated by multiplying the hourly billing rate by the number of compensable hours if
the award is based on other factors set forth in Section 702.132. Jensen
v. Maryland Shipbuilding & Dry
Dock Co., 15 BRBS 400 (1983); Laplante v. General Dynamics Corp./Elec. Boat Div., 15 BRBS 83
(1982); White v. Old Dominion Marine Ry., 4 BRBS 279 (1976). The ALJ may also award a fee not
based solely on the attorney's usual billing rate where the judge relies on other factors set forth in Section
702.132. Muscella, 12 BRBS 272. Cf. Memmer v. ITT/Sheraton Washington, 18 BRBS 123 (1986)
(Board reversed $3,000 bonus as an abuse of discretion under facts of the case).
The Board has affirmed an awarded attorney fee which took into consideration the complexity of
the case and the level of services provided. Powell v. Nacirema Operating Co., 19 BRBS 124 (1986).
Additional factors to be considered are the difficulties presented by the case both as to the demands and
limitations imposed on the attorney by time, novelty, and complexity of the questions presented. SeePresley v. Tinsley Maintenance Serv., 529 F.2d 433 (5th Cir. 1976). The ALJ may also award a higher
fee than that which was requested, if the judge finds that a higher award is justified, Lilly v. Moon
Engineering Co., Inc., 5 BRBS 132 (1976), and the ALJ provides sufficient explanation for the higher fee
award. SeeStokes v. Jacksonville Shipyards, Inc., 18 BRBS 237 (1986).
In a Black Lung Act decision, the Board, as of March 14, 1996, approved a judge taking judicial
notice of Altman & Weil Survey
of Law Firm Economics when determining the correctness of a hourly rate
on a fee petition so long as the judge clearly stated what was being used and included a copy. Mullins v.
Betty B. Coal Co., BRB No. 95-1149, Case No. 90-BLA-2597 (Mar. 14, 1996) (unpublished);
Fitzgerald v. R.C.A. International Serv. Corp., 15 BRBS 345 (1983); Schneider v. Director, OWCP, 12
BRBS 482 (1979) (Black Lung Act decision).
Improper Considerations
The claimant's financial circumstances are irrelevant if the employer is responsible for the fees.
Thornton v. Beltway Carpet Serv., Inc., 16 BRBS 29 (1983); Hildebrand v. Bergstrom Fiscal Control
Office, 9 BRBS 176 (1978).
The judge may not reduce the claimant's counsel's fee award in order to compensate employer for
time spent objecting to the fee as this constitutes an attorney's fee award to employer which is not allowed.
Swain v. Bath Iron Works Corp., 14 BRBS 657 (1982).
In Taylor v. Marine Insulation Corporation, BRB No. 97-0108 (Oct. 1, 1997) (unpublished), the
issue was raised as to the ability of parties in a 33(g) settlement to include a settlement of the attorney's fees
to the exclusion of Section 28. The Board remanded the case to the ALJ to determine if: (1) the claimant
had made an informed waiver of his rights to attorney's fees in exchange for the third-party insurer's
approval of the settlement; (2) the settlement, signed only by the claimant's attorney, was enforceable
against the claimant; (3) a clarification of the whether the employer was defunct, bankrupt, or insolvent; (4)
whether Section 15 prohibits either the assignment of attorney's fees liability to the claimant or the
agreement not to pursue further benefits from the employer.
[ED. NOTE: The Board's remand order leaves a strong suggestion that such settlement is
permitted under the LHWCA. This case should be contradicted with regulations and case law noted
above.]
The plain language of 20 C.F.R. § 702.132(a) is: "No contract pertaining to the amount of a fee
shall be recognized." In Taylor, the agreement to pay the attorney's fees by the claimant in exchange for
the approval of the settlement by the 3d party represents a contract. Whether or not the settlement
provision is in conflict with the regulation, was not addressed by the Board.
The Board cited one case in the entire opinion as authority for the position that it took. However,
Mason v. Baltimore Stevedoring Co., 22 BRBS 413 (1989), held that if a claimant's attorney secures
increased benefits (above those given in an accepted settlement), then the attorney is entitled to an award
of fees which can be increased above the simple compensation of the hours times the rate, if the ALJ feels
it is necessary to accurately compensate the quality of the representation or the difficulty of the issue.
Cases not mentioned by the Board are City of Burlington v. Dague, 505 U.S. 557 (1992) (sets
out rational for why fee-shifting statutes, and not contingency or percentage fees should be used to
determine attorney's fees under the Clean Water Act. The two acts, CWA and LHWCA, have the same
provisions for attorney's fees); Pennsylvania v. Delaware Valley Citizens for Clean Air [Delaware Valley
I ], 478 U.S. 546, 565 (1986) (cited by City of Burlington, supra,
for the proposition that "These statutes
were not designed as a form of economic relief to improve the financial lot of lawyers."); Enright v. St.
Louis Ship, 13 BRBS 573, 574 (1981) ("A contingent fee arrangement is in violation of the act and any
private agreements concerning claimant's attorney's fees, without official approval, cannot be determinative
of a fee award").
[ED. NOTE: Administrative law judges confronted with a Taylor-like
situation should address 20 C.F.R. §702.132(a) in their analysis of the situation.
In doing so, the ALJ may distinguish the instant case from the Board's problematic
holding in Taylor.]
28.6.1 Hourly Rate
When the administrative law judge or district director reduces the requested hourly rate, the judge
must specify the rate awarded and provide an adequate rationale. Thompson v. McDonnell Douglas
Corp., 17 BRBS 6 (1984), modifiedinpart, Brady
v. J. Young & Co., 18 BRBS 167 (1985). The
rationale should indicate that the judge has considered the regulations. See 20
C.F.R. § 702.132. In a
Black Lung Act decision, the Board, as of March 14, 1996, approved a judge's
taking judicial notice of Altman & Weil
Survey of Law Firm Economics when determining the correctness of a hourly rate on a fee
petition so long as the administrative law judge clearly states which section is being using and therein
includes a copy. Mullins v. Betty B. Coal Co., BRB No. 95-1149, Case No. 90-BLA-2597 (Mar. 14,
1996) (unpublished); Fitzgerald v. R.C.A. International Serv. Corp., 15 BRBS 345 (1983); Schneider v.
Director, OWCP, 12 BRBS 482 (BLA) (1979).
In Edwards v. Todd Shipyards Corp., 25 BRBS 49 (1991), the Board affirmed the administrative
law judge's decision to lower the hourly rate from $150 to $125 based on the judge's finding that $125 was
the usual billing rate allowed by judges in that area and nothing in the record warranted a higher hourly rate.
In Welch v. Pennzoil Co., 23 BRBS 395 (1990), the Board affirmed a judge's finding reducing the
hourly rate in view of the judge's detailed rationale for doing so.
In Matthews v. Jeffboat, Inc., 18 BRBS 185 (1986), the Board found no error in the administrative
law judge's refusal to credit a survey of rates in the state. Miller v. Prolerized New England Co., 14 BRBS
811 (1981), aff'donothergrounds, 691 F.2d 45 (1st Cir. 1982); Luce v. Bath Iron Works Corp., 12
BRBS 162 (1979) (reduction held reasonable where ALJ found the charged rate excessive and a lower
rate more consistent with attorney's skill and experience).
The Board will not, however, affirm a rate so low as to be manifestly inadequate. Quintana
v. Crescent Wharf & Whse. Co., 18 BRBS 254 (1986) ($35.00 per hour is inadequate); Palmore v.
Washington Metro. Area Transit Auth., 14 BRBS 401 (1981) (reduction from $60.00 to $50.00 was
unreasonable where attorney was an expert in the field and had not requested an unreasonable rate).
The hourly rate should be based upon the rate in effect at the time the services were performed.
Hobbs v. Director, OWCP, 820 F.2d 1528 (9th Cir. 1987); Fisher v. Todd Shipyards Corp., 21 BRBS
323 (1988); Phillips v. California Stevedore & Ballast
Co., 14 BRBS 498 (1981).
Although the Seventh Circuit allowed the delay in payment of attorney's fees as a consideration
in setting the fees, Wells v. International Great Lakes Shipping Co., 693 F.2d 663 (7th Cir. 1982), the
Board in Hobbs, supra, stated that it disapproved of the practice of increasing fees to reflect the risk of loss
due to delay in longshore cases. Fisher v. Todd Shipyards Corp., 21 BRBS 323 (1988); Blake v.
Bethlehem Steel Corp., 21 BRBS 49 (1988).
In Blake, supra, the Board stated that augmentation of the hourly rate to reflect delay constitutes
an abuse of discretion under the LHWCA because factors such as risk of loss and delay of payment
generally occur in longshore cases and are considered to be incorporated into the normal hourly rate
charged by counsel. Further, the Board held that since attorney's fees are not compensation under the
LHWCA, there is no legal authority under the LHWCA for awarding interest. Blake, 21 BRBS at 55.
The Board has, however, affirmed an administrative law judge's award at an
hourly rate greater than that in effect at the time the claimant's attorney
rendered services. Noting that the judge had found that "the unusually protracted course of the litigation (over
6 years) in the ... case far exceeded what would normally be expected or foreseeable
in an administrative forum." The Board distinguished this case from Hobbs, 280 F.2d 1528. Cox v. Brady-Hamilton Stevedore Co., 25 BRBS 203 (1991).
As previously noted, any attorney fee approved shall be reasonably commensurate
with the necessary work done and shall, among other factors, take into account
the delay in the payment of the
attorney's fee award. 20 C.F.R. §702.132; Anderson v. Director, OWCP, 91 F.3d 1322 (9th Cir.1996); Nelson v. Stevedoring Services of America, 29 BRBS 90 (1995), following the holding in Missouri
v. Jenkins, 491 U.S. 274 (1989) the Board found that "it is clear that enhancement for delay is appropriate
in fee awards under section 28 of the Act." 29 BRBS at 97; SeealsoAllen v. Bludworth Bond Shipyard,
31 BRBS 95 (1997); Tarabocchia v. Int'l Terminal Operating Company, Inc., BRB No, 92-0436 (Jan.
22, 1996) (unpublished) (Board upheld a bonus of $4,812.50 above the sum of the hours-32.25-
multiplied by the hourly rate-$250- for a lawyer who settled a complex case unusually quickly and
successfully then had to wait 13 years to be paid). In Jenkins, the United States Supreme Court
considered the Civil Rights Attorney's Fees Awards Act of 1976, 42
U.S.C §1988, finding that
"enhancement for delay in payment is, where appropriate, part of a 'reasonable attorney's fee.'" 491 U.S.
at 282. To the extent that Fisher and Blake are inconsistent with the holding in Jenkins, they are
overturned. 29 BRBS 112.
The Ninth Circuit has held that either the historic or the current rate may be used to determine
the fee award. D'Emanuele v. Montgomery
Ward & Co., 904 F.2d 1379 (9th Cir. 1990). If there is an
unreasonable delay in the satisfaction of the award then the court can use the current rate to increase the
value of the award to reflect the value of the delay. The Ninth Circuit used the current rate in the case
of a three year delay in payment, especially when it found that the firm could have taken other work that
would have paid promptly, had they not taken the case of Gates. Gates v. Duekmejian, 977 F.2d 1300
(9th Cir. 1992).
An attorney need not bill the time spent performing administrative work at a lower hourly rate.
Holmes v. Tampa Ship Repair & Dry
Dock Co., 8 BRBS 455 (1978). Similarly, an administrative law
judge cannot reduce the attorney's hourly rate for office time as opposed to hearing or trial time. Gulley
v. Ingalls Shipbuilding, Inc., 22 BRBS 262 (1989); Fairley v. Ingalls Shipbuilding, Inc., 22 BRBS 184
(1989). An attorney can, however, request two separate rates in the fee application. Hilyer v. Morrison-Knudsen Constr. Co., 670 F.2d 208 (D.C. Cir. 1981), rev'donothergroundssubnom. Morrison-Knudsen Constr. Co. v. Director, OWCP, 461 U.S. 624 (1983).
[ED. NOTE: In a non-LHWCA, age discrimination claim, Real v. The Continental Group, Inc., 116
F.R.D. 211 (N.D. Cal. 1986) the district court judge held
that the defense counsel's hours and hourly rates were at least minimally relevant
to the employee's fee application and that the defense
counsel's hours and hourly rates were not information protected either by work-product
doctrine or attorney-client privilege but the defense counsel's statement of
fees and billing printouts were not
discoverable by the employer as these documents would necessarily reveal the
nature of legal services provided. The judge relied on Rule 401 of the Federal
Rules of Evidence, which defines "relevant evidence," and on Rule 26(b)(1) of the Federal Rules of Civil Procedure dealing with
"privilege." No presidential cases specifically dealing with this issue under
the LHWCA have been reported.]
28.6.2 Compensable Services
An attorney is entitled to compensation for all necessary work performed. The proper test for
determining if the attorney's work is necessary is whether at the time the attorney performs the work
in question the attorney could reasonably regard the work as necessary to establish entitlement.
Cabral v. General Dynamics Corp., 13 BRBS 97 (1981); Cherry
v. Newport News Shipbuilding & Dry
Dock Co., 8 BRBS 857 (1978). SeeBattle v. A.J. Ellis Constr. Co., 16 BRBS 329 (1984) (unsuccessful
settlement negotiations held compensable under this standard); Berkstresser v. Washington Metro. Area
Transit Auth., 16 BRBS 231 (1984) (time spent reading a memorandum compensable even though it
ultimately had no bearing on the outcome); Marcum v. Director, OWCP, 12 BRBS 355 (1980) (same
standard in black lung case).
The Board has disallowed fees for entries which are unnecessary, excessive, or duplicative.
Edwards v. Todd Shipyards Corp., 25 BRBS 49 (1991) (the Board reduced the number of hours for
telephone calls as they constituted over one-half of all hours billed); Gardner v. Railco Multi Constr. Co.,
19 BRBS 238 (1987); Berkstresser v. Washington Metro. Area Transit Auth., 16 BRBS 231 (1984).
The Board has disallowed an amount claimed by counsel under New Mexico's gross receipts tax.
Brinkley v. Department of the Army/NAF, 35 BRBS 60 (2001). In New Mexico, amounts received as
attorney fees are subject to this tax. The Board found that the tax is a part of counsel's overhead suggesting
that the billing rate claimed could have been adjusted upward to permit him to pay the tax without diluting
his fee. Also in Brinkley, the Board disallowed 10 hours claimed by counsel for familiarizing himself with
general provisions of the LHWCA.
Time spent preparing the motion for attorney's fees is not compensable as either billable
hours or as expenses relating to the case. In Sproull v. Stevedoring Services of America, 28 BRBS
271 (1994) (DecisiononRecon.) (enbanc), the Board, sitting enbanc, held that this was an activity that
was not reasonably necessary to protect claimant's interests. Seealso 20
C.F.R. §725.366(b); 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 Hensley v. Eckerhart, 461 U.S. 424 (1988);
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. Rose Pass Mines, Inc. was a bankruptcy proceeding which, by statute, demands
exhaustive detail in the fee petition.
[ED. NOTE: ButseeHill v. Avondale Industries, Inc., 32 BRBS 186 (1998) where a panel of the Board
in a percuriam decision followed Anderson v. Director, OWCP, 91 F.3d 1322 (9th Cir. 1996), 30
BRBS 67 (1996) (CRT), and awarded attorney fee time for time spent preparing a fee petition, finding it
compensable. The Board had previously only followed Anderson in a case which arose in the NinthCircuit, Price v. Brady-Hamilton Stevedoring Co., 31 BRBS 91 (1996).]
[Editor's Note: See Section 28.6.3, infra, for more on Fee Petitions.]
The claimant's attorney is entitled to a fee award for services rendered either reading the decision
and calculating the benefits awarded to the client or successfully defending the appeal of the fee award and
establishing employer's liability for the fee. Nelson v. Stevedoring Services of America, 29 BRBS 90
(1995); Jarrell v. Newport News
Shipbuilding & Dry Dock Co., 14 BRBS 883 (1982); Byrum
v. Newport News Shipbuilding & Dry Dock Co., 14 BRBS 833 (1982).
Additionally, if claimant's counsel is ultimately successful in procuring compensation benefits under
the LHWCA, counsel is entitled to fees for all services rendered the claimant at each level of the
adjudication process, even if claimant's counsel is unsuccessful at a particular level. Hole v. Miami
Shipyards Corp., 640 F.2d 769 (5th Cir. 1981). SeealsoDavis v. U.S. Dep't of Labor, 646 F.2d 609
(D.C. Cir. 1980). Attorney's fees, however, are only to be awarded for time spent and services rendered
which are reasonably necessary to protect a claimant's interest. Bakke v. Duncanson-Harrelson Co., 13
BRBS 276 (1980). SeealsoMarcum, 12 BRBS 355.
Attorney's fees are not allowed for time spent obtaining a lien for medical services rendered by a
third party that has not filed a claim for reimbursement on its own behalf, obtaining medicare, or
unsuccessfully attempting to obtain a Section 14(f) penalty. Quintana
v. Crescent Wharf & Whse. Co.,
18 BRBS 254 (1986). ButseeHunt v. Director, OWCP, 999 F.2d 419 (9th Cir. 1993), where the
claimant's physician intervened seeking reimbursement for medical services rendered. The Ninth Circuit
held that Section 7(d)(3) grants standing to the medical providers, where services have been rendered, to
seek benefits on behalf of the claimant. Hunt,
999 F.2d at 424. This means that the provider becomes the "person seeking benefits" under
28(a), thus entitling the provider to recover interest and attorney's fees in
connection with an award of medical fees under the LHWCA. Buchanan v. International Transportation
Services, 33 BRBS 32 (1999); Pozos
v. St. Mary's Hosp. & Medical Center, 31 BRBS 173 (1997).
Where a motion for sanctions was disallowed, both fees and costs incurred in the preparation of
the motion were disallowed. Brinkley v. Department of the Army/NAF, 35 BRBS 60 (2001).
Although a claimant's attorney may seek an enforcement order in federal district
court pursuant to Section 21(d) and Section 21(b)(3) provides that "payment of the amounts required by an award shall not
be stayed pending a final decision unless the Board orders a stay," that section
does not override Section 28(a) which provides that an order for attorney's
fees is not payable until the compensation order becomes
final. Section 21(b)(3)applies to the payment of compensation to the injured
longshoreman, not the longshoreman's attorney. Wells v. International Great Lakes Shipping Co., 693 F.2d 663 (7th Cir. 1982).
The District of Columbia Circuit stated:
The Act's use of the word "solely" does not preclude an issue-by-issue
examination of success but, rather, suggests that once success on an issue
is demonstrated, recovery is limited "solely" to work done to increase
compensation on that particular issue.
963 F.2d 1532, 1537.
The District of Columbia Circuit went on to explain that this view of the LHWCA is confirmed
by the legislative history. Id. See H.R. Rep. No. 1441, 92d Cong., 2d Sess. 9, 20, reprinted in
1972 U.S.C.C.A.N. 4698, 4706, 4717. As explained by a Report by the House Committee
on Education and
Labor (the "House Report"), the LHWCA's fee provision
authorize[s] assessment of legal fees against employers in cases where the
existence or extent of liability is controverted and the claimant succeeds
in establishing liability or obtaining increased compensation in formal
proceedings or appeals. Attorneys fees may only be awarded against the
employer where the claimant succeeds, and the fees awarded are to be
based on the amount by which the compensation payable is increased as
a result of litigation.
[ED. NOTE: The law is well established that an award of attorney's fees and costs is not
enforceable, and therefore not collectible, until all appeals are exhausted. Williams v. Halter Marine
Service, Inc., 19 BRBS 248, 253 (1987). However, the ALJ can proceed in one of two ways. The
judge can either postpone adjudicating all attorney fee related issues pending the outcome of the
appeal of the case-in-chief, or the ALJ can proceed to adjudicate these issues but hold the awarding
of an actual attorney fee in abeyance until the outcome of the appeal. The reader is cautioned that,
no matter which method the ALJ chooses the party should not unilaterally ignore an attorney fee
related order (i.e., order to file an attorney fee request or brief the fee request, or order to file an
opposition to an attorney fee, or brief the opposition to the fee request) simply because the case-in-chief has been appealed. The party that does so, does so at his or her own peril.]
28.6.3 Fee Petition
Time spent preparing the motion for attorney's fees is not compensable as either billable
hours or as expenses relating to the case. In Sproull v. Stevedoring Services of America, 28 BRBS
271(1994) (DecisiononRecon.) (enbanc), the Board sitting enbanc, held that this was an activity that was
not reasonably necessary to protect claimant's interests. Seealso 20
C.F.R. §725.366(b). 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 Hensley v. Eckerhart, 461 U.S. 424 (1988);
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. was a bankruptcy proceeding 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., was a bankruptcy case and
the court 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, 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, 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 Dague,
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
enbanc held
that the "activity" was necessary to the protection of the claimant's entitlement,
and hence it is a clerical function. Sproull, 28 BRBS 271, 277 (en banc). The Anderson holding
is also in conflict with 20 C.F.R. §725.366(b) which specifically prohibits
the awarding of fees for the preparation of the fee application.
In Wagner v. Department of the Army/NAF, BRB No. 96-1038 and 96-1038A (May 9, 1997)
(unpublished), a three judge panel of the Board held that they were going to follow the holding in Anderson.
However the absences of any language overruling or distinguishing Wagner from the enbanc holding in
Sproull, and the unpublished status of the holding, means that the general rule outside the Ninth Circuit
should still be in conformance with Sproull.
[ED. NOTE: There are five permanent members
of the Board. The Board normally sits in three judges panels. A panel decision
of the Board "shall stand unless vacated or modified by the
concurring vote of at least three permanent members sitting enbanc.." 20 C.F.R.§801.301 (c).
"The Board may delegate any or all of its powers except enbanc review
to panels of three members." 20 C.F.R. §801.301 (b). Thus, only an enbanc Board can overrule a three judge panel
and it takes the concurrence of three members of the enbanc Board to do so.]
The claimant's attorney may be awarded fees, however, 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 Co., 14 BRBS 883 (1982); Morris
v. California Stevedore & Ballast Co., 10 BRBS 375 (1979).
28.6.4 Losing on an Issue
Board Position
The Board has held that an ALJ may not refuse to award a fee for services rendered on issues upon
which the claimant did not prevail. Battle v. A.J. Ellis Constr. Co., 16 BRBS 329 (1984); Bouchard v.
General Dynamics Corp., 14 BRBS 839 (1982); Peterson v. Washington Metro. Area Transit Auth., 13
BRBS 891 (1981); Welding v. Bath Iron Works Corp. 13 BRBS 812 (1981); Cherry
v. Newport News Shipbuilding & Dry Dock Co., 8 BRBS 857 (1978). Butcf. George Hyman Constr. Co. v. Brooks, 963
F.2d 1532, 25 BRBS 161 (CRT) (D.C. Cir. 1992) (rejected Board's holding in Cherry) and General
Dynamics Corp. v. Horrigan, 848 F.2d 321, 21 BRBS 73 (CRT) (1st Cir. 1988), cert. denied, 488 U.S.
92 (1988).
This rule was developed in part because in most cases the issues are too interrelated to permit
allocation of the fee between successful and unsuccessful issues. Battle,
16 BRBS 329. Compare this rule with the situation where the ALJ bases an overall
fee reduction primarily on the fact that a "[c]laimant was
awarded only a minute fraction of the benefits he sought to recover." Stowars v. Bethlehem Steel Corp.,
19 BRBS 134 (1986). In Stowars,
the Board found this determination to be consistent with 20 C.F.R. § 702.132(a),
which states that any fee approved shall take into account the amount of benefits
awarded.
Similarly, the administrative law judge cannot reduce the time expended by the attorney on an issue
on which the employer concedes liability if the employer does not make the concession until the time of the
hearing. Cahill v. International Terminal Operating Co., 14 BRBS 483 (1981).
The Board has most recently addressed the issue of amount of attorney's fees when there is only
partial success in Rogers v. Ingalls Shipbuilding, Inc., 28 BRBS 89 (1993). In Rogers, the Board noted
that it had addressed the issue on similar facts in Bullock v. Ingalls Shipbuilding, Inc., 27 BRBS 90 (1993)
(en banc) (Brown and McGranery, JJ concurring and dissenting). In both cases, the Board cited the
Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983), for defining the condition under which a
claimant who achieves only limited success may recover attorney's fees.
[ED. NOTE: It should be noted that the prevailing
trend is to classify an attorney's fee award in terms of its "reasonableness" rather
than whether it is the result of a fully, or partially, successful prosecution
of the claimant's case.]
Hensley and Its Aftermath
The Hensley court made its
ruling pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42
U.S.C. § 1988. In Hensley, the United States Supreme Court noted that the degree of success
attained is the most crucial factor to consider and that if a plaintiff achieves only partial or limited success,
the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may
result in an excessive amount. 461 U.S. at 436, 440. The HensleyCourt stated
that one must consider "the relationship between the extent of success and the amount of the fee award." 461 U.S. at 439; Ingalls
Shipbuilding, Inc. v. Director, OWCP, 46 F.3d 66 (5th Cir. 1995) (Table). The Court stated that there
is no precise rule or formula, but that a fact finder may address such a situation by eliminating hours or
simply reducing the award. 461 U.S. at 436-37.
The Hensley court established the following two part test:
1) did the claimant's unsuccessful claims relate to the claims on which
the claimant was successful; and
<2) did the claimant succeed at a level that makes the hours
reasonably expended a satisfactory basis for fee award.
461 U.S. at 434.
< In applying the test, the HensleyCourt stated that when the different issues involve the same facts
or are based on the same legal theories, the claimant's overall success based on the number of hours
reasonably should be considered.
If the claimant achieves "excellent" results (substantial relief) then all
of the fees should be awarded. Where the plaintiff has won substantial relief,
the entire figure should be awarded, and no reductions should
be made merely because the plaintiff has not prevailed on every contention
raised. 461 U.S. at 437.
If the claimant is only partially successful (in light of the number of hours expended), however, then
the fees should be reduced accordingly. The HensleyCourt stated
that the attorney's fee award could properly be reduced in a situation where "the relief however significant, is limited in comparison to the
scope of the litigation as a whole." 461 U.S. at 441. In
such a case of partial or limited success, "the
product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be
an excessive amount." 461 U.S. at 437.
[ED. NOTE: Other tests are making their way through general, non-LHWCA litigation. For
example, In Barber v. Williamson, 254 F.3d 1223, (10th Cir. 2001), a race discrimination plaintiff
who recovered only nominal damages of a dollar on his harassment claim nevertheless may be
entitled to attorney's fees, provided he meets the criteria set out in Justice's O'Connor's
concurrence in.Farrar v. Hobby, 506 U.S. 103 (1992). The "O'Connor
criteria" for deciding
whether a plaintiff who recovers only nominal damages nevertheless is eligible
for attorneys' fees are: (1) the difference between the amount of damages recovered
and the amount sought; (2) the
significance of the legal issue on which the plaintiff claims to have prevailed;
and (3) the accomplishment of "some public purpose other than occupying the time and energy of counsel,
court, and client." At least five other federal circuits, in addition to the Tenth Circuit,
either explicitly or implicitly invoke the "O'Conner criteria" in deciding
whether to award attorney's fees in nominal damages cases.]
The District of Columbia Circuit and the First Circuit have also utilized this Hensley test in the
context of claims under the LHWCA. SeeGeorge Hyman Constr. Co. v. Brooks, 963 F.2d 1532, 25
BRBS 161 (CRT) (D.C. Cir. 1992) (Hensley analysis for attorney fee awards applied under LHWCA);
General Dynamics Corp. v. Horrigan, 848 F.2d 321, 21 BRBS 73 (CRT) (1st Cir. 1988), cert. denied,
488 U.S. 992 (1988). The Fifth Circuit has clearly held that the fee award should be "tailored
to [claimant's] limited success."Ingalls Shipbuilding, Inc. v. Director, OWCP [Baker], 991 F.2d 163,
166, 27 BRBS 14, 16 (CRT) (5th Cir. 1993).
The Board in Rogers stated that the Hensley Court
did not define "success" in terms of the
monetary amount awarded but rather in terms of how successful the plaintiff
was in achieving the claims asserted. Further, although "the amount
of benefits awarded is a relevant factor in determining the amount of an attorney's
fee awarded ... claimant's success must also be measured against the
amount of benefits voluntarily paid by the employer."Rogers, 28 BRBS 92 (1993) (citing Bullock).
SeealsoMoody v. Ingalls Shipbuilding, Inc., 27 BRBS 173, 178 (1993).
In Ahmed v. Washington Metropolitan Area Transit Authority, 27 BRBS 24 (1993), the claimant
succeeded only on his medical benefits claim, which was unrelated to the unsuccessful attempt to recover
additional disability benefits. The Board, citing Hyman, 963 F.2d 1532, vacated the fee award in as much
as the judge did not specifically consider the claimant's limited success in making the fee award. (The fee
awarded had been $3,000 and the claimant's medical expense recovery had been $611.50.) The Fifth
Circuit took a similar position in Ingalls Shipbuilding, Inc. v. Director, OWCP [Baker], 991 F.2d 163 (5th
Cir. 1993), where it remanded for a finding of attorney's fees consistent with the holding in Farrar v.
Hobby, 506 U.S. 103 (1992).
Ahmed should be compared with Nooner
v. National Steel & Shipbuilding Co., 19 BRBS 43
(1986). There, the Board affirmed a fee award noting that it was the Board's policy to allow an award of
attorney's fees for work performed in unsuccessful pursuit of a Section 48(a) claim (discrimination claim)
where the claimant prevailed in obtaining disability compensation. SeeBattle, 16 BRBS 329.
The First Circuit, however, in General Dynamics Corp. v. Horrigan, 848 F.2d 321 (1st Cir.
1988), affirmed a judge's award of attorney's fees where the judge found the consolidated claim was
successful as to the disability claim and unsuccessful on the discrimination claim, and awarded partial
attorney's fees. The First Circuit held that: 1) the claims were consolidated in the interests of expediency
and the record manifested the separateness of the events and evidence at issue in the two claims; and 2)
the discrimination claim did not increase the claimant's compensation.
The Board has held that any time spent by a claimant's attorney on the applicability of Section 8(f)
is not necessary since the source of the claimant's compensation is irrelevant to the claimant, thus such time
must be disallowed. Berkstresser v. Washington Metro. Area Transit Auth., 16 BRBS 231 (1984);
Avallone v. Todd Shipyards Corp., 13 BRBS 348 (1981); Lostaunau v. Campbell Indus., 13 BRBS 227
(1981), rev'donothergrounds, 678 F.2d 856 (9th Cir. 1982); Monaghan v. Portland Stevedoring Co.,
11 BRBS 190 (1979); Johnson v. Bender Ship Repair, 8 BRBS 635 (1978). When the only issue before
the Board is the applicability of Section 8(f), the claimant's counsel is not entitled to any fee for work
performed before the Board. Shaw v. Todd Pac. Shipyards Corp., 23 BRBS 96 (1989); Phelps
v. Newport News Shipbuilding & Dry Dock Co., 16 BRBS 325 (1984).
In Battle, 16 BRBS 329, the Board held that the claimant's counsel could be compensated for time
spent on an unsuccessful Section 48(a) discrimination claim where disability benefits were obtained. The
Board recognized the decision of the District of Columbia Circuit in Director, OWCP v. Brandt Airflex
Corp., 645 F.2d 1053 (D.C. Cir. 1982). In that case, the District of Columbia Circuit rejected the
Board's decision in Cherry, 8 BRBS 857, and found claimant's attorney entitled to a fee only on the issues
on which claimant prevailed; however, the only issue on which the claimant lost in Brandt Airflex Corp. was
the application of Section 8(f). Since the Board has consistently held that a claimant's attorneys are not
entitled to a fee for work on Section 8(f), the Board held the decision in Brandt Airflex Corp. was not
inconsistent with Board case law. Battle, 15 BRBS at 331 n. 2. Therefore, the Board held it would
continue to apply Cherry.
In Brown v. Bethlehem Steel Corp., 20 BRBS 26 (1987), the Board reduced the award of
attorney's fees for hours spent on the claimant's unsuccessful cross-appeal.
[ED. NOTE: Interest is not assessed on attorney fee awards. For more on this, see Topic 28.9.1
Attorney Fees-Interest.]
28.6.5 Collateral Actions
Generally, an attorney is not entitled to compensation under the LHWCA for time spent preparing
a state worker's compensation suit. Miller, 14 BRBS 811; Kimbel v. Rock Hall Marine Railway, Inc., 4
BRBS 389 (1976). An attorney is also not entitled to compensation for services performed in securing a
third party recovery for the claimant. Kahny v. Arrow Contractors of Jefferson, Inc., 15 BRBS 212
(1982), aff'dsubnom. Kahny v. OWCP, 729 F.2d 777 (5th Cir. 1984), overruledbyNicklos Drilling
Co. v. Cowart, 927 F.2d 828 (5th Cir. 1991).
The judge may, however, award a fee for services performed in connection with collateral services
if counsel shows that the same services and/or their products are necessary to, and are used in the
prosecution of, the LHWCA claim. Roach v. New York Protective Covering Co., 16 BRBS 114 (1984);
Eaddy v. R.C. Herd & Co., 13 BRBS 455 (1981); Van
Dyke v. Newport News Shipbuilding & Dry
Dock Co., 8 BRBS 388 (1978); Johnson v. Treyja, Inc., 5 BRBS 464 (1977); Turner v. New Orleans
(Gulfwide) Stevedores, 5 BRBS 418 (1977), rev'donothergrounds, 661 F.2d 1031 (5th Cir. 1981).
Further, the fact that an attorney is compensated by a claimant in the collateral action does not
preclude the attorney from receiving a fee award under the LHWCA. If the work in the collateral action,
however, reduces the time the attorney would have had to spend on the longshore claim, this must be
reflected in the award. Petro-Weld, Inc. v. Luke, 619 F.2d 418 (5th Cir. 1980). An attorney may not
be paid twice for the same work. Roach, 16 BRBS 114. SeeAdams v. Parr Richmond Terminal Co.,
2 BRBS 303 (1975). A charge incurred in filing and withdrawing a state claim is not recoverable under
the LHWCA. Jenkins v. Maryland Shipbuilding & Dry
Dock Co., 6 BRBS 550 (1977), rev'donothergrounds, 594 F.2d 404 (4th Cir. 1979).
28.6.5.1 No Attorney Fee Award Set-off
An employer can not offset the amount of overcompensation it has paid to an employee from the
amount of attorney fees awarded. Guidry v. Booker Drilling Co., 901 F.2d 485 (5th Cir. 1990).
28.6.6 Clerical Work
The professional status of the person performing the work must be kept separate from the type of
services performed. Time spent on traditional clerical duties by an attorney is not compensable and cannot
be included as part of the attorney's reported number of hours. Staffile v. Int'l Terminal Operating Co.,
Inc., 12 BRBS 895 (1980) (incorporated guidelines set forth in Marcum v. Director, OWCP, 12 BRBS
355 (1980) (black lung case)).
Likewise, traditional clerical duties performed by a clerical employee are not compensable services
for which separate billing is permissible, but rather must be included as part of the attorney's overhead in
setting the hourly rate requested. SeeMorris
v. California Stevedore & Ballast Co., 10 BRBS 375 (1979).
Traditional clerical duties include organizing and copying exhibits, preparation and collection of medical
bills. Quintana v. Crescent Wharf & Whse.
Co., 18 BRBS 254 (1986).
Time spent by clerical employees is compensable, however, and separately billable when the
clerical employee performs work which is usually performed by attorneys, law clerks, or paralegals.
Quintana v. Crescent Wharf & Whse.
Co., 18 BRBS 254 (1986); Staffile, 12 BRBS 895.
Work by a law clerk, paralegal, or lay person may be recoverable but only
if performed "in aid of
or in association with the supervising attorney on the claim". Todd Shipyards Corp. v. Director, OWCP,
545 F.2d 1176 (9th Cir. 1976).
28.6.7 Claimant's Costs
Section 28(d) of the LHWCA provides:
In cases where an attorney's fee is awarded against an employer
or carrier there may be further assessed against such employer or
carrier as costs, fees and mileage for necessary witnesses
attending the hearing at the instance of claimant. Both the
necessity for the witness and the reasonableness of the fees of
expert witnesses must be approved by the hearing officer, the
Board, or the court, as the case may be. The amounts awarded
against an employer or carrier as attorney's fees, costs, fees and
mileage for witnesses shall not in any respect affect or diminish the
compensation payable under this Act.
33 U.S.C. § 928(d).
Section 28(d) provides that the costs, fees, and mileage for necessary witnesses can be assessed
against the employer when an attorney's fee is awarded against the employer. Love v. Potomac Iron
Works, 16 BRBS 250 (1984); Tugwell v. Texas Stevedores, Inc., 12 BRBS 522 (1980). Furthermore,
costs, fees, and mileage of witnesses are only allowed if they are reasonable and necessary. Bradshaw v.
J.A. McCarthy, Inc., 3 BRBS 195 (1976), petitionforreviewdenied, 564 F.2d 89 (3d Cir. 1977).
The necessity of the witnesses and the reasonableness of the fees must be
approved by the judge, the Board, or the court. 20 C.F.R. § 702.135. SeePiecoro v. Pittston Stevedoring Corp., 8 BRBS 360
(1978); Robinson v. Bethlehem Steel Corp, 6 BRBS 723 (1977). The ALJ must rule with specificity as
to the cost items allowed or disallowed in claimant's application. Morris
v. California Stevedore & Ballast
Co., 8 BRBS 674 (1978). The amount awarded as attorney's fees, costs,
and mileage for witnesses shall not in any way diminish the compensation payable
under the LHWCA. 33 U.S.C. § 928(d); 20 C.F.R.
§ 702.135.
28.6.7.1 Witness Fees
Section 28(d) specifically provides for an award of witness fees, but only if an attorney's fee is
assessed against the employer. SeeByrum
v. Newport News Shipbuilding & Dry Dock Co., 14 BRBS
833 (1982). If the attorney's fee award is reversed, the claimant will not receive any witness fees. Wilhelm
v. Seattle Stevedore Co., 15 BRBS 432 (1983). The standard is whether the costs are necessary (i.e.,
if claimant's attorney thought the witness was necessary to adequately protect claimant's interest) and
whether the fees are reasonable. Hardrick v. Campbell Indus., Inc., 12 BRBS 265 (1980).
In regard to the necessity of a witness, the Board has specifically held that an ALJ may not deny
the costs and fees of a particular witness merely because the claimant was not successful on the particular
issue for which the witness' evidence was offered. Waters v. Farmers Export Co., 14 BRBS 102 (1981);
Cutaia v. Northeast Stevedoring Co., Inc., 12 BRBS 942 (1980); Lorenz
v. FMC Corp., Marine & Rail
Equip. Div., 12 BRBS 592 (1980). Additionally, a fee for an interpreter has been considered a necessary
cost under Section 28(d). Suarez v. Sea-Land Serv., Inc., 3 BRBS 17 (1975), rev'donothergroundssubnom. Sea-Land Serv., Inc. v. Director, OWCP, 552 F.2d 985 (3d Cir. 1977).
The ALJ has broad discretion in awarding a reasonable fee for witnesses, and the Board will
reverse the award only if the appealing party shows the award was arbitrary, capricious, or an abuse of
discretion. Topping v. Newport News
Shipbuilding & Dry Dock Co., 16 BRBS 40 (1983) (employer's
allegations that witness fee is excessive do not establish fee was unreasonable); Sawyer
v. Newport News Shipbuilding & Dry Dock Co., 15 BRBS 270 (1982) (it is not unreasonable for expert witnesses to charge
higher fees for their deposition testimony than what the experts witnesses normally earn per hour); Pernell
v. Capitol Hill Masonry, 11 BRBS 532 (1979) (employer's attack of $25.00 in deposition costs does not
establish witness' fee was unreasonable). SeealsoPiecoro v. Pittston Stevedoring Corp., 8 BRBS 360
(1978); Robinson v. Bethlehem Steel Corp., 6 BRBS 723 (1977).
The Board has found, however, an administrative law judge may not establish a fee for a witness
who had testified in two claims, one successful and one not, by merely dividing the fee request in half.
Instead, the Board remanded for the ALJ to determine what portion of the witness's services applied to
the successful claim. Byrum v. Newport
News Shipbuilding & Dry Dock Co., 14 BRBS 833 (1982).
Like an attorney's fee award, the ALJ may not substantially reduce a witness fee without adequately
explaining the reduction. Palmore v. Washington Metro. Area Transit Auth., 14 BRBS 401 (1981); Cutaia
v. Northeast Stevedoring Co., Inc., 12 BRBS 942 (1980); Lozupone
v. Stephano Lozupone & Sons, 12
BRBS 148 (1979).
[ED. NOTE: Clearly, the witness fees contemplated
here are not the same as those the subject of Section 25 of the LHWCA. Section
25 states that "Witnesses summoned in a proceeding before a
deputy commissioner or whose depositions are taken shall receive the same fees and mileage as
witnesses in courts of the United States." 33 U.S.C. § 925.]
28.6.7.2 Medical Reports and Testimony
The cost of a physician's testimony is recoverable if the judge finds the physician is a necessary
witness under Section 28(d). SeeHernandez
v. National Steel & Shipbuilding Co., 13 BRBS 147 (1980).
If the physician also prepares a medical report, the cost of the medical report is recoverable if it was written
for the physician's testimony at the hearing. SeeTownsend v. Potomac Elec. Power Co., 13 BRBS 127
(1981); Himelright v. Blake Constr. Co., 7 BRBS 399 (1978).
If the physician does not testify, but claimant submits the physician's medical report, the Board has
held that the cost of the medical report is recoverable under Section 28(d). Del
Vacchio v. Sun Shipbuilding & Dry Dock Co., 16 BRBS 190 (1984); Cahill v. International Terminal Operating Co., Inc.,
14 BRBS 483 (1981); Hardrick v. Campbell Indus., Inc., 12 BRBS 265 (1980).
SeealsoDe Felice v. Pittston Stevedoring Corp., 5 BRBS 660 (1977), where the Board vacated
and remanded the portion of the judge's decision denying costs of a doctor's report which was placed into
evidence in lieu of his testimony by agreement of both parties. The claimant's attorney cannot, however,
receive payment for the cost of the claimant's physical examination, since this would in effect be a request
for medical benefits. Swain v. Bath Iron Works Corp., 14 BRBS 657 (1982).
[ED. NOTE:Seealso 28.1.3, supra .]
28.6.7.3 Hearing Transcript
Section 28(d) only explicitly refers to the reasonable and necessary costs of witnesses and, thus,
the cost of a hearing transcript is not technically covered by this section. Hillary v. I.T.O. Corp. of
Baltimore, 3 BRBS 409 (1976), aff'dmem., 551 F.2d 306 (4th Cir. 1977); Bradshaw, 3 BRBS 195.
The Board has held, however, that in cases where an attorney's fee is awarded, reasonable and
necessary costs and expenses incurred by a claimant during the course of a proceeding may also be
assessed against the employer. Bradshaw, 3 BRBS 195. The Board previously found that a hearing
transcript was necessary if it was required for the preparation of the claimant's post-hearing brief. Parkhill-Goodloe Co., Inc. v. McIntosh, 550 F.2d 1283 (5th Cir. 1977), cert. denied, 434 U.S. 1033 (1978);
Ascione v. Universal Terminal & Stevedoring
Corp., 4 BRBS 44 (1976); Tortorici v. Hellenic Lines, Ltd.,
3 BRBS 210 (1976).
The Board has now held that the cost of a hearing transcript, as well as a transcript of a physician's
deposition, are reasonable and necessary expenses as a matter of law. Swain v. Bath Iron Works Corp.,
14 BRBS 657 (1982); Hicks v. Pacific
Marine & Supply Co., Ltd., 14 BRBS 549 (1981); Luce v. Bath
Iron Works Corp., 12 BRBS 162 (1979); Collins v. Todd Shipyards, Inc., 11 BRBS 232 (1979).
28.6.7.4 Travel Expenses
Section 28(d) does not specifically allow travel expenses for an attorney, but since the Board has
held that reasonable and necessary costs and expenses incurred by a claimant during the course of a
proceeding are reasonable, Bradshaw, 3 BRBS 195, where the claimant's attorney has incurred reasonable
and necessary travel expenses in excess of normal overhead, such expenses may be considered by
the judge in assessing a fee award against the employer under Section 28(a). Harrod
v. Newport News Shipbuilding & Dry Dock Co., 14 BRBS 592 (1981) (1.5 hours between attorney's office and place of
hearing is too lengthy to be considered incidental overhead expense); Griffin v. Virginia International
Terminals, Inc., 29 BRBS 133 (1995) (20 to 22 miles each way to hearing was local in nature to become
part of overhead); Stillwell v. Home Indem. Co., 5 BRBS 436 (1977), pet. forreviewdismissed, 597 F.2d
87 (6th Cir.), cert. denied, 444 U.S. 869 (1979); Bradshaw, 3 BRBS 195.
SeealsoRyan-Walsh Stevedoring Co., Inc. v. Trainer, 601 F.2d 1306 (5th Cir. 1979) (court
allowed, as cost to the prevailing claimant's attorney, an amount for travel to the appellate hearing for oral
argument under Section 28(a)). Both travel time and costs may be awarded, with the standard being
whether such costs are reasonable and necessary and in excess of that normally considered overhead. SeeSwain v. Bath Iron Works Corp., 14 BRBS 657 (1982); Lopes v. New Bedford Stevedoring Corp., 12
BRBS 170 (1979).
The Board has held, however, that where matters could have been handled by telephone or by
letter, travel time and expenses for consultation with a claimant who is too disabled to travel are not
compensable. Davenport v. Apex Decorating Co., Inc., 18 BRBS 194 (1986). Additionally, travel
expenses will be awarded if necessitated by a lack of competent counsel in area; otherwise, it is
considered part of normal overhead. Neeley
v. Newport News Shipbuilding & Dry Dock Co., 19 BRBS
138 (1986).
The LHWCA and regulations do not provide for payment of travel expenses incurred by a
claimant. Love v. Potomac Iron Works, 16 BRBS 250 (1984). Moreover, as Section 28(d) provides for
an award of costs only where attorney's fees are awarded and no fee was awarded here, the claimant's
costs of $144.00 to attend an informal conference were not reimbursable. Id.
Attorney Waiting Time
Three and one half hours of time an attorney spent waiting for the hearing to begin is also necessary
and reasonable inasmuch as the attorney was ordered to be present although he was not notified of when
his case would be called. Harrod, 14 BRBS 592. The Board noted that there was no indication in Harrod
that the delay was caused, either in whole or in part, by counsel's actions.
28.6.7.5 Miscellaneous Cost of Claimant
Necessary and reasonable costs incurred by a claimant do not include the cost of an economic
projection of claimant's loss of wages prepared by an economic consulting firm, Smelcer
v. National Steel & Shipbuilding Co., 6 BRBS 215 (1977), nor having the claimant accompanied to a medical examination,
Cahill v. International Terminal Operating Co., 14 BRBS 483 (1981). In Brown v. Bethlehem Steel Corp.,
20 BRBS 26 (1987), the Board held that postage was considered part of attorney overhead; furthermore,
phone calls will be disallowed when improperly documented.
Photocopying Expenses
In Cahill, the Board allowed photocopying expenses where reasonable and necessary for
preparation or presentation of case. Subsequently, in Pritt v. Director, OWCP,
9 BLR 1-159 (1986), a black lung case, the Board affirmed the district director's
finding that photocopying costs were part of
overhead and that furthermore "to the extent Cahill is inconsistent with Pritt, Cahill is
overruled."
In Picinich v. Lockheed Shipbuilding, 23 BRBS 128 (1989), however, the Board distinguished Pritt stating
that it is empowered to award fees commensurate with necessary work done before
it and "to the
extent the Board finds a request for photocopying expenses reasonable and necessary to work performed
before the Board, they won't be automatically disallowed as office overhead." Further, the Board noted
that the employer could challenge on the grounds that costs are not necessary in view of the circumstances
of the case or that the claimant's attorney had not established reasonableness by itemizing with specificity.
Finally, the Board held that it "remains within the discretion of the district
director or the judge to find, in any given case, based on the record evidence,
that photocopying expenses are, or are not, part of attorney
overhead, or that such expenses were unnecessary or unreasonable."
[ED NOTE: Perhaps a distinction can be drawn between photocopying in an attorney's office and
photocopying at, for example, a hospital to obtain copies of medical records.]
On-line Computer Legal Research
On-line computer legal research costs are not taxable expenses to the employer/carrier. Migis v.
Pearle Vision, Inc., 944 F.Supp. 508, 518 (N.D. Tex. 1996), aff'dinpart, rev'dinpartonothergrounds,
135 F.3d 1041, 1049 (5th Cir. 1998). The court held in Migis that
on-line research costs are "akin to
overhead costs which cannot be recovered under 28 U.S.C. § 1920." Id. The rationale in Migis has been
followed by at least one administrative law judge. Estay v. Terminal Stevedores, Inc., 96-LHC-1966 (June
15, 1998) (Romero, ALJ), aff'dinpart, remandedinpartonothergrounds, BRB No. 98-0841 (March
15, 1999) (unpublished).
28.7 AUTHORITY TO AWARD FEES
28.7.1 Generally
Level of Proceedings
Section 28 and 20 C.F.R. § 702.132 provide that an attorney seeking a fee
shall make application to the district director, administrative law judge,
Board, or court, as the case may be, before whom the
services were rendered.
Generally, each body independently determines the worth of the representation. Holliday v. Todd
Shipyards Corp., 654 F.2d 415, (5th Cir. 1981), overruledbyPhillips v. Marine Concrete Structures,
Inc., 895 F.2d 1033 (5th Cir. 1990); Ayers Steamship Co. v. Bryant, 544 F.2d 812 (5th Cir. 1977).
Pre-Controversion Fees
In Liggett v. Crescent City Marine
Ways & Drydock Co., Inc., 31 BRBS 135 (1997), the Board
formally overturned the jurisprudence regarding the awarding of attorney's fees for services rendered prior
to the claim being controverted. Following the holding in the Black Lung case of Jackson v. Jewell Ridge
Coal Corp., 21 BLR 1-27 (1997) (en banc) (Smith and Dolder, JJ., disenting); the Board ruled that the
Employer was liable for the pre-controversion fees. The rational for the new holding is that Hensley v.
Eckerhart, 461 U.S. 424 (1983), mandates the use of
a two step procedure for the determination of what are reasonable fees. The
Board is using the open definition of "reasonable attorney's fees" to allow
the district directors to award fees for work preformed prior to the running of the statutorily mandated bar
in Section 28(a) which prevents the assessing of liability for attorney's fees until: (a) 30 days after the
employer receives notice of the claim; or (b) at the point of controversion.
The new holding is limited in its application as the Fourth and Fifth Circuit's have rulings
on point holding that pre-controversion fees are not awardable in these situations. SeeKemp
v. Newport New Shipbuilding & Dry Dock Co., 805 F.2d 1152, 19 BRBS 50 (CRT) (4th Cir. 1986);
Watkins v. Ingalls Shipbuilding, Inc., 26 BRBS 179, 185 (1993), aff'd mem., 12 F.3d 209 (5th Cir.
1993). There is also the possibility that the holding will be limited in the Ninth Circuit depending on
whether the future jurisprudence follows the holding in Anderson or by Todd Shipyards Corp. v. Director,
OWCP [Watts], 950 F.2d 607, 25 BRBS 65 (CRT) (9th Cir. 1991).
It is the position of the Office of Administrative Law Judges that Liggett only applies to
discretionary awards of the district director, which are directly appealable to the Board. The
holding in Liggett should not change the normal criteria for the awarding of attorney's fees under an Order
issued though the Office of Administrative Law Judges.
Historical Note
Initially, the Board held that the ALJ could award a fee to a claimant's attorney for work performed
before the district director if the judge conducted an evidentiary hearing on the matter so as to comply with
due process. Fino v. Bethlehem Steel Corp., 5 BRBS 223 (1976). An ALJ was not required, however,
to award fees for services rendered at the district director level since the claimant's attorney could apply
directly to the district director for such a fee. Sierra v. Maher Terminals, 7 BRBS 20 (1977).
The Board followed Fino in numerous cases modifying it somewhat to require that the judge hold
a hearing only where the employer specifically objected to the request and the objection raised a bona fide
factual question. SeeBallard
v. Newport News Shipbuilding & Dry Dock Co, 8 BRBS 676 (1978).
The Fourth Circuit, however, held that an ALJ lacked authority to award a fee for work
performed at the district director level. Newport
News Shipbuilding & Dry Dock Co. v. Director, OWCP,
594 F.2d 986 (4th Cir. 1979). SeealsoC & P
Tel. Co. v. Director, OWCP, 615 F.2d 1368 (D.C. Cir.
1980) (per curiam), rev'ginrelevantpartJones
v. Chesapeake & Potomac Tel. Co., 11 BRBS 7 (1979).
In view of the Fourth Circuit's decision in Watkins, the Board reconsidered its prior holdings
allowing the administrative law judge to award a fee for work performed before the district director and,
in Owens v. Newport News Shipbuilding & Dry
Dock Co., 11 BRBS 409 (1979), it held that each
administrative level should award fees for services rendered at such level where a fee is otherwise proper.
If the order does not delineate between fees awarded for work performed before the OALJ and
those performed at the district director level, the entire award will be vacated and the case remanded.
Swain v. Bath Iron Works Corp., 14 BRBS 657 (1982). CompareMiller, 14 BRBS 811, wherein the
Board modified an award to recover only time claimed after the date of the referral letter.
28.7.2 Claims Examiner's Authority
In cases where the parties are unable to settle at the district director level, but do reach a settlement
before the OALJ hearing, the Board still requires the claimant's attorney to apply to the administrative law
judge for all services performed after the informal conference proceedings were ended to the date the judge
issues the decision. Revoir v. General Dynamics Corp., 12 BRBS 524 (1980); Brown v. General
Dynamics Corp./Elec. Boat Div., 12 BRBS 528 (1980); Ross v. General Dynamics Corp./Elec. Boat Div.,
11 BRBS 449 (1979).
A claims examiner does not have the authority to approve or award an attorney's fee pursuant to
Section 28. Tupper v. Teledyne Movable Offshore, 13 BRBS 614 (1981); Hernandez v. Sealand Serv.,
Inc., 9 BRBS 1076 (1978); Mazzella, 8 BRBS 755 and 9 BRBS 191; Perdomo
v. Tug & Barge Dry
Dock, 8 BRBS 756 (1978). An assistant district director has the authority to award a fee only if the
assistant has been authorized to perform the functions of the district director. Hill v. Nacirema Operating
Co., 12 BRBS 119 (1980), appealdismissedsubnom. Nacirema Operating Co. v. Director, OWCP, 80-1366 (4th Cir. July 25, 1980).
These rulings are based on the premise that although administrative or ministerial acts may be
delegated, the district director lacks authority to delegate discretionary or quasi-judicial acts. SeeMazzella
v. United Terminals, 9 BRBS 191 (1978). In Bradley v. Director, OWCP, 8 BLR 1-418 (1985), a black
lung case, the Board held that a claims examiner properly issued an order setting a time limit for filing a fee
petition as that was a ministerial act.
ALJ Level
It is now well-settled that an ALJ can only award fees for services performed before OALJ, i.e.,
the hours spent between the close of the informal conference proceedings before the district director and
the issuance of the judge's decision and order. Revoir v. General Dynamics Corp., 12 BRBS 524 (1980).
Additional cases:
(1) The Board has held that the letter of referral from the district director
to the Office of Administrative Law Judges provides the best indication of the date informal
conference proceedings terminated. Prolerized New England Co. v. Miller, 691 F.2d 45
(1st Cir. 1982); Fitzgerald v. RCA Int'l Serv. Corp., 15 BRBS 345 (1983).
(2) Post-decision and order billable hours generally should not be awarded
by the ALJ. Smith v. Aerojet Gen'l Shipyards, 16 BRBS 49 (1983); Lumsdon v. Portland
Stevedoring Co., 7 BRBS 415 (1978). SeealsoCollins v. Todd Shipyards, Inc., 11
BRBS 232 (1979). The exceptions to this rule are the hours awarded for reading the
decision and calculating the benefits awarded to the client. Nelson v. Stevedoring Services
of America, 29 BRBS 90, 95 (1995); Everett v. Ingalls Shipbuilding, Inc., 33 BRBS 38
(1999), enbanconrecon., upholding 32
BRBS 279(1998)("Wind-up" time included time
spent invol.ving the forwarding of the compensation payment to the claimant, an
explanation to the claimant that employer had not provided the wage records necessary
to determine whether the proper amount of benefits had been paid, and counsel's
subsequent efforts to procure the requisite records and ensure that the proper amount of
compensation had been paid.) The Board stated that such "'wind up' services
are routinely awarded by the administrative law judge, who is in the best position
to evaluate
the reasonableness of the time claimed."
[ED. NOTE: The en banc Board in Everett distinguished that case from Wilkerson v. Ingalls
Shipbuilding, Inc., 125 F.3d 904, 31 BRBS 150 (CRT)(5th Cir. 1997). In Wilkerson, the employer
began paying the claimant compensation prior to the time the case was transferred to OALJ.
Despite this payment, the claimant continued to pursue his claim before an ALJ seeking additional
benefits, prejudgment interest, Section 14(e) penalties and an attorney's fee. The Fifth Circuit held
that the claimant was not entitled to any additional compensation, or to interest and a Section 14(e)
assessment and thus concluded that the claimant's counsel was not entitled to recover an attorney's
fee for the work performed in pursuing theclaimant's unsuccessful claim. According to the Board,
the distinguishing feature in Everette was
that the claimant never sought any additional compensation without success. Rather,
the claimant obtained a voluntary payment from the
employer. The Board opined that counsel's work subsequent to the payment was
an effort to "wind-up" the claimant's claim and ensure that the claimant received
everything to which she was entitled pursuant to the employer's voluntary payment
of benefits.]
The ALJ can award fees for services performed before him even where the case is being appealed.
Williams v. Halter Marine Serv., Inc., 19 BRBS 248 (1987); Norat
v. Universal Terminal & Stevedoring
Corp., 9 BRBS 875 (1979).
[ED. NOTE: The law is well established that an award of attorney's fees and costs is not
enforceable, and therefore not collectible, until all appeals are exhausted. Williams v. Halter Marine
Service, Inc., 19 BRBS 248, 253 (1987). However, the ALJ can proceed in one of two ways. The
judge can either postpone adjudicating all attorney fee related issues pending the outcome of the
appeal of the case-in-chief, or the ALJ can proceed to adjudicate these issues but hold the awarding
of an actual attorney fee in abeyance until the outcome of the appeal. The reader is cautioned that,
no matter which method the ALJ chooses the party should not unilaterally ignore an attorney fee
related order (i.e., order to file an attorney fee request or brief the fee request, or brief the
opposition to the fee request) simply because the case-in-chief has been appealed. The party that
does so, does so at his or her own peril.]
Board Level
The Board does not have the authority to award a fee for any work performed before the ALJ.
Colburn v. General Dynamics Corp., 21 BRBS 219 (1988); Kahny v. Arrow Contractors of Jefferson,
Inc., 15 BRBS 212 (1982), aff'dsubnom. Kahny v. OWCP, 729 F.2d 777 (5th Cir. 1984), overruledbyNicklos Drilling Co. v. Cowart, 927 F.2d 828 (5th Cir. 1991); Dygert v. Manufacturer's Packaging
Co., 10 BRBS 1036 (1979); Thensted v. Litton Sys., Inc., 5 BRBS 231 (1976).
Court Level
Similarly, the circuit courts only have authority to award attorney's fees for work done on appeal
from the Board, but not for work done before the judge or the Board. Ford
Aerospace & Communication
Corp. v. Boling, 684 F.2d 640 (9th Cir. 1982); Ayers Steamship Co. v. Bryant, 544 F.2d 812 (5th Cir.
1977). ButseeHensley v. Washington Metro. Area Transit Auth., 690 F.2d 1054 (D.C. Cir. 1982),
where the District of Columbia Circuit awarded attorney's fees for work performed before the Supreme
Court in view of the Supreme Court's explicit choice to leave the fee decision to the circuit court, although
the circuit court also held that it had no authority to award costs incurred for services before the Supreme
Court.
28.7.3 Order
The district director's fee award must be contained in an order. A letter instructing employer of
its liability and setting the amount of the fee is insufficient. Thornton v. Beltway Carpet Serv., Inc., 16
BRBS 29 (1983); Carpenter v. Lockheed
Shipbuilding & Constr. Co., 14 BRBS 382 (1981); Hill, 12
BRBS 119; Lopes v. New Bedford Stevedoring Corp., 12 BRBS 170 (1979). SeealsoKeith v. General
Dynamics Corp./Quincy Div., 13 BRBS 404 (1981) (explanation for reductions must also be contained
in order).
28.8 PENALTY FOR UNAPPROVED ATTORNEY FEE
Section 28(e) provides:
A person who receives a fee, gratuity, or other consideration on
account of services rendered as a representative of a claimant,
unless the consideration is approved by the deputy commissioner,
administrative law judge, Board, or court, or who makes it a
business to solicit employment for a lawyer, or for himself, with
respect to a claim or award for compensation under this Act, shall
upon conviction thereof, for each offense be punished by a fine of
not more than $1,000 or be imprisoned for not more than one year
or both.
33 U.S.C. § 928(e).
Section 28(e) provides for a fine and/or imprisonment to a person who is
convicted of receiving a fee or other consideration for services rendered as
a representative of a claimant without approval by the
district director, ALJ, Board, or circuit court. 33 U.S.C. § 928(e); 20 C.F.R. § 702.133.
28.9 ATTORNEY'S FEES AND SETTLEMENTS
The LHWCA does not prohibit the parties to a claim from agreeing on an appropriate
attorney's fee. The Board has held that a settlement agreement in and of itself
is not sufficient to mandate an award
of the agreed upon fee; the fee request must comply with the requirements of
20 C.F.R. § 702.132 and
Section 28. Ballard v. General Dynamics Corp., 12 BRBS 966 (1980).
The Seventh Circuit has held that Section 28(a) of the LHWCA indicates that an award of fees
requires administrative or judicial approval even when an employer agrees with the claimant's counsel on
the appropriate award. Eifler v. Peabody Coal Co.,
27 BRBS 168 (CRT) (1993) (this is a Black Lung Act decision; however, the Black
Lung Act, by reference, incorporates the relevant provisions of the
LHWCA and its regulations. 30 U.S.C. § 932(a)).
As long as the parties have engaged in arm's length negotiations, however, the fee agreement infers
an element of reasonableness and should be approved if there is no evidence of collusion and it is not
clearly excessive. Id. The private agreement concerning claimant's attorney's fees, however, cannot be
determinative of a fee award without official approval. Lauzon v. Strachan Shipping Co., 782 F.2d 1217
(5th Cir. 1985); Armor
v. Maryland Shipbuilding & Dry Dock Co., 19 BRBS 119 (1986).
If the parties desire to settle attorney's fees as part of the complete settlement agreement a fully
itemized description of attorney's fees must be specified as required
by 20 C.F.R. § 702.132.
Additionally, the attorney fee amount must be stated totally separate from
the compensation amount, not as a subtotal of a complete settlement package
amount. See 20 C.F.R. § 702.242(b)(1).
Further, if the settlement agreement is automatically approved due to the
inaction of the judge after 30 days, as provided in 20 C.F.R. § 702.241(d), the attorney fees provision shall also be considered
approved within the meaning of Section 28(e). 20 C.F.R. § 702.241(e); 20 C.F.R. § 702.242(b)(1). If
the attorney fee portion of the settlement has not been itemized, however, the entire settlement package will
be deemed incomplete and not approved. 20 C.F.R. § 702.242(b)(1).
The LHWCA also does not prohibit an employer and a claimant from agreeing to a settlement
which discharges both the claimant's attorney's fees and claimant's compensation due from the employer,
even though the agreement does not specify the exact amount of the attorney's fee. Carswell v. Wills
Trucking, 13 BRBS 340 (1981). Because the amount of a claimant's compensation is then dependent upon
and interrelated with the amount for the claimant's attorney's fee, however, the Board has required in such
cases that:
(1) the judge specifically determine that the amount of compensation
after the attorney's fee is deducted is in the best interest of the
claimant; and
(2) at the time the claimant signs the agreement, the claimant is
cognizant of the amount, or at least the minimum amount, to be
received from the total settlement proceeds.
Carswell, 13 BRBS 340.
These requirements also apply when the parties agree to a settlement amount, but it is unclear
whether the parties understand that the settlement encompasses only compensation or both compensation
and the attorney's fee. Aquilino v. ITT Continental Baking Co., 13 BRBS 576 (1981); Enright v. St. Louis
Ship, 13 BRBS 573 (1981).
The requirement that a claimant be cognizant of the amount he will receive from the total settlement
proceeds is not met if it is unclear whether the claimant understands that he is responsible for paying the
fees from the settlement proceeds, which would thereby reduce the amount of compensation he would
receive. Gjertson v. Pacific Architects & Eng'rs,
Inc., 14 BRBS 885 (1981); Jankowski v. United
Terminals, Inc., 13 BRBS 727 (1981); Enright, 13 BRBS 573.
If the minimum amount of compensation the claimant would actually receive can be determined by
calculation from the figures given in the agreement, however, the second Carswell requirement is met.
Rohm v. Republican Nat'l Comm., 14 BRBS 266 (1981); Barber
v. FNC Marine & Rail Equip. Div., 13
BRBS 1081 (1981) (Board nonetheless remanded for "best interests" determination).
Although the parties may sign an agreement regarding the attorney's fee,
the claimant's attorney must still file a proper fee application in compliance
with 20 C.F.R. § 702.132. Ballard, 12 BRBS 966.
The presiding officer must decide whether the attorney's fee derived under such an agreement is reasonable,
Jaworski, 13 BRBS 727, and if the amount of the attorney's fee requested is substantially reduced, a
sufficient explanation for the reduction must be provided. Enright, 13 BRBS 573.
If the parties dispute what services the attorney's fee encompasses (before the ALJ alone, or before
both the Board and the judge), the Board has remanded for a factual determination. SeeCarpenter
v. Lockheed Shipbuilding & Constr. Co., 14 BRBS 382 (1981); Ware v. Int'l Great Lakes Shipping Co.,
13 BRBS 535 (1981).
Additionally, although the settlement attorney's fee may encompass services rendered at different
levels, the district director still has the authority to review and approve the attorney's fee. Gjertson
v. Pacific Architects & Eng'rs, Inc., 14 BRBS 885 (1981).
The Board has affirmed a judge's rejection of an agreement that the claimant was to be liable for
the attorney's fee in consideration of employer's stipulations where no other consideration was provided
by employer, the evidence overwhelmingly supported liability, and the judge stated he would not
automatically accept the stipulations. Stokes v. Jacksonville Shipyards, Inc., 18 BRBS 237 (1986).
28.9.1 Interest
Interest is not assessed on attorney's fee awards. Boland
Marine & Mfg. Co. v. Rihner, 41 F.3d
997, 29 BRBS 43 (CRT) (5th Cir. 1995) (Interest is not available on attorney's fee awards.); Hobbs v.
Director, OWCP, 820 F.2d 1528 (9th Cir. 1987); Fisher v. Todd Shipyards Corp., 21 BRBS 323
(1988); Ping v. Brady-Hamilton Stevedore Co., 21 BRBS 223 (1988); Blake v. Bethlehem Steel Corp.,
21 BRBS 49 (1988) (Board held that since attorney's fees are not compensation there is no authority under
the LHWCA for awarding interest); Battle v. A.J. Ellis Constr. Co., 16 BRBS 329 (1984). ButseeCox
v. Brady-Hamilton Stevedore Co., 25 BRBS 203 (1991), where the Board
allowed an hourly rate greater than that in effect at the time the attorney
rendered services to compensate for the "unusually protracted
course of litigation." Additionally, in the case of Guidry v. Booker Drilling Co., 901 F.2d 485, 23 BRBS
82 (CRT) (5th Cir. 1990) the court found that interest was owed on an unpaid attorney fee in an
enforcement proceeding. The court found that counsel was entitled to pre-and post- judgment interest
noting that interest provides an incentive for attorneys to represent longshoremen because they will receive
the full value of the fees to which they are entitled under the LHWCA.
28.10 APPEALS OF FEE AWARDS
28.10.1 Standard of Review
The amount of a fee award is discretionary and may be set aside only if the challenging party shows
the award is arbitrary, capricious, an abuse of discretion, or not in accordance with the law. Offshore Food
Serv., Inc. v. Benefits Review Bd., 524 F.2d 967 (5th Cir. 1975); Rogers v. Ingalls Shipbuilding, 28
BRBS 89 (1993); Devine v. Atlantic Container Lines, 23 BRBS 280 (1990); Picinich v. Lockheed
Shipbuilding, 23 BRBS 128 (1989); Maddon v. Western Asbestos Co., 23 BRBS 55 (1989); Hite v.
Dresser Guiberson Pumping, 22 BRBS 87 (1989); Ping v. Brady-Hamilton Stevedore Co., 21 BRBS 223
(1988); Powers v. General Dynamics Corp., 20 BRBS 119 (1987); Stowars v. Bethlehem Steel Corp.,
19 BRBS 134 (1986).
In Marcum v. Director, OWCP, 12 BRBS 355, 358 (1980), a black lung case, the Board held
that abuse of discretion must be found in cases where improper standards or procedure have been applied
and in cases where there is a clearly erroneous finding of fact.
The Board has affirmed fee reductions where fully explained and reasonable. Gulley v. Ingalls
Shipbuilding, Inc., 22 BRBS 262 (1989); Fairley v. Ingalls Shipbuilding, Inc., 22 BRBS 184 (1989). SeeDavenport v. Apex Decorating Co., Inc., 18 BRBS 194 (1986); Berkstresser v. Washington Metro. Area
Transit Auth., 16 BRBS 231 (1984).
Burdens
Pursuant to 20 C.F.R. § 702.132(a), any counsel seeking an attorney's fee
has the burden to produce a fee petition which is supported by a complete statement
of the extent and character of the
necessary work done. Parks v. Newport
News Shipbuilding & Dry Dock Co., 32 BRBS 90(1998).
The party challenging a fee award bears the burden of showing that the award is unreasonable, i.e.,
arbitrary, capricious, or an abuse of discretion. Corcoran v. Preferred Stone Setting, 12 BRBS 201
(1980); Branda v. Universal Maritime Serv. Corp., 7 BRBS 546 (1978); McCue v. International Terminal
Operating Co., 4 BRBS 235 (1976). SeealsoDoty v. Farmers Export Co., 12 BRBS 785 (1980) (award
is not per se unreasonable where judge awards all attorneys in consolidated cases the same fee).
Where employer makes general allegations that a fee is excessive or unreasonable, without
challenging specific findings or providing support for the allegation, it fails to meet the burden of proving that
the fee is unreasonable. Maddon v. Western Asbestos Co., 23 BRBS 55 (1989); Forlong
v. American Sec. & Trust Co., 21 BRBS 155 (1988); Mijangos v. Avondale Shipyards, Inc., 19 BRBS 15 (1986),
rev'donothergrounds, 948 F.2d 941 (5th Cir. 1991). SeealsoLe Batard v. Ingalls Shipbuilding Div.,
Litton Sys., 10 BRBS 317 (1979) (employer's mere assertion that rate is not a customary local rate is
insufficient).
Similarly, the claimant does not show an award is inadequate by arguing that a greater fee is due
because of results obtained or otherwise showing the ALJ's reason for a reduction are unsupported. SeeLopez v. Atlantic Container Line, Ltd., 6 BRBS 458 (1977); Weber v. General Dynamics Corp., 5 BRBS
112 (1976). SeealsoJaqua v. Pro-Football, Inc., 12 BRBS 572 (1980) (claimant met his burden where
judge's specific findings did not support his reductions).
Generally, if the Board finds the judge's fee award was erroneous, it will vacate and remand the
award for reconsideration or sufficient explanation. Beacham
v. Atlantic & Gulf Stevedores, Inc., 7 BRBS
940 (1978). The Board has, however, occasionally modified the ALJ's award instead of remanding the
case. Tornabene v. Marine Repair Serv., Inc., 12 BRBS 532 (1980); Freer v. Duncanson-Harrelson Co.,
9 BRBS 888 (1979), aff'dinpart, rev'dinpartonothergroundssubnom. Duncanson-Harrelson Co. v.
Director, OWCP, 686 F.2d 1336 (9th Cir. 1982), vacatedonothergrounds, 462 U.S. 1101 (1983),
decisiononremand, 713 F.2d 462 (9th Cir. 1983); De Felice v. Pittston Stevedoring Corp., 8 BRBS 206
(1978).
The courts have questioned the Board's authority to modify a fee award and, in a case arising under
the Federal Mine Safety and Health Act, the Third Circuit found that the Board exceeded its authority
when it modified a judge's fee award since the record did not contain sufficient findings by the judge
concerning the factors he relied upon in making the award. Director, OWCP v. U.S. Steel Corp., 606
F.2d 53 (3d Cir. 1979).
In Hilyer v. Morrison-Knudsen Construction Co., 670 F.2d 208 (D.C. Cir. 1981), rev'donothergroundssubnom. Morrison-Knudsen Construction Co. v Director, OWCP, 461 U.S. 624 (1983),
however, the court held that the Board has the authority to modify a fee award where the determination
of the fee is based solely on the record and the complete record is before the Board. SeealsoPeterson
v. Washington Metro. Area Transit Auth., 13 BRBS 891 (1981) (Board finds remand is unnecessary in
the interest of judicial economy when Board is presented with a full factual record in the case).
If the ALJ fails to address a fee application for services rendered before him, the Board will remand
to the judge to make a determination on the fee request. Ramos v. Universal Dredging Corp., 15 BRBS
140 (1982); Longo v. Universal Terminal & Stevedoring
Corp., Inc., 2 BRBS 357 (1975).
28.10.2 Timely Appeal/Finality
Board review of a fee award must be sought within 30 days after the award. SeeHawkins v.
Golden Commissary, 8 BRBS 664 (1978); 33 U.S.C. § 921(a); 20 C.F.R. § 802.205.
If a motion for review is not filed timely, the Board will grant a motion to
dismiss. Beavers v. Lockheed Shipbuilding & Constr.
Co., 1 BRBS 490 (1975).
If a claim is appealed timely pursuant to Section 21(a), the fee award is
not final. A fee award is not a "compensation order" and, therefore, does not
become effective until all appeals are exhausted. Wells
v. Int'l Great Lakes Shipping Co., 693 F.2d 663 (7th Cir. 1982); Spinner v. Safeway Stores, Inc., 18
BRBS 155 (1986); Williams v. Halter Marine Service, Inc., 19 BRBS 248, 253 (1987); Jenkins v. Federal
Marine Terminal, 14 BRBS 380 (1981).
[ED. NOTE: The law is well established that an award of attorney's fees and costs is not
enforceable, and therefore not collectible, until all appeals are exhausted. Williams v. Halter Marine
Service, Inc., 19 BRBS 248, 253 (1987). However, the ALJ can proceed in one of two ways. The
judge can either postpone adjudicating all attorney fee related issues pending the outcome of the
appeal of the case-in-chief, or the ALJ can proceed to adjudicate these issues but hold the awarding
of an actual attorney fee in abeyance until the outcome of the appeal. The reader is cautioned that,
no matter which method the ALJ chooses the party should not unilaterally ignore an attorney fee
related order (i.e., order to file an attorney fee request or brief the fee request, or brief the
opposition to the fee request) simply because the case-in-chief has been appealed. The party that
does so, does so at his or her own peril.]
Fee awards are not subject to enforcement under Section 18 during pendency of an appeal. Wells,
693 F.2d 663; Williams v. Halter Marine Serv., Inc., 19 BRBS 248 (1987) (citing Bruce v. Atlantic
Marine, Inc., 12 BRBS 65 (1980)); Jenkins, 14 BRBS 380. Therefore, although the ALJ may award fees
for a claim that has been appealed, such fees need not be paid until the compensation order becomes
final, and no stay of payment of the fees is necessary. Jenkins, 14 BRBS 380; Bruce v. Atlantic Marine,
Inc., 12 BRBS 65 (1980), aff'd, 661 F.2d 898 (5th Cir. 1981).
Although the ALJ has jurisdiction to grant an unenforceable attorney's fee for purposes of
administrative convenience while a case is on appeal, the exercise of such jurisdiction is discretionary.
Bruce v. Atlantic Marine, 12 BRBS 65 (1980); Norat
v. Universal Terminal & Stevedoring Corp., 9
BRBS 875 (1979); Kilsby v. Diamond M Drilling Co., 8 BRBS 473 (1978). Therefore, it is within the
administrative law judge's discretion to determine that a fee petition received while a case is on appeal is
premature. Section 28 manifests a Congressional intent to assess attorney fee liability on an employer only
when the claimant is ultimately successful. SeeAlyeska Pipeline Service Co. v. Wilderness Soc'y, 421
U.S. 240, 262 (1975); Hole v. Miami Shipyards Corp., 640 F.2d 769 (5th Cir. 1981).
As attorney's fees are not "compensation," Section 22 does not apply and
fee awards may not be modified. Greenhouse v. Ingalls Shipbuilding, Inc., 31 BRBS 41 (1997); Fortier v. Bath Iron Works
Corp., 15 BRBS 261 (1982).
Note, however, that in Vonthronsohnhaus v. Ingalls Shipbuilding, Inc., 24 BRBS 154 (1990),
although the Board remanded the case for consideration of the issue of suitable alternative employment,
it also held that the judge's prior award of fees was due and payable. The Board deemed the fee award
final in this case because employer did not challenge the claimant's entitlement to benefits on appeal, and
the Board found that the claimant would at least be entitled to permanent partial disability exceeding the
employer's voluntary payments. Id.
28.10.3 Direct Appeal
Since assessment of an attorney's fee by the district director is a discretionary act, review of a fee
award, in general, is properly sought by filing a notice of appeal with the Board. The judge has no
discretion to review the adequacy of a fee award approved or awarded by the district director for services
performed at the Director's level. Mazzella v. United Terminals, 8 BRBS 755, reaff'donrecon., 9 BRBS
191 (1978); Ellis v. Blake Constr. Co., 8 BRBS 650 (1978); Hawkins v. Golden Commissary, 8 BRBS
664 (1978); Campbell v. Blake Constr. Co., 8 BRBS 667 (1978). Cf.Pratt v. Honolulu Shipyard, Inc.,
23 BRBS 297(ALJ)(1989).
Unless an issue of fact is presented, attorney's fee awards by the district director, regarding both
amounts and liability should be directly appealed from the district director to the Board. Jarrell
v. Newport News Shipbuilding & Dry Dock Co., 19 BRBS 216 (1987).
When the appeal regarding the fee involves a legal issue, the proper route for the appeal is directly
to the Board. Taylor v. Cactus Int'l., Inc., 13 BRBS 458 (1981); Tupper v. Teledyne Movable Offshore,
13 BRBS 614 (1981); Lonergan v. Ira
S. Bushey & Sons, Inc., 11 BRBS 345 (1979).
Where the appeal of a fee award involves a factual issue, however, the case must be referred to
an ALJ. Mazzella v. United Terminals, 8 BRBS 755 (1978). Initially, the Board held that liability for
attorney fees involves a question of fact and, consequently, that where liability for a fee is not resolved,
resort must be had to the formal hearing procedure. Jarrell
v. Newport News Shipbuilding & Dry Dock
Co., 10 BRBS 423 (1979). SeeBaker v. Todd Shipyards Corp., 12 BRBS 309 (1980).
In Glenn v. Tampa Ship Repair & Dry
Dock, 18 BRBS 205 (1986), however, the Board held that
direct appeal to the Board of issues involving attorney fee liability is appropriate where no factual issues
are disputed. The Board overruled Jarrell, as well as Taylor, to the extent that those decisions are
inconsistent with this holding.
[ED. NOTE:Jarrell had indicated that the legal issue of whether or not a claimant or employer
is liable for fees must first be reviewed by an ALJ. In Glenn, the Board found that such an issue
should be appealed directly to the Board. Taylor had indicated that a controversy regarding
attorney's fee liability is a factual determination to be made by the ALJ. In Glenn, the Board found
the contrary, that is, that fee liability is generally a legal issue as it usually involves an application
of Section 28 to the uncontested circumstances of a case.]
In Healy Tibbitts Builders, Inc. v. Cabral, 201 F.3d 1090, 33 BRBS 209 (CRT)(9th Cir. 2000),
cert. denied, 121 S.Ct. 378 (2000), the Ninth Circuit determined that a party challenging an attorney's
fee award made by the district director does not have a right to a formal hearing before the OALJ when
there are no factual issues in dispute. According to the Ninth Circuit,
Section 19(c) "does not necessarily
require an evidentiary hearing before an ALJ on all contested issues" and Section 19(d) "does
not ipso facto confer an absolute right to a hearing before an ALJ on all contested
issues."
This determination is "at odds" with the Seventh Circuit's opinion in Pearce v. Director, OWCP,
647 F.2d 716 (7th Cir. 1981). The Pearce court
concluded that the LHWCA and its regulations made no distinction between requests
for hearings on claims that are "adjudicatory" in nature and those that are
"administrative" in nature. Therefore, the Pearce court
held that the district director has a duty to transfer disputes to the OALJ because
the Board has "no authority to consider or review the evidence that [has]
been gathered by the deputy commissioner" because the Board can only review a "hearing record" and
such a record can only be developed in an ALJ proceeding.
28.10.4 Requirements Regarding Objections Below
An employer must raise objections to an attorney's fee application or award in a timely fashion,
exhausting remedies at the hearing level and preserving issues for appeal. Monahan v. Portland
Stevedoring Co., 8 BRBS 653 (1978). Generally, if the employer does not object to the award of a fee
below, it cannot object to the fee on appeal. Sea-Land Servs., Inc. v. Director, OWCP, 685 F.2d 1121
(9th Cir. 1982); Gulley v. Ingalls Shipbuilding, Inc., 22 BRBS 262 (1989); Fairley v. Ingalls Shipbuilding,
Inc., 22 BRBS 184 (1989); Clophus v. Amoco Prod. Co., 21 BRBS 261 (1988). Moreover, if the
employer objects to the fee below based on one issue, but raises a new issue on appeal, the Board will not
consider the new issue. Corcoran v. Preferred Stone Setting, 12 BRBS 201 (1980).
The refusal to consider issues not raised below is limited, however, and does not extend to legal
issues arising after the judge's decision and order is issued.
Cases:
(1) The Board considered the director's objection to the assessment of a fee against
the Special Fund raised for the first time on appeal, where the judge made the assessment
in a supplementary order. Monaghan v. Portland Stevedoring Co., 11 BRBS 190 (1979).
(2) In Luna v. Todd Shipyards Corp., 12 BRBS 70 (1980), the Board considered the
issue concerning the propriety of awarding an attorney's fee contemporaneously with a
compensation award even though the issue was not raised below since the Board found
the issue did not arise until after the administrative law judge's decision was issued.
Although the duty to object is generally that of the employer, where the claimant fails to object to
the judge's award of fees and costs of the first administrative hearing, but raised an objection after the
ALJ's decision on remand, the Board refused to consider the objection since it was raised untimely.
Morgan v. Marine Corps Exch., 14 BRBS 784 (1982).