B & G Min. v. Office of Workers' Comp. Programs

• Decision Date: 16 April 2008
• Docket Number: No. 07-3162.,07-3162.
• Citation: 522 F.3d 657
• Parties: 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.
• Court: U.S. Court of Appeals — Sixth Circuit

522 F.3d 657

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.

No. 07-3162.

United States Court of Appeals, Sixth Circuit.

Argued: March 13, 2008.

Decided and Filed: April 16, 2008.

ARGUED:

Mark E. Solomons, Greenberg Traurig LLP, Washington, D.C., for Petitioners. Miller Kent Carter, Miller Kent Carter & Michael Lucas PLLC, Pikeville, Kentucky, for Respondents.

ON BRIEF:

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.^*

OPINION

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.

I

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.

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.

II

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 reasonable time expended on claimant's behalf.

C. The Lodestar Method of Calculating Fees

The first issue to resolve is whether the lodestar method of calculating fees should apply to black-lung benefits cases. The lodestar method is deceptively simple: the fee amount equals "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Claimant's attorney argues that § 725.366(b) provides the necessary guidance for adjudicators to fashion appropriate awards and that applying the lodestar method would be an unwarranted deviation from the regulation that would provide little in terms of specific criteria to consider.

This court has not directly addressed whether the lodestar method is applicable to black-lung benefits cases. Although there is no binding precedent, reason and the weight of authority confirms that the lodestar method is the appropriate starting point in these cases.

In general, similar statutory language should beget similar judicial treatment. Section 28 of the Longshore Act provides that "a reasonable attorney's fee" will be paid to a prevailing claimant's attorney. 33 U.S.C. § 928(a). That phrase is comparable to those found in other federal fee-shifting statutes, including the Solid Waste Disposal Act and the Clean Water Act,¹ both of which were at issue in City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). The Supreme Court directed in Dague that its "case law construing what is a `reasonable' fee applies uniformly to all" of the similar fee-shifting statutes. It went on to explain:

The "lodestar" figure has, as its name suggests, become the guiding light of our fee-shifting jurisprudence. We have established a "strong presumption" that the lodestar represents the "reasonable" fee, [Pennsylvania v. Delaware Valley Citizens' Council for Clean Air,] 478 U.S. [546], 565, 106 S.Ct. [3088], 3098, 92 L.Ed.2d 439 [(1986) ("Delaware Valley I")], and have placed upon the fee applicant who seeks more than that the burden of showing that "such an adjustment is necessary to the determination of a reasonable fee." Blum v. Stenson, 465 U.S. 886, 898, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984) (emphasis added).

Id. at 562, 112 S.Ct. 2638. In line with Dague and an earlier decision, Hensley v. Eckerhart, a panel of this court explained that "[b]ecause the same standards are generally applicable in all cases in which Congress has authorized an award of fees to a prevailing party, this [c]ourt relies on precedents involving attorneys fees without regard to whether they involved Title VI or some other federal statute." Johnson v. City of Clarksville, 256 Fed.Appx. 782, 783 (6th Cir.2007) (unpublished) (internal citation and quotation marks omitted).

Recent decisions of this and other circuit courts, while not binding precedent, do weigh in favor of using the lodestar method in black-lung benefits cases. In Harmon v. McGinnis, Inc., No. 07-3073, 2008 WL 344707, at *1 (6th Cir. Feb.7, 2008) (unpublished), a panel of this court relied on the lodestar method as the "starting point" in determining a reasonable attorneys' fee in a Longshore Act case. Similarly, the Ninth Circuit has approved of a district court's application of the lodestar method in a Longshore Act case. Tahara v. Matson Terminals, Inc., 511 F.3d 950, 955 (9th Cir.2007) ("Use of the `lodestar method' to calculate attorney's fees under a federal fee-shifting statute is proper." (citations omitted)). In trying to distinguish these and other similar...