Childers v. Drummond Company, Inc.
| Decision Date | 20 June 2002 |
| Docket Number | BRB 01-0585 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | RITA M. CHILDERS (o/b/o and Widow of JAMES R. CHILDERS Claimant-Petitioner v. DRUMMOND COMPANY, INCORPORATED Employer-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
Appeal of the Proposed Order Supplemental Award Fee for Legal Services of Harry Skidmore, District Director, United States Department of Labor.
Michael E. Bevers (Nakamura, Quinn & Walls LLP), Birmingham Alabama, for claimant.
Laura A. Woodruff (Maynard, Cooper & Gale, P.C.), Birmingham Alabama, for employer.
Rita Roppolo (Eugene Scalia, Solicitor of Labor; Donald S. Shire Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor; Richard A. Seid and Michael J. Rutledge, Counsel for Administrative Litigation and Legal Advice), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH, McGRANERY, HALL and GABAUER, Administrative Appeals Judges.
EN BANC
DECISION AND ORDER
Claimant appeals the Proposed Order Supplemental Award Fee for Legal Services of District Director Harry Skidmore awarding attorney fees on a miner's claim and a survivor's claim filed pursuant to the provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended 30 U.S.C. §901 et seq. (the Act).[1]
Claimant's counsel filed a fee petition following the successful prosecution of the miner's claim and the survivor's claim for benefits under the Act.[2] In his most recent, relevant fee petition, at issue herein, claimant's counsel requested $2,052.35 for services performed before the district director in the miner's claim, plus expenses, and $880 for services performed before the district director in the survivor's claim. The district director found that services performed by claimant's counsel on certain dates were of equal importance to the development of evidence in the miner's and the survivor's claims and, therefore, divided the time spent on those dates, with half being considered services performed in the miner's claim and half being considered services performed in the survivor's claim.
In regard to the miner's claim, the district director found claimant's counsel entitled to a fee of $539.85 for services performed exclusively in the miner's claim, based on 3.25 hours of legal services at a reasonable hourly rate of $160.00, .25 hours of services performed by a legal assistant at a reasonable hourly rate of $65.00, plus $3.60 in expenses. The district director found claimant's counsel entitled to an additional fee of $756.25 for services performed in the miner's claim, based on the half of the services which the district director determined should be considered as services performed in the miner's claim, based on 4.625 hours of legal services at a reasonable hourly rate of $160.00 and .25 hours of services performed by a legal assistant at a reasonable hourly rate of $65.00. Thus, the district director found claimant's counsel entitled to a total fee of $1296.10 for services performed in the miner's claim. Because all of the services performed in the miner's claim were rendered after the miner's claim was initially denied on August 21, 1998, see Director's Exhibit 18, the district director found that employer was liable for all of the services performed in the miner's claim.
Regarding services performed in the survivor's claim, the district director determined that as claimant was initially awarded benefits in the survivor's claim, see Director's Exhibit 34, employer was liable only for services performed in the survivor's claim following employer's subsequent controversion of the award of benefits on April 30, 1999, see Director's Exhibit 38. Thus, the district director found claimant's counsel entitled to a fee of $400 for services performed exclusively in the survivor's claim subsequent to employer's controversion of the award of benefits on April 30, 1999, based on 2.50 hours of legal services at a reasonable hourly rate of $160.00, for which employer was liable. The district director found claimant's counsel entitled to a fee of $480 for services performed exclusively in the survivor's claim prior to employer's controversion of the award of benefits on April 30, 1999, based on 3 hours of legal services at a reasonable hourly rate of $160.00, for which claimant was liable. Moreover, the district director found claimant's counsel entitled to an additional fee of $756.25 for services performed in the survivor's claim, based on the half of the services which the district director determined should be considered as services performed in the survivor's claim, which were also performed prior to employer's controversion of the award of benefits on April 30, 1999, based on 4.625 hours of legal services at a reasonable hourly rate of $160.00 and .25 hours of services performed by a legal assistant at a reasonable hourly rate of $65.00. Consequently, the district director found employer liable for a total of $400 of claimant's counsel fee for services performed exclusively in the survivor's claim subsequent to employer's controversion of the award of benefits on April 30, 1999, and found claimant liable for the remaining $1236.25 of claimant's counsel fee for services performed in the survivor's claim prior to employer's controversion.
On appeal, claimant contends that the district director erred in holding that employer was not liable for attorney fees charged for services performed before the district director in the survivor's claim, that were incurred prior to employer's controversion of claimant's entitlement to benefits in the survivor's claim. Employer and the Director, Office of Workers' Compensation Programs (the Director), as a party-in-interest, respond, urging that the district director's Proposed Order Supplemental Award Fee for Legal Services be affirmed.
The award of an attorney's fee is discretionary and will be upheld on appeal unless shown by the challenging party to be arbitrary, capricious, an abuse of discretion or not in accordance with law, see Abbott v. Director, OWCP, 13 BLR 1-15 (1989), citing Marcum v. Director, OWCP, 2 BLR 1-894 (1980).[3]
Claimant contends that the district director erred in finding claimant liable for $1236.25 of claimant's counsel fee for the services performed by claimant's counsel in the survivor's claim prior to employer's controversion in the survivor's claim.[4] Specifically, claimant contends that because the Board has held that an employer is liable for attorney fees incurred prior to controversion of liability, see Jackson v. Jewell Ridge Coal Corp., 21 BLR 1-28 (1997) (en banc) (Smith and Dolder, JJ., dissenting); see also Liggett v. Crescent City Marine Ways & Drydock, Inc., 31 BRBS 135 (1997) (en banc) (Smith & Dolder, JJ., dissenting) (), the district director erred in finding claimant liable for the services performed by claimant's counsel in the survivor's claim prior to employer's controversion in the survivor's claim.
Under the "American Rule," a court generally will not award attorney fees absent "explicit statutory authority," see Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 262 (1975); see also Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Services, 532 U.S. 598, 602, 608 (2001); Key Tronic Corp. v. United States, 511 U.S. 809, 814, 819 (1994). Moreover, Congress has not "extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted," see Alyeska, 421 U.S. at 260; see also Buckhannon, 532 U.S. at 610.
Attorney fees are awardable under the Act based on the language of Section 28(a) of the LHWCA, 33 U.S.C. §928(a), as incorporated into the Act by 30 U.S.C. §932(a).[5] In the instant miner's and survivor's claims filed prior to January 19, 2001, Section 28(a) is implemented by 20 C.F.R. §725.367 (2000), see 20 C.F.R. §725.2(c); Director's Exhibits 1, 26.[6] In Jackson, supra, the majority of the Board at that time, sitting en banc, held that Section 28(a) requires employer, once properly identified as the responsible operator, "thereafter" to be responsible for all "reasonable fee(s)" incurred by claimant throughout the litigation of the claim, relying on the holdings in Hensley v. Eckerhart, 461 U.S. 424 (1983) and City of Burlington v. Dague, 505 U.S. 557(1992), which the majority held were applicable to the interpretation of Section 28(a), as the Act is a federal fee-shifting statute.
However the Board's decision in Jackson was appealed to the United States Court of Appeals for the Fourth Circuit, where the case arose. See Clinchfield Coal Co. v. Harris, 149 F.3d 307, 21 BLR 2-479 (4th Cir. 1998) (Murnaghan, J., concurring), aff'g on other grd's, Jackson v. Jewell Ridge Coal Corp., 21 BLR 1-28 (1997) (en banc) (Smith and Dolder, JJ., dissenting). In Harris, the Fourth Circuit rejected as misplaced the Board's rationale, relying on the holdings in Hensley and Dague interpreting what was a "reasonable" fee in federal fee-shifting statutes, as it was inapposite to the interpretation of the word "thereafter" in Section 28(a), but nevertheless affirmed the result of the Board's decision awarding pre-controversion attorney fees in that case based on an alternative interpretation of Section 725.367(a) (2000) offered by the Director in that case, id. The Fourth Circuit deferred to the Director's ...
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