BRB No. 00-0247

JOSEPH LOMBARDO                         )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
AMERICAN STEVEDORING, LIMITED           )    DATE ISSUED:   11/08/2000
                                             
                                        )
     and                                )
                                        )
SIGNAL MUTUAL INDEMNITY                 )
ASSOCIATION                             )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Supplemental Decision and Order Upon Remand of Ainsworth
     H. Brown, Administrative Law Judge, United States Department of Labor.

     James R. Campbell, Middle Island, New York, for claimant.

     Christopher J. Field (Weber, Goldstein, Greenberg & Gallagher, LLP),
     Jersey City, New Jersey, for employer/carrier.

     Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Supplemental Decision and Order Upon Remand (98-LHC-0954)
of Administrative Law Judge Ainsworth H. Brown 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. (the Act).  The amount of an attorney's
fee award is discretionary and may be set aside only if the challenging party shows
it to be arbitrary, capricious, an abuse of discretion, or not in accordance with
law. See, e.g., Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272
(1980).  This is the second time this case is before the Board.


     Claimant suffered a work-related injury to his right ankle and left knee.  On
June 22, 1998, the parties informed the administrative law judge that all issues
between them had been resolved, and requested that the case be remanded for
processing.  Subsequently, claimant's counsel sought a fee of $6,412.50,
representing 25.65 hours of legal services rendered at the hourly rate of $250.

     In his Order of Remand and Award of Attorney Fees, the administrative law
judge granted the parties' request to remand the case to the district director "for
processing," and awarded claimant's counsel a fee of $1,880.  The administrative law
judge summarily denied claimant's motion for reconsideration.  Claimant appealed
this fee award to this Board, contending that it is so inadequate as to be
arbitrary, capricious and an abuse of discretion.

     While agreeing that the administrative law judge correctly found that
claimant's counsel is not entitled to a fee for work performed regarding employer's
entitlement to Section 8(f) relief, 33 U.S.C. §908(f), the Board found that
the administrative law judge neglected to state which other specific hours were
being disallowed and failed to specifically discuss the application of the
regulatory criteria of 20 C.F.R §702.132.  As a result of these deficiencies,
the Board vacated the administrative law judge's fee award and remanded the case for
reconsideration pursuant to the regulatory criteria. Lombardo v. American
Stevedoring, Ltd.,  BRB No. 98-1546 (July 28, 1999)(unpublished).

     On remand, the administrative law judge specifically addressed sixteen
requested items and either reduced them as excessive or eliminated them for varying
reasons.  He then reinstated his previous attorney's fee award of $1,880.

     Claimant again appeals, arguing that the reduced fee is inadequate.  Employer
responds, urging affirmance.

     Claimant asserts on appeal that the fee awarded by the administrative law
judge is so inadequate as to be arbitrary, capricious, an abuse of discretion, and
not in accordance with law.  Specifically, in support of his appeal, claimant avers
that the administrative law judge erred in awarding an attorney's fee without
considering counsel's experience, the actual time spent on services rendered to
claimant, and the results obtained as a result of the performance of those
services.  We agree.

     An attorney's fee must be awarded in accordance with Section 28 of the Act,
33 U.S.C. §928, which provides that an awarded attorney's fee must be
reasonable, and the applicable regulation, 20 C.F.R. §702.132, which provides
that an awarded attorney's fee shall be reasonably commensurate with the necessary
work done, the complexity of the legal issues involved and the amount of benefits
awarded. See generally Ross v. Ingalls Shipbuilding, Inc., 29 BRBS 42
(1995); Parrott v. Seattle Joint Port Labor Relations Committee of the Pacific
Maritime Ass'n, 22 BRBS 434 (1989).  Moreover, a fee award should be for an
amount that is reasonable in relation to the results obtained. See Hensley v.
Eckerhart, 461 U.S. 424 (1983);  Bullock v. Ingalls Shipbuilding, Inc., 27 BRBS 90 (1993)(en
banc)(Brown and McGranery, JJ., concurring and dissenting), modified on other grounds on recon. en banc,
28 BRBS 102 (1994), aff'd mem. sub nom. Ingalls Shipbuilding, Inc. v. Director, OWCP [Biggs], 46 F.3d 66 (5th
Cir. 1995); Ahmed v. Washington Metropolitan Area Transit Authority, 27 BRBS 24 (1993).  The test for
determining whether an attorney's work is compensable is whether the work reasonably could have been regarded as
necessary to establish entitlement at the time it was performed. See, e.g., Maddon v. Western Asbestos Co., 23
BRBS 55 (1989).

     Before the administrative law judge, employer raised numerous objections to
counsel's fee petition, asserting that many of the entries contained therein were
excessive or duplicative.  In his decision on remand, the administrative law judge
discussed sixteen specific entries requested by claimant's counsel.  Regarding
those entries, the administrative law judge found eight were excessive and thus
reduced the time requested.  The hours claimed in the remaining 8 entries were
disallowed either on the basis that the time was  duplicative of work previously
performed, that it was unnecessary or that the entry was  vague.  Thereafter, the
administrative law judge found that counsel's success in this case was achieved by
the receipt of one medical report from claimant and that, therefore,  a fee of
$1,880 was reasonable for the services rendered by counsel on behalf of claimant.[1] 

     Having reviewed claimant's contentions on appeal, we conclude that the
administrative law judge's fee award must be vacated and the case remanded for further
consideration under the applicable legal standard.  Claimant avers that the
administrative law judge erred in reducing his requested fee after finding that the
instant case was resolved pursuant to the receipt of one medical report and without
a formal hearing being held.  Specifically, claimant's counsel asserts that, as
employer failed to inform him of its intention to settle this case pre-hearing, he
was ethically obligated to fully prepare claimant's case for presentation before
the administrative law judge.  We agree with counsel that the administrative law judge
erred in reducing various entries set forth in his fee petition based upon a
determination that, because employer agreed to pay benefits on the day of the
formal hearing, the services rendered were unnecessary.  In this regard, the
administrative law judge engaged in a retrospective analysis of a claimant's attorney's
fee petition.  Such an analysis is not in accordance with law, as the proper test
to determine the compensability of an attorney's work is whether, at the time the
attorney performed the work in question, he could reasonably regard the work as
necessary to establish entitlement.[2]   See
Maddon, 23 BRBS at 55.  Moreover, where a case is resolved shortly prior to a
scheduled hearing, counsel is entitled to be compensated for his necessary work up
to that time and any services performed thereafter which are required to "wind up"
the case. See Everett v. Ingalls Shipbuilding, Inc.,  32 BRBS 279 (1998), aff'd on recon. en banc,
33 BRBS 38 (1999); Kleiner v. Todd Shipyards Corp., 16 BRBS 297 (1984). 
Therefore, the case must be remanded for reconsideration of the compensable hours
under the correct legal standard.

     In addition, the administrative law judge must reconsider the hourly rate. 
As noted, the administrative law judge did not specifically determine an
appropriate rate, indicating only that the requested rate of $250 was too high. 
To the extent the rate was reduced because the matter was not highly contested and
was resolved after receipt of one report, the administrative law judge must reconsider
his conclusion as it is based on the retrospective analysis discussed above.  The
administrative law judge must also consider the relevant factors of 20 C.F.R.
§702.132.  In this regard, the amount of benefits is a factor, and the
administrative law judge erred by failing to consider the excellent results obtained by
claimant's counsel.  Counsel asserts  that his services resulted in the
reinstatement of claimant's benefits, the payment of approximately $43,000 in back
benefits due to claimant,  and employer's authorization of surgery.  On remand, the
administrative law judge must consider this success, as well as the other  regulatory
factors, in determining an appropriate hourly rate.  We therefore vacate the
administrative law judge's fee award and remand the case for the administrative law judge
to reconsider the time requested and services rendered by claimant's counsel on
this case.  The administrative law judge must explain his conclusions and award a
fee based on  the necessity and reasonableness of the work involved as well as the
ultimate success obtained as a result of the services rendered by counsel on behalf
of claimant.  20 C.F.R. §702.132.

     Accordingly, the administrative law judge's Supplemental Decision and Order
Upon Remand awarding attorney fees is vacated, and the case remanded for further
consideration consistent with this opinion.

     SO ORDERED.    





                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.
 1)     1In awarding counsel this fee, the administrative law judge did
not approve a definitive hourly rate, stating only that $250 was "toward the high
end" for New York City attorneys.  The effective rate awarded after the total fee
is divided by the number of approved hours was $164.92.
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 2)     2Thus, for example, the administrative law judge erred in
denying time for trial preparation on June 19, 1998, and reducing the 5 hours
claimed on June 22, 1998, to one-half hour based on his conclusion that this time
was all that was needed for counsel to notify the judge of the outcome.  The
administrative law judge must review this time in terms of whether counsel's efforts were
reasonable based on what he knew at the time the work was performed.  Moreover, the
administrative law judge rejected 2.7 hours on May 4, 1998, as duplicative of those on
April 2, a conclusion belied by the face of the fee petition.  On April 2, claimant
reviewed and copied employer's files.  On May 4, he reviewed the complete file in
trial preparation, copied the exhibits for trial and had claimant examined by Dr.
Post.  These entries provide examples of errors in the administrative law judge's review
but are not exclusive; thus, the administrative law judge must reconsider the entire fee
petition on remand. 
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