The regulations governing Black Lung Benefits Act claims provide that a qualified attorney need not file a notice of appearance, but may submit a written declaration (or oral declaration at the formal hearing) that s/he is authorized to represent the party. 20 C.F.R. § 725.362(a).
A representative must be qualified under 20 C.F.R. § 725.363. See 20 C.F.R. § 725.362(a). An attorney may be appointed as a representative if s/he is in good standing and admitted to practice before a court of a state, territory, district, or insular possession, or before the Supreme Court of the United States or other federal court. 20 C.F.R. § 725.363(a). In addition, the attorney must not be prohibited from acting as a representative pursuant to any provision of law. Id.
Any other person may, with the approval of the adjudication officer, be appointed as a representative so long as that person is not, pursuant to any provision of law, prohibited from acting as a representative. 20 C.F.R. § 725.363(b).
In Black Lung Benefits Act cases, a claimant may not be charged a fee for representation services unless otherwise approved under the regulations. 20 C.F.R. § 725.365. If benefits are awarded, either the employer or the Black Lung Disability Trust Fund will pay the attorney’s fees. The attorney must file a fee petition under 20 C.F.R. § 725.366. If a successful claimant was represented by a non-attorney representative and there is no employer liable for the payment of the benefits, the Black Lung Disability Trust Fund will not pay fees or costs to lay representatives; therefore, the claimant would be liable for any fees owed.
For more information, see generally Judges’ Benchbook of the Black Lung Benefits Act (OALJ 2013), Chapter 27, Representative’s Fees and Representation Issue; see also Form CM-972: Application for Approval of a Representative’s Fee In a Black Lung Claim Proceeding Conducted by The U.S. Department of Labor.
See also 20 C.F.R. § 802.202 (Entry of appearance before the BRB).