BRB No. 00-1086 BLA
EARL S. WOODSON )
)
Claimant-Petitioner )
)
v. )
)
PEABODY COAL COMPANY ) DATE ISSUED:08/30/2001
)
Employer-Respondent )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Supplemental Decision and Order of John C. Holmes,
Administrative Law Judge, United States Department of Labor.
John Cline, Piney View, West Virginia, for claimant.
Mark E. Solomons, Tab R. Turano and Laura Metcoff Klaus (Greenberg
Traurig LLP), Washington, D.C., for employer.
Sarah M. Hurley (Howard M. Radzely, Acting 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: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Supplemental Decision and Order (95-BLA-2017) of
Administrative Law Judge John C. Holmes denying claimant's lay representative's
application for fees and expenses for services performed before the administrative
law judge on a 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] On appeal, claimant
contends that, contrary to the administrative law judge's holding, the
administrative law judge has the authority to hold employer liable for the fees of
a claimant's lay representative and that the administrative law judge erred in not
reviewing and evaluating claimant's lay representative's fee request for approval
pursuant to 20 C.F.R. §725.366(d). Employer responds, urging that the
administrative law judge's Supplemental Decision and Order be affirmed. The
Director, Office of Workers' Compensation Programs (the Director), as a party-in-interest, has not responded to this appeal.
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, or an abuse of
discretion, see Abbott v. Director, OWCP, 13 BLR 1-15 (1989), citing
Marcum v. Director, OWCP, 2 BLR 1-894 (1980).
Claimant's lay representative requested a total fee of $2,056.60 for services
performed before the administrative law judge, which included 24.8 hours of
services at an hourly rate of $80.00, plus $72.60 in expenses. Employer objected,
contending that there is no authorization for a non-attorney to obtain a fee under
the Act. The administrative law judge held that, pursuant to the Board's holding
in Harrison v. Liberty Mutual Insurance Co., 3 BLR 1-596 (1981), a lay
representative must be paid by the claimant, if at all, and not employer. In
addition, the administrative law judge noted that it is not the sole province of
the administrative law judge, even absent direct instructions by the Board, to rule
on whether or not a fee may be ordered to be paid by the litigant to a lay
representative, since the state in which the representation took place may also
find it has an interest in licensing (authorizing) the practice of law. Thus, the
administrative law judge denied the claimant's lay representative's application for
fees and expenses.
Claimant contends that because the administrative law judge has the authority
to conduct a fair and impartial hearing, he has the authority to hold employer
liable for the fees of a miner's lay representative.[2] Claimant notes that while legal representation is crucial in black
lung cases, claimants are not always able to obtain an attorney to represent them
and that to hold claimants liable for the fees of a lay representative deters a
source of needed legal assistance available to claimants. Claimant contends that
such a result is inequitable and violates the Equal Protection Clause, as a lay
representative is forced to collect a fee from a claimant who may be indigent or
unwilling to pay. Finally, claimant contends that other federal statutes have been
found to include the work performed by non-attorneys in the award of an "attorney's
fee."[3]
Contrary to claimant's contentions, Section 28 of the Longshore and Harbor
Workers' Compensation Act, 33 U.S.C. §928, as incorporated into the Act by 30
U.S.C. §932(a), applies only to the award of attorney's fees and there is no
authority in either the Act or the implementing regulations for an approved fee
requested by a lay representative to be assessed against an employer, the Black
Lung Disability Trust Fund or as a lien against claimant's benefits, see Galle
v. Ingalls Shipbuilding, Inc., 33 BRBS 141, 145 (1999); Madrak v. Director,
OWCP, 7 BLR 1-559, 1-561 (1984); Harrison, supra. The comments
accompanying 20 C.F.R. §725.365 when originally promulgated, governing fee
awards and the assessment of attorney's fees as a lien against claimant's benefits,
state that "[t]he Department does not have the authority to extend by regulation
the statutory lien provided for attorneys only, to representatives who are not
attorneys." See 43 Fed. Reg. 36788 (Aug. 18, 1978); Harrison,
supra. The comments accompanying 20 C.F.R. §725.367 (2000), addressing
the payment of attorney's fees by a responsible operator, applicable to this claim
filed prior to January, 19, 2000, see 20 C.F.R. §725.2(c), state that
"[w]hile the Department recognizes the excellent service to claimants provided by
non-attorney representatives, it does not believe that an award of fees to be paid
by the operator to such individual in addition to compensation is authorized by
statute." See 43 Fed. Reg. 36789 (Aug. 18, 1978); Harrison,
supra. Similarly, the comments accompanying the revised 20 C.F.R.
§725.367, applicable to claims filed after January, 19, 2000, see 20
C.F.R. §725.2(c), also state that "[t]he Department rejected comments
suggesting that lay representatives should be entitled to collect fees from
responsible coal mine operators or the fund." See 65 Fed. Reg. 79979 (Dec.
20, 2000). Thus, we reject claimant's contention that the administrative law judge
has the authority to hold employer liable for the fees of a miner's lay
representative.
Claimant also contends that requiring a lay advocate to obtain his fee from
claimant may deter the lay advocate from undertaking representation because
claimant may be indigent or unwilling to pay. Claimant's argument overlooks the
fact that the lay advocate, like the attorney, can collect a fee only if he is
successful in obtaining benefits for claimant. At that time claimant is no longer
indigent and should be willing to pay for the successful prosecution of his claim.
Further, claimant's contention that requiring a lay advocate to obtain his fee from
claimant imposes a financial burden on claimant that is not imposed by other
federal statutes is an argument to be made to Congress rather than to this
tribunal.
However, while the administrative law judge properly held that employer cannot
be held liable for claimant's lay representative's fees, claimant properly contends
that the administrative law judge nevertheless erred in denying claimant's lay
representative's application for approval of fees and expenses altogether, without
reviewing and evaluating claimant's lay representative's fee request for approval
pursuant to 20 C.F.R. §725.366(d), which, if approved, could be assessed
against claimant, see Madrak, supra, and/or which claimant's lay
representative could then submit to claimant for payment, see Harrison,
supra. Consequently, we vacate the administrative law judge's denial of
claimant's lay representative's application for fees and expenses and remand the
case for the administrative law judge to review and evaluate claimant's lay
representative's fee request for approval pursuant to 20 C.F.R. §725.366(d),
which can be assessed against claimant.
Accordingly, the administrative law judge's Supplemental Decision and Order
denying claimant's lay representative's application for fees and expenses is
vacated and the case is remanded for further consideration consistent with this
opinion.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
To Top of Document
Footnotes.
1) The Board affirmed an award of benefits in the instant claim, which was filed on April 2, 1992,
Director's Exhibit 1, and arises within the jurisdiction of the United States Court of Appeals for the Fourth Circuit, see
Woodson v. Peabody Coal Co., BRB No. 98-1530 BLA (Aug. 19, 1999)(unpub.) and Woodson v. Peabody Coal
Co., BRB No. 98-1530 BLA (Apr. 13, 2000)(unpub. order on recon.). No further appeal was taken by the parties.
Back to Text
2) Although employer contends in its response brief filed on February 20, 2001, that claimant's
Petition for Review should be dismissed as untimely filed, the Board previously accepted claimant's Petition for Review
and brief as a part of the record, see 20 C.F.R. §§802.211, 802.217; Woodson v. Peabody Coal
Co., BRB No. 00-1086 BLA (Jan. 25, 2001)(order).
Back to Text
3) On August 9, 2001, the United States District Court for the District of Columbia issued its
decision in National Mining Association v. Chao, D.D.C., 00-3086 (Aug. 9, 2001), granting summary judgment
defending final regulations issued on December 20, 2000, 65 Federal Register 79920-80107 under Title IV of the Federal
Coal Mine Health and Safety Act of 1969, as amended. In its decision, the court also dissolved the Preliminary Injunction
Order that it had issued on February 9, 2001. As a result of the court's decision, the issue raised by the Preliminary
Injunction Order is now moot, and we will not address the briefs submitted by the parties in response to the Board's order
of May 18, 2001.
Back to Text
NOTE: This is an UNPUBLISHED BLA Document.
To Top of Document
|
