643 F.2d 159 (3rd Cir. 1981), 80-1753, Director, Office of Workers' Compensation Programs v. Brodka

Docket Nº:80-1753.
Citation:643 F.2d 159
Party Name:DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, Petitioner, v. Albert BRODKA, Respondent.
Case Date:March 13, 1981
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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643 F.2d 159 (3rd Cir. 1981)

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United

States Department of Labor, Petitioner,

v.

Albert BRODKA, Respondent.

No. 80-1753.

United States Court of Appeals, Third Circuit

March 13, 1981

Submitted Nov. 6, 1980.

George Thompson, Hirsch, Weise & Tillman, Pittsburgh, Pa., for respondent.

Carin Ann Clauss, Sol. of Labor, Laurie M. Streeter, Associate Sol., Judith E. Wolf, Co-Counsel for Black Lung Benefits, Elaine Kaplan, U. S. Dept. of Labor, Washington, D. C., for the Director, Offc. of Workers' Compensation Programs.

Before ADAMS and SLOVITER, Circuit Judges, and BROTMAN, [*] District Judge.

OPINION

SLOVITER, Circuit Judge.

In this appeal, the Director, Office of Workers' Compensation Programs, asks us

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to determine whether the Benefits Review Board properly assessed a claimant's attorney's fees against the Black Lung Disability Trust Fund. 1 We need not reach the merits of this dispute because we find that the Board's order is not appealable and therefore dismiss the appeal.

On May 11, 1978 Albert Brodka filed a claim for disability benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-60 (1976 & Supp. III 1979). Thereafter, Brodka engaged George Thompson, an attorney, to represent him in this regard. 2 On September 4, 1979, pursuant to the requirements of 20 C.F.R. § 725.366(a) (1980), Brodka's attorney filed a fee petition for $736.60 in payment for his services. The requested fee was calculated on the basis of $100 per hour plus expenses. On September 19, 1979, the deputy commissioner issued an Award of Benefits. 3 In addition the deputy commissioner approved a legal fee for Brodka's attorney in the amount of $378.10 to be paid out of Brodka's benefits. This figure represented a reduction in the requested hourly fee from $100 to $50.

Brodka's attorney appealed the reduction in his fee to the Benefits Review Board pursuant to 33 U.S.C. § 921(b) (1976 & Supp. III 1979) and 20 C.F.R. §§ 725.366(e), 802.201(a) (1980). He argued that the Department of Labor had no regulatory, statutory, or constitutional authority to set fees between an attorney and his client. The Director, Office of Workers' Compensation Programs, in response, argued that the fee award should be vacated and remanded because of the attorney's alleged noncompliance with the regulations regarding fee petitions, 20 C.F.R. § 725.366(a) (1980), and because the inadequate explanation given by the deputy commissioner for the reduction of the attorney's hourly rate made it impossible for the Board to review the decision for abuse of discretion.

The Benefits Review Board held that there was constitutional, statutory and regulatory authority for the Department of Labor's procedures regarding attorney's fees; that the lack of rationale in the deputy commissioner's award of attorney's fees made review impossible and therefore made necessary a remand for a proper evaluation of the fee petition; and that a new fee petition should be submitted because the original fee petition did not comply with the regulations. Finally, reaching an issue not raised by the parties, the Board held that although there was no initial denial of benefits the attorney's fees should be assessed pursuant to 33 U.S.C. § 928 (1976) against the Black Lung Disability Trust Fund rather than be deducted from Brodka's benefits. 4 Accordingly, the Board vacated the Award of Benefits insofar as it approved $378.10 in attorney's fees and remanded the case to the deputy commissioner. 5 It is from the portion of the Board's order assessing attorney's fees against the Trust Fund that the Director appeals.

Before we can reach the merits we must determine whether we have subject matter

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jurisdiction to hear this appeal. Section 422(a) of the Black Lung Benefits Act, 30 U.S.C. § 932(a) (Supp. III 1979), incorporates selected provisions of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), as amended, 33 U.S.C. §§ 901-50 (1976 & Supp. III 1979). One of the provisions incorporated is section 21(c) of the LHWCA, 33 U.S.C. § 921(c) (1976), which provides that "(a)ny person adversely affected or aggrieved by a final order of the (Benefits Review) Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred ...." Id. (emphasis added). Therefore we must determine whether the Board's remand order is "final" within the meaning of § 921(c) even though the amount of attorney's fees...

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