376 F.3d 245 (4th Cir. 2004), 03-1480, Newport News Shipbuilding and Dry Dock Co. v. Brown

Docket Nº:03-1480.
Citation:376 F.3d 245
Party Name:NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner, v. Beverly Anita BROWN; Director, Office of Workers' Compensation Promams, United States Department of Labor, Respondents.
Case Date:July 19, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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376 F.3d 245 (4th Cir. 2004)

NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner,

v.

Beverly Anita BROWN; Director, Office of Workers' Compensation Promams, United States Department of Labor, Respondents.

No. 03-1480.

United States Court of Appeals, Fourth Circuit

July 19, 2004

Argued: May 6, 2004.

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[Copyrighted Material Omitted]

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ARGUED:

Christopher Roland Hedrick, Mason, Mason, Walker & Hedrick, P.C., Newport News, Virginia, for Petitioner. Gregory Edward Camden, Montagna, Breit, Klein & Camden, L.L.P., Norfolk, Virginia, for Respondent Brown; Joshua Thomas Gillelan, II, Office of the Solicitor, United States Department of Labor, Washington, D.C., for Director, Office of Workers' Compensation Programs.

ON BRIEF:

Howard M. Radzely, Solicitor of Labor, Donald S. Shire, Associate Solicitor, Mark A. Reinhalter, for Longshore, Washington, D.C., for Director, Office of Workers' Compensation Programs.

Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.

Petition for fees granted by published opinion. Judge Michael wrote the opinion, in which Judge Niemeyer and Judge Gregory joined.

OPINION

MICHAEL, Circuit Judge:

We have before us an employee's petition for attorney's fees under § 28 of the Longshore and Harbor Workers Compensation Act (LHWCA), 33 U.S.C. § 928. Section 28 allows reasonable attorney's fees to an employee who successfully prosecutes a claim for compensation. The main question today is whether an award to an employee under § 14(f) for her employer's late payment of compensation is also compensation. If it is, the fee provision is triggered. We hold that an award for late payment under § 14(f) is compensation, and we grant the employee's petition for attorney's fees incurred in defending the § 14(f) award in this court.

I.

Beverly A. Brown and her employer, Newport News Shipbuilding and Dry Dock Company (Newport News), settled her workers' compensation claim for a lump sum of $17,500, and the district director entered an order approving the compensation award on December 18, 2000. See 33 U.S.C. § 908(i). Newport News paid Brown her award eighteen days later, on January 5, 2001. Thereafter, Brown asserted an additional claim under § 14(f), which requires an employer to pay "an amount equal to 20 per centum" of any compensation "payable under the terms of an award [that] is not paid within ten days after it becomes due." Id. § 914(f). Newport News opposed Brown's additional claim, arguing that it had made a good faith attempt to deliver the compensation check to Brown in a timely manner, but she had intentionally evaded delivery. The District Director of the U.S. Department of Labor's Office of Workers' Compensation Programs initially denied the claim for late payment. Brown then requested a hearing before an administrative law judge, and the ALJ, after over-seeing discovery, remanded the case to the district director. After reviewing the evidence gathered during discovery, the district director determined that Newport News had not paid the settlement within ten days as required by § 14(f); Brown was therefore awarded an additional $3500. Newport News appealed the district director's order to the Benefits Review Board (the Board), which dismissed the appeal on March 21, 2003. The company then petitioned this court for review of the Board's March 21, 2003, dismissal order. On June 19, 2003, before briefs were filed, we granted Newport News's unopposed motion to withdraw its petition for review. The company then paid Brown the § 14(f) award on June 23, 2003.

On July 7, 2003, Brown filed a petition to recover $2068.80 in attorney's fees for

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work performed by her counsel in opposing the petition for review filed in this court by Newport News to set aside the $3500 late payment award. Newport News objected to the fee petition, arguing that the LHWCA's fee-shifting provisions, see id. § 928, cannot be used to recover legal fees incurred in obtaining a § 14(f) late payment award. Newport News also objected to the size of the requested fee. The parties filed supplemental briefs on the fee issue, and we then heard oral argument.

II.

Brown argues that because her award for late payment under § 14(f) is compensation under the relevant provisions of the LHWCA, she is entitled to attorney's fees for obtaining the award. Newport News disagrees, arguing that the § 14(f) payment is a penalty, which prevents Brown from shifting her fees to the company. We start...

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