522 F.3d 657 (6th Cir. 2008), 07-3162, B & G Min., Inc. v. Director, Office of Workers' Compensation Programs

Docket Nº:07-3162.
Citation:522 F.3d 657
Party Name:B & G MINING, INC. and Old Republic Insurance Company, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, and Danny Bentley, Respondents.
Case Date:April 16, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 657

522 F.3d 657 (6th Cir. 2008)

B & G MINING, INC. and Old Republic Insurance Company, Petitioners,


DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, and Danny Bentley, Respondents.

No. 07-3162.

United States Court of Appeals, Sixth Circuit.

April 16, 2008

Argued: March 13, 2008.

On Petition for Review of a Final Order of the Benefits Review Board. No. 06-0304 BLA.

Page 658

[Copyrighted Material Omitted]

Page 659

[Copyrighted Material Omitted]

Page 660


Mark E. Solomons, Greenberg Traurig LLP, Washington, D.C., for Petitioners.

Miller Kent Carter, Miller Kent Carter & Michael Lucas PLLC, Pikeville, Kentucky, for Respondents.


Mark E. Solomons, Laura Metcoff Klaus, Greenberg Traurig LLP, Washington, D.C., for Petitioners.

Miller Kent Carter, Miller Kent Carter & Michael Lucas PLLC, Pikeville, Kentucky, William Lawrence Roberts, William Lawrence Roberts, P.S.C., Pikeville, Kentucky, for Respondents.

Before: CLAY and McKEAGUE, Circuit Judges; BOYKO, District Judge. [*]


McKEAGUE, Circuit Judge.

The claimant in this black-lung benefits case, Danny Bentley, received an award of benefits against his employer, B&G Mining, Inc., and the company's insurer, Old Republic Insurance Company (collectively, "B&G" or the "company"). At each level of review in the Department of Labor, the adjudicators awarded fees to Bentley's attorney under the fee-shifting provision of the Black Lung Benefits Act, 30 U.S.C. § 932(a). On petition for review before this court, B&G argues that the adjudicators abused their discretion in the rates they used and the hours they approved.

For the reasons set forth below, we affirm the fee awards.


Bentley filed a claim for federal black-lung benefits with the Department of Labor in August 2001. In May 2005, the Administrative Law Judge (the "ALJ") awarded him benefits. Although B&G initially appealed the award to the Benefits Review Board (the "BRB"), the company voluntarily dismissed the appeal and accepted liability for the award of benefits. Neither party raises any issue regarding the benefits award.

Bentley's attorney filed three petitions for fees totaling $23,688.00. This amount included work he performed before the District Director, the ALJ, and the BRB. In each petition, he asked for a rate of $250/hour. He submitted a statement in support of each petition. The statements were identical and listed his twenty-five years of experience in representing claimants with occupational diseases; his expertise in the field; his average fee of $250/hour for workers' compensation and social security disability benefits cases; the relatively high risk of loss in black-lung benefits cases; and the relatively low number of attorneys who practice in the field in the Eastern District of Kentucky.

The District Director reduced the fee to $200/hour for work performed before his office. He explained that the work was routine and that the rate was comparable to rates charged by other highly qualified, experienced attorneys within the same geographical location. The District Director also subtracted hours for work performed outside the time the claim was pending and for work spent on a prior claim.

On a separate petition, the ALJ approved a rate of $250/hour after noting that rates of $225/hour and $250/hour had been used in prior cases and citing the attorney's experience and expertise in black-lung benefits cases. As to the hours billed, the ALJ reduced the requested amount by seven hours for time spent on matters not before the ALJ and for time involving some routine correspondence.

Page 661

On appeal, the BRB found no abuse of discretion and affirmed the District Director's and ALJ's awards. The BRB also considered the petition for fees for work performed before the board. It reduced the rate to $225/hour due to the nature and complexity of the case. It also subtracted six hours from the claimed 14.25 hours for duplicative work and work unrelated to the appeal before the board.

In total, claimant's attorney was awarded fees of $16,618.75 for 69.25 hours of work.


On appeal, B&G contends that the District Director, the ALJ, and the BRB failed to apply the correct legal standard in determining the appropriate hourly rate. The company also argues that some of the hours awarded were excessive and duplicative. The company's arguments are considered in turn.

A. Standard of Review

We review an administrative adjudicator's award of attorneys' fees for abuse of discretion. Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 616 (6th Cir. 2007) (citing Geier v. Sundquist, 372 F.3d 784, 789 (6th Cir. 2004)); Zeigler Coal Co. v. Director, OWCP, 326 F.3d 894, 902 (7th Cir. 2003) ("[W]e give great deference to the views and conclusions of the ALJ."). " 'Not only is the [adjudicator] in a much better position than the appellate court to make this determination, but neither the stakes nor the interest in uniform determination are so great as to justify microscopic appellate scrutiny.' " Zeigler Coal, 326 F.3d at 902 (quoting Ustrak v. Fairman, 851 F.2d 983, 987 (7th Cir. 1988)). " 'An abuse of discretion exists when the [adjudicator] applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.' " Gonter, 510 F.3d at 616 (quoting First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 647 (6th Cir. 1993)).

B. Attorneys' Fees Under the Black Lung Benefits Act

Section 28 of the Longshore and Harbor Workers' Compensation Act (the "Longshore Act"), 33 U.S.C. § 928, incorporated into the Black Lung Benefits Act, 30 U.S.C. § 932(a), provides for the award of fees and costs to a successful claimant's attorney. The Department of Labor promulgated regulations covering, among other things, the factors to be considered in fixing the amount of award in black-lung benefits cases. Specifically, 20 C.F.R. § 725.366 provides in relevant part:

(b) Any fee . . . shall be reasonably commensurate with the necessary work done and shall take into account the quality of the representation, the qualifications of the representative, the complexity of the legal issues involved, the level of proceedings to which the claim was raised, the level at which the representative entered the proceedings, and any other information which may be relevant to the amount of fee requested.

The parties do not dispute that claimant's attorney was eligible to receive a fee award. Rather, they disagree on what constitutes a reasonable fee rate and...

To continue reading