McDonald v. AECOM Technology Corp.

• Decision Date: 19 September 2011
• Docket Number: BRB 10-0720
• Parties: RONNIE L. McDONALD, Claimant-Respondent v. AECOM TECHNOLOGY CORPORATION and ACE AMERICAN INSURANCE COMPANY, Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent
• Court: Longshore Complaints Court of Appeals

RONNIE L. McDONALD, Claimant-Respondent
v.
AECOM TECHNOLOGY CORPORATION and ACE AMERICAN INSURANCE COMPANY, Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent

BRB No. 10-0720

September 19, 2011

Appeal of the Decision and Order Regarding Jurisdiction and the Supplemental Decision and Order Awarding Attorney’s Fees of C. Richard Avery, Administrative Law Judge, United States Department of Labor.

Joshua T. Gillelan II (Longshore Claimants’ National Law Center), Washington, D.C., and Steven M. Birnbaum, San Rafael, California, for claimant.

Alan G. Brackett and Jon B. Robinson (Mouledoux, Bland, LeGrand & Brackett, L.L.C.), New Orleans, Louisiana, for employer/carrier.

Jonathan P. Rolfe (M. Patricia Smith, Solicitor of Labor; Rae Ellen James, Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers’ Compensation Programs, United States Department of Labor.

Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.

DECISION and ORDER

PER CURIAM.

Employer appeals the Decision and Order Regarding Jurisdiction and the Supplemental Decision and Order Awarding Attorney’s Fees (2009-LDA-0339) of Administrative Law Judge C. Richard Avery rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §901 et seq., as extended by the Defense Base Act, 42 U.S.C. §1651 et seq. (the Act). We must affirm the administrative law judge’s findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965). The amount of an attorney’s fee award is discretionary and will not be set aside unless shown by the challenging party to be arbitrary, capricious, an abuse of discretion, or not in accordance with law. Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).

Claimant worked for employer in Afghanistan. He was exposed to paint fumes and was diagnosed with respiratory problems. Claimant has suffered secondary medical problems which he attributes to his work-related lung conditions or to treatment for those conditions. The administrative law judge found that claimant’s psychological condition is the natural and unavoidable result of his work injury but that his hypertension and diabetes are not work-related. He awarded claimant temporary total disability and medical benefits. 33 U.S.C. §§907, 908(b); Decision and Order at 2-4, 11-16. ^[1]

The parties disputed which law should apply to determine employer’s liability for an attorney’s fee. The administrative law judge found that the law of the United States Court of Appeals for the Ninth Circuit applies to this claim, rejecting employer’s assertion that the law of the United States Court of Appeals for the Second, Fifth, or Tenth Circuit should apply. The administrative law judge explained that this Defense Base Act (DBA) case was originally filed in the Second Compensation District in New York, pursuant to 20 C.F.R. §704.101(e), and that, although claimant resides in Oklahoma, he hired counsel from San Francisco who had the case transferred to the Thirteenth Compensation District in San Francisco. The administrative law judge also stated that, despite employer’s requests, the case was not reassigned to the Eighth Compensation District in Houston, the one closest to claimant’s residence. ^[2] Accordingly, the administrative law judge’s Decision and Order was filed and served by the district director’s office in San Francisco. Based on the decisions in Service Employees Int’l, Inc. v. Director, OWCP [Barrios], 595 F.3d 447, 44 BRBS 1(CRT) (2 d Cir. 2010), and Hice v. Director, OWCP, 156 F.3d 214, 32 BRBS 164(CRT) (D.C. Cir. 1998), the administrative law judge found that Ninth Circuit law applies to this case. Decision and Order Regarding Jurisdiction at 2-3.

Counsel then filed a fee petition with the administrative law judge requesting a total fee of $74, 731.65. ^[3] Employer objected to the fee on the following grounds: employer is not liable for a fee under 33 U.S.C. §928(a), (b); there is no evidence that an informal conference was held on the issues on which claimant succeeded; claimant had limited success; the hourly rates claimed are excessive; some work was performed before the district director and not the administrative law judge; and, some specific entries are objectionable.

The administrative law judge found that neither party contended that Section 28(a) is applicable because employer voluntarily paid benefits for claimant’s work-related lung condition; therefore, because employer disputed claimant’s entitlement to additional benefits, the administrative law judge found that Section 28(b) is applicable. He acknowledged the split among the circuit courts as to the proper application of Section 28(b), noting that the Ninth Circuit’s application differs from that of the United States Courts of Appeals for the Fourth, Fifth, and Sixth Circuits. The administrative law judge found that, under Ninth Circuit law, claimant’s counsel is entitled to an employer-paid fee under Section 28(b) because, following the informal conferences, issues remained in dispute, and claimant established employer’s liability for his psychological condition as well as for a change in treating physician. Supp. Decision and Order at 3-4. The administrative law judge stated that claimant was unsuccessful on his claims for two of his three secondary injuries, and he “was successful on all the remaining issues” including obtaining continuing temporary total disability benefits; therefore, the administrative law judge rejected employer’s contention that he should apply an across-the-board reduction in the fee award pursuant to Hensley v. Eckerhart, 461 U.S. 424 (1983). With regard to the hourly rates, the administrative law judge found that, although counsel’s documentation could support an hourly rate of up to $500, the rate claimed of $475 is excessive, and he awarded an hourly rate of $375 which is within the rates established in the evidence proffered. The administrative law judge denied a fee for work performed before the district director and addressed the objections to specific entries. Ultimately, he awarded a fee for 91.6 hours of attorney services at an hourly rate of $375, six hours of law clerk services at an hourly rate of $150, and expenses in the amount of $3, 444.15, for a total fee of $38, 694.15. Supp. Decision and Order at 4-12.

Employer appeals the administrative law judge’s decision to apply Ninth Circuit law as well as its liability for and the amount of the fee award. Claimant responds, arguing that the application of Ninth Circuit law is proper and urging affirmance of the fee award. The Director, Office of Workers’ Compensation Programs (the Director), also responds to employer’s appeal, urging affirmance of the finding that Ninth Circuit law applies to this attorney’s fee case but taking no position on the appeal of the fee award itself.

Applicable Law

Employer contends the administrative law judge erred in finding that Ninth Circuit law applies in this case. It asserts that the DBA is ambiguous on this subject and that the applicable law should be that of the jurisdiction in which is located the district director’s office closest to claimant’s residence – here, the Fifth Circuit. Employer also avers that the choice of Fifth Circuit law is appropriate because the administrative law judge is located in Louisiana. Claimant and the Director argue that the DBA plainly provides that the determination of the applicable law is governed by the location of the district director’s office that files and serves the administrative law judge’s Decision and Order – here, San Francisco in the Ninth Circuit. ^[4]

Section 3(b) of the DBA provides:

Judicial proceedings provided under sections 18 and 21 of the Longshore and Harbor Workers’ Compensation Act [33 U.S.C. §§918, 921] in respect to a compensation order made pursuant to this chapter shall be instituted in the United States district court of the judicial district wherein is located the office of the deputy commissioner whose compensation order is involved if his office is located in a judicial district, and if not so located, such judicial proceedings shall be instituted in the judicial district nearest the base at which the injury or death occurs

42 U.S.C. §1653(b). With regard to an appeal to a federal court after the Board issues a final decision, the circuit courts are split as to the meaning of Section 3(b) of the DBA in view of the fact that the DBA was not explicitly amended after the Longshore Act was amended in 1972. ^[5] Citing Pearce v. Director, OWCP, 647 F.2d 716, 13 BRBS 241 (7 th Cir. 1981), Pearce v. Director, OWCP, 603 F.2d 763, 10 BRBS 867 (9 th Cir. 1979), and Barrios, 595 F.3d 447, 44 BRBS 1(CRT), employer notes that because the DBA was not amended in 1972 when the Longshore Act was amended, Section 3(b) of the DBA does not account for the functional changes made in the Longshore Act, i.e., the administrative law judge taking over the fact-finding functions, see 33 U.S.C. §919(d). Thus, as deputy commissioners no longer have fact-finding powers, employer asserts there is no longer a “deputy commissioner whose compensation order is involved” by which to determine jurisdiction. Employer draws support for this argument from the Ninth Circuit’s decision in Pearce which states that the amendments to the Longshore Act are to be incorporated into the DBA by general reference. ^[6] Pearce, 603 F.2d 763, 10 BRBS 867. Incorporating the Longshore Act by general reference, employer asserts, leads to the substitution of “administrative law judge” for...