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                                  BRB No. 98-589

                                         
ALMETIA BOSTON                          )
                                             )
          Claimant-Respondent                )    DATE ISSUED:   01/20/1999

                                        )
     v.                                      )
                                             )
ARMY & AIR FORCE EXCHANGE                    )
SERVICE                            )
                         )
     and                           )
                         )
THOMAS HOWELL GROUP           )
                         )
          Self-Insured                  )
          Employer/Administrator-       )
          Petitioner                    )    DECISION and ORDER

     Appeal of the Order Awarding Attorney's Fees of Edward C. Burch,
     Administrative Law Judge, United States Department of Labor.

     Gretchen Guzman (Cantrell, Green, Pekich, Cruz, McCort, & Baker), Long
     Beach, California, for claimant.

     Roy D. Axelrod (Law Offices of Roy Axelrod), San Diego, California, for
     self-insured employer.

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

     HALL, Chief Administrative Appeals Judge:

     Employer appeals the Order Awarding Attorney's Fees (94-LHC-283) of
Administrative Law Judge Edward C. Burch 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 Nonappropriated Fund
Instrumentalities Act, 5 U.S.C. §8171 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).

     Claimant was awarded permanent partial disability benefits of $65.05 per week
by Administrative Law Judge James R. Howard in 1983, as a result of a work-related
head injury occurring on July 30, 1978.  Subsequent to this award, claimant
requested modification  on October 19, 1993, pursuant to Section 22 of the Act, 33
U.S.C. §922,  asserting that she was entitled to total disability benefits due
to a change in her medical condition.  Employer responded to claimant's request by
filing a request for modification based on a mistake in fact in Judge Howard's
award.  On modification before Administrative Law Judge Edward C. Burch (the
administrative law judge), claimant was awarded permanent total disability benefits
of $184.58 per week from October 19, 1993, and continuing.  Employer's motion for
modification was denied.  Upon appeal to the Board, the Board affirmed the
administrative law judge's award of permanent total disability benefits and the
denial of employer's motion for modification.  The Board, however, limited
claimant's weekly compensation rate to $97.58 pursuant to Section 6(b)(2) of the
Act, 33 U.S.C. §906(b)(2). Boston v. Army & Air Force Exchange
Service, BRB No. 96-1602 (Aug. 18, 1997)(unpub.).[1]     

     Claimant's counsel subsequently submitted a fee petition to the administrative
law judge, requesting an attorney's fee of $21,595, representing 123.4 hours at
$175 per hour, plus $4,707.25 in expenses.  Employer filed objections to the fee
petition to which claimant's counsel replied and filed an addendum to the reply. 
In his Order Awarding Attorney's Fees, the administrative law judge awarded
claimant's counsel an attorney's fee of $19,915, representing 113.8 hours at $175
per hour, plus $4,689.75 in expenses.  

     On appeal, employer contests the administrative law judge's award of an
attorney's fee, challenging the hourly rate and asserting that the fee award does
not comport with the holding of the Supreme Court in Hensley v. Eckerhart,
461 U.S. 424 (1983).  Employer specifically contends that as a result of the
Board's reduction of the compensation rate, claimant was only partially successful
in pursuing her claim, and that therefore the fee award should be reduced by half. 
Claimant responds in support of the administrative law judge's fee award.

     We affirm the administrative law judge's fee award as it comports with the
holding in Hensley and as the hourly rate of $175 is reasonable.  In
Hensley, the Supreme Court created a two-prong test:

     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?

Hensley, 461 U.S. at 434.  Where claims involve a common core of facts, or
are based on related legal theories, the Court stated that the district court
should focus on the significance of the overall relief obtained by the plaintiff
in relation to the hours reasonably expended on litigation.  Thus, where a
plaintiff has obtained "excellent" results, the fee awarded should not be reduced
simply because the plaintiff failed to prevail on every contention raised.  If the
plaintiff achieves only partial or limited success, however, the product of hours
expended on litigation as a whole, times a reasonably hourly rate, may result in
an excessive award; the award should be for the amount of fees that is reasonable
in relation to the results obtained. Hensley, 461 U.S. at 435-436.  Here,
the Court provided no rule or formula.   The Court did, however, emphasize the
discretion of the district court in determining the amount of a fee award,
requiring the lower court to provide a concise and clear explanation of the award
and stating:

     When an adjustment is requested on the basis of either the exceptional
     or limited nature of the relief obtained by the plaintiff, the district
     court should make clear that it has considered the relationship between
     the amount of the fee awarded and the results obtained.  

Hensley, 461 U.S. at 437.

     In the instant case, the administrative law judge clearly considered
Hensley's two-prong test. See Order at 3.  Initially, he found that
claimant did not fail to prevail on any issue as claimant succeeded on all issues
on her request for modification, and she defended against employer's motion for
modification, which, if successful, would have resulted in the denial of all future
benefits.  Next, the administrative law judge acknowledged that the Board's
modification of claimant's compensation rate cut claimant's award nearly in half,
from $184.58 to $97.58 per week, and that counsel's fee request is considerable. 
However, he stated he would not reduce the fee based on this factor because he did
not want to penalize counsel for his computation error.  Moreover, he recognized
that counsel successfully obtained modification of claimant's award after three
years of work and reasoned that claimant actually lost nothing on appeal as she was
never legally entitled to an award of $184.58 per week.  The administrative law
judge emphasized that claimant succeeded totally in obtaining her right to the
maximum compensation rate permitted under Section 6(b)(2), and because of this, he
would not reduce the fee requested by claimant's counsel for work performed before
him based on Hensley.  As the administrative law judge fully considered the
two-prong test in Hensley and acted within his discretion in determining the
amount of the fee award after explicitly considering the relationship between the
amount of the fee awarded and the results obtained, we affirm the administrative
law judge's fee award, as we are unable to find that the award is not in accordance
with law or constitutes an abuse of discretion. Hensley v. Eckerhart, 461
U.S. 424 (1983); see generally George Hyman Constr. Co. v. Brooks, 963 F.2d
1532, 25 BRBS 161 (CRT)(D.C. Cir. 1992).  

     Moreover, the administrative law judge acted within his discretion in finding
that $175 is a reasonable hourly rate for attorneys with similar experience to that
of both Ms. Guzman and Mr. Baker, based on his knowledge of longshore practice in
the Long Beach area.[2]   See Canty v. S.E.L.
Maduro, 26 BRBS 147 (1992); Order at 2.  As employer failed to establish that
the administrative law judge abused his discretion in this regard, we reject
employer's challenge to the requested hourly rate of $175.  We, therefore, affirm
the administrative law judge's award of an attorney's fee.

     Accordingly, the administrative law judge's Order Awarding Attorney's Fees is
affirmed.      

     SO ORDERED.


                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



     I concur:                                                     
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge


     McGRANERY, Administrative Appeals Judge, dissenting:

     I respectfully dissent from the majority's decision to affirm the
administrative law judge's award of attorney's fees in the case at bar.  I would
remand the case for the administrative law judge to apply the teaching of 
Hensley v. Eckerhart, 461 U.S. 424 (1983).

     Although the majority asserts that it affirms the administrative law judge's
decision because the administrative law judge properly applied the Supreme Court's
directive in Hensley, in fact, neither the administrative law judge's
opinion nor the majority's reflects the fundamental teaching of Hensley:
that the "results obtained" is the "crucial" factor in calculating an attorney's
fee. Hensley, 461 U.S. at  435.  In Farrar v.  Hobby, 506 U.S. 103
(1992), the Supreme Court made clear that the "results obtained" are measured by
the purpose of the litigation.  The plaintiff in Farrar proved that a
defendant had deprived him of a civil right, but plaintiff was awarded only nominal
damages.  The High Court held that because the purpose of civil rights litigation
is recovery of private damages, plaintiffs' attorneys were entitled to no fee.
Farrar, 506 U.S. at 114-115.

     Since the purpose of claimant's litigation under the Longshore Act was to
receive compensation,[3]  the attorney's fee award
should be tailored to the limited amount claimant was awarded. See Ingalls
Shipbuilding, Inc. v. Director, OWCP [Baker], 991 F.2d 163, 166, 27 BRBS 14,
16 (CRT)(5th Cir. 1993); George Hyman Construction Co. v. Brooks, 963 F.2d
1532, 1540, 25 BRBS 161, 172  (CRT) (D.C. Cir. 1992);  General Dynamics Corp. 
v.  Horrigan, 848 F.2d 321, 21 BRBS 73 (CRT)(1st.  Cir.), cert.  denied,
488 U.S. 992 (1988).  

     In 1978, claimant suffered a work-related head injury for which she was
awarded permanent partial disability benefits of $65.05 per week.  In 1993, she
petitioned for modification, contending that she was entitled to permanent total
disability benefits.  Employer responded with its own petition for modification,
asserting that the administrative law judge had made a mistake in fact and that
claimant was entitled to no compensation.  The new administrative law judge
assigned to the case denied employer's motion and granted claimant's request,
awarding permanent total disability benefits at a rate of $184.58 from October 19,
1993 and continuing, with annual adjustments pursuant to 33 U.S.C. §910(f). 
Employer appealed the administrative law judge's Decision and Order to the Board
which reduced claimant's compensation rate to $97.58.

     Claimant's counsel requested an attorney's fee in the amount of $21,595 for
123.4 hours of work by attorneys at $175 per hour.  Employer objected and the
administrative law judge awarded an attorney's fee of $19,915 for 113.8 hours of
work at $175 per hour, and $4,689.75 in expenses.  Although the administrative law
judge purported to apply the Hensley test, even quoting it verbatim, he
clearly failed to understand it:

     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?

Hensley, 461 U.S. at 434; Order at 3.

     The administrative law judge found that because claimant received an award for
permanent total disability benefits, "she succeeded totally in preserving her right
to the maximum compensation rate permitted under Section 6(b)(2)."  Order at 3. 
He therefore concluded that Hensley did not warrant reduction of the
attorney's fee.  And the majority agrees.

     Both the administrative law judge and the majority fail to recognize that in
this Longshore Act case, the "level of success" is the amount of compensation
awarded, just as in civil rights suits, the level of success is the amount of
damages awarded, see Farrar,  506 U.S. at 115.  The administrative law judge
never considered his attorney's fee award of $19,915 in light of the permanent
compensation award at a rate of $97.58 per week to a claimant who was fifty years
old at the time of the hearing in 1996.[4]   Is an
attorney's fee of $19,915 reasonable in the instant case when claimant would not
receive a comparable sum in compensation for nearly four years?  The Supreme Court
repeatedly directs the trial court in Hensley to "make clear that it has
considered the relationship between the amount of the fee awarded and the results
obtained." 461 U.S. at 438.  The analysis of this relationship was never undertaken
by the administrative law judge.  For that reason I would remand the case for the administrative law judge to undertake the analysis required by
Hensley, tailoring the attorney's fee award to claimant's limited success.
See Baker, 991 F.2d at 166, 27 BRBS at 16 (CRT);  Brooks, 963 F.2d
at 1540, 25 BRBS at 172 (CRT).





                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge


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Footnotes.


1) Contrary to a statement in employer's brief, the Board stated that claimant is entitled to annual adjustments pursuant to 33 U.S.C. §910(f). Boston, slip op. at 6. Back to Text
2) Contrary to employer's contention, the court's holding in Finnegan v. Director, OWCP, 69 F.3d 1039, 29 BRBS 121 (CRT)(9th Cir. 1995) (affirming Board's reduction of hourly rate from $175) is distinguishable from the instant case in that the fee request in Finnegan originated from counsel's work performed before the Board and not an administrative law judge. Therefore, the Board was not bound by the abuse of discretion standard in that case as it is in reviewing an administrative law judge's hourly rate determination, as here. Back to Text
3)Claimant's right to medical benefits was not contested in the litigation at issue. Back to Text
4)Since employer contested in the litigation at issue claimant's right to receive any compensation, the administrative law judge should consider the entire sum awarded, $97.58 per week for permanent total disability, not just the amount of the increase over claimant's past award of $65.05 for permanent partial disability. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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