George Hyman Const. Co. v. Brooks, No. 89-1553

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Before D.H. GINSBURG, SENTELLE, and HENDERSON; SENTELLE
• Citation: 963 F.2d 1532
• Parties: , 60 USLW 2759 The GEORGE HYMAN CONSTRUCTION COMPANY, Petitioner, v. James E. BROOKS, Respondent.
• Docket Number: No. 89-1553
• Decision Date: 15 May 1992

Page 1532

963 F.2d 1532 295 U.S.App.D.C. 365, 60 USLW 2759 The GEORGE HYMAN CONSTRUCTION COMPANY, Petitioner,
v.
James E. BROOKS, Respondent. No. 89-1553. United States Court of Appeals,
District of Columbia Circuit. Argued Oct. 28, 1991.
Decided May 15, 1992.

Stewart S. Manela, Vienna, Va., with whom Fred S. Sommer, Washington, D.C., was on the brief, for petitioner.

Peter J. Vangsnes, with whom James A. Mannino, Washington, D.C., was on the brief, for respondent. Inez Alfonzo-Lasso, Atty., Dept. of Labor, Washington, D.C., also entered an appearance, for respondent.

Before D.H. GINSBURG, SENTELLE, and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

The George Hyman Construction Company ("Hyman" or the "Company") seeks reversal of a Benefits Review Board (the "Board") award of $13,455.84 in attorney fees in connection with Mr. James E. Brooks's claim under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (1986) (the "Act"), as applied to the District of Columbia, 36 D.C.Code §§ 501, 502 (1973). ¹ Hyman argues that reversal is necessary because the Board failed to appreciate the teachings of the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). We agree that Hensley 's rationale applies to the Act, that the administrative law judge ("ALJ") misconstrued its requirements, and, consequently, that a reversal in part is warranted and a remand in part is needed.

I.

This case stems from an accident at a construction site over a decade ago. May 7, 1981 found Respondent Brooks, a Hyman employee, stripping plywood from a ceiling when a board fell on his large left toe. In subsequent workers' compensation hearings, Brooks advanced two theories as to why the toe injury rendered him totally and permanently incapable of returning to work and, thus, deserving of full compensation under § 908(a) of the Act. Under the first, Brooks claimed that the toe injury triggered a psychiatric illness apparently known as "conversion reaction hysteria." Under the second, he asserted that the toe injury caused recurring pain and numbness in his leg, hip, and back.

The ALJ rejected both of Brooks's total disability theories. Nonetheless, and on his own motion, the ALJ found Brooks deserving of a twenty percent permanent partial disability rating for his damaged left foot pursuant to § 908(c) of the Act; he subsequently awarded Brooks $11,968.73. We note that the Company had previously voluntarily

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[295 U.S.App.D.C. 368] paid Brooks compensation for a ten percent disability rating of the injured toe.

Merits decided, the ALJ turned to the question of whether Brooks ought to recoup his attorney fees and costs from Hyman. As is perhaps typical of our times, it is here that the real dispute began. The ALJ was presented with a bill from Brooks totalling approximately $24,000, roughly twice the size of actual benefits received by claimant. Hyman argued that fee recoveries under the Act should be limited to work done on successful claims; further, it contended that since claimant's counsel spent approximately one hundred percent of their time on the unsuccessful total disability claims, and it was the ALJ who raised the only successful issue, no fees should be awarded.

The ALJ rejected Hyman's argument, concluding instead that the §§ 908(a) and (c) claims were too "interrelated" to separate out in a claim-by-claim analysis such as Hyman suggested. The ALJ also dismissed a further Hyman suggestion that any award should be reduced to reflect the degree of success Brooks achieved in pursuing his claims. He stated that the "test for determining whether services are compensable is [not success, but] whether the attorney, at the time he performed the services, reasonably regarded the work as necessary to establish claimant's entitlement to benefits." Supplemental Decision and Order Awarding Attorney's Fees by Administrative Law Judge Frank F. Marcellino, Oct. 24, 1985, at 2-3 (citation omitted) (the "ALJ Fee Order ").

Appeals to the Board were taken by both parties. Brooks challenged the disposition of his § 908(a) total and permanent disability claims, while Hyman sought reversal of the fee award. The Board affirmed the ALJ's opinion in all respects. Claimant has now dropped his total, permanent disability claims and, consequently, the only issues before us revolve around the fee award.

II.

A.

In Hensley v. Eckerhart, the Supreme Court defined the conditions under which a plaintiff who prevails on only some of his claims may recover attorney fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. Specifically, it provided for a two-step inquiry focused on the following questions:

First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?

See Sierra Club v. EPA, 769 F.2d 796, 801 (D.C.Cir.1985), discussing Hensley, 461 U.S. at 434, 103 S.Ct. at 1940. Under the first inquiry, if the lawsuit presents unrelated claims--some successful and others not--a court must confine fee awards to work done on the successful claims. The reason: "a plaintiff should not be able to force his opponent to pay for the legal services involved in bringing groundless claims simply because those unsuccessful claims were brought in a lawsuit that included successful claims." Sierra Club, 769 F.2d at 801. Simply put, Hensley 's first prong requires a trial court or ALJ to conduct an examination of the hours counsel expended on each claim in the case, weeding out work done on unrelated unsuccessful claims from any award.

Under the second Hensley inquiry, the factfinder must then consider whether the success obtained on the remaining claims is proportional to the efforts expended by counsel. When an injured party obtains "excellent results, his attorney should recover a fully compensatory fee." 461 U.S. at 435, 103 S.Ct. at 1940. When a party achieves "only partial or limited success," however, then compensation for all of the "hours reasonably expended on the litigation as a whole ... may be an excessive amount." Id. at 436, 103 S.Ct. at 1941.

Though the Hensley analysis was crafted in the § 1988 context, it was explicitly designed by the Court to apply to all federal statutes limiting fee awards to " 'prevailing part[ies].' " See id., at 433 n.

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[295 U.S.App.D.C. 369] 7, 103 S.Ct. at 1939 n. 7. In response, lower courts have adopted its instructions in a wide array of statutory settings. See, e.g., Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 589 (9th Cir.1984) (Employee Retirement Income and Security Act); Citizens Council of Delaware County v. Brinegar, 741 F.2d 584, 595 (3d Cir.1984) (Equal Access to Justice Act); Rosebrough Monument Co. v. Memorial Park Cemetery Association, 736 F.2d 441, 446 (8th Cir.) (attorney fees provisions for antitrust plaintiffs), cert. denied, 469 U.S. 981, 105 S.Ct. 385, 83 L.Ed.2d 320 (1984); United Slate Workers Association, Local 307 v. G & M Roofing & Sheet Metal Co., 732 F.2d 495, 502 (6th Cir.1984) (Fair Labor Standards Act); Erkins v. Bryan, 598 F.Supp. 240, 245 (M.D.Ala.1984), aff'd, 785 F.2d 1538 (11th Cir.1986) (Labor-Management Reporting and Disclosure Act).

B.

The first issue now before us is whether the Hensley rationale applies to the Act as well. We hold that it does, and come to our conclusion impressed by the language and history of the Act and influenced by the authority of others who have reached this question before us. The Act provides in pertinent part that

if the compensation ... awarded [by the Board] is greater than the amount paid or tendered by the employer or carrier, a reasonable attorney's fee based solely upon the difference between the amount awarded and the amount tendered or paid shall be awarded....

33 U.S.C. § 928(b). ²

To be sure the Act does not, as claimant emphasizes, use the term "prevailing party" anywhere in § 928(b). However, it is a vain project to rely, as claimant does, on the absence of this particular verbiage to prove Hensley 's irrelevance. The thrust of the Hensley opinion is devoted not to the use of the words "prevailing party," but to the concept encompassed within those words. This Circuit has already held that the Hensley rationale applies to statutes not containing the "prevailing party" formulation, but requiring a degree of success as requisite to the award of counsel fees.

In Sierra Club, 769 F.2d at 796, we considered the fee recovery provision of the Clean Air Act which allows an award "whenever [a court] determines that such award is appropriate." 42 U.S.C. § 7607(f) (1982). On its face, the Clean Air Act is significantly less analogous to Hensley than the one we now address: far from bearing the "prevailing party" language, it does not expressly require any showing of success. Still, we held Hensley 's rationale applicable because caselaw developed under that statute did condition the receipt of fees upon a showing of some success on the merits. See Sierra Club, 769 F.2d at 799.

The present case is stronger for the application of Hensley than was Sierra Club. The Act before us requires on its face a showing of success on the merits before any fee becomes appropriate. By its terms, the attorney fees provision is triggered only "if the compensation ... awarded ... is greater than the amount paid or tendered by the employer or carrier." 33 U.S.C. § 928(b). Even when triggered, the statute provides only a fee "based solely upon the difference between the amount awarded and the amount tendered or paid." Id. This language differs less from the wording of the statute before the Hensley Court than did the language before our Sierra Club Court, and the concept differs in no determinative way.

Respondent...