BRB No. 01-0811
GLEN RUBIN )
)
Claimant-Petitioner )
)
v. )
)
ZACHARY PARSONS-SUNDT ) DATE ISSUED: 07/15/2002
)
and )
)
ACE USA )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Supplemental Decision and Order and the Amended
Supplemental Decision and Order of John C. Holmes, Administrative Law
Judge, United States Department of Labor.
Richard Mark Baker, Long Beach California, for claimant.
Keith L. Flicker (Flicker, Garelick & Associates), New York, New York,
for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Supplemental Decision and Order and the Amended
Supplemental Decision and Order (99-LHC-2176) of Administrative Law Judge John C.
Holmes 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).
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 the law. See, e.g., Muscella v. Sun
Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
The facts underlying this appeal are not in dispute. Claimant, a
laborer/carpenter working on the demolition of the United States Embassy in Moscow,
suffered an injury to his back on July 30, 1997, underwent treatment in the United
States and returned to his usual job duties despite recurrent back pain. Upon
completion of the job, claimant was diagnosed as suffering from lumbar
radiculopathy as a result of two herniated discs and underwent double fusion
surgery on January 24, 2000.[1]
Claimant filed a claim for benefits under the Act and a hearing was thereafter
scheduled in Tucson, Arizona, before Administrative Law Judge Burch. Although the
parties appeared to reach a settlement at this initial hearing, claimant
subsequently declined to execute the settlement proposed by employer, arguing that
it was not an accurate reflection of the parties' agreement. A second hearing was
then scheduled on November 15, 2000, in Tucson, Arizona, before Administrative Law
Judge Holmes (the administrative law judge); it is agreed that at this hearing the
parties arrived at a settlement of all issues.[2]
Subsequent to this agreement, claimant's attorney filed a petition for attorney
fees, requesting $35,750 for 143 hours of services rendered at $250 per hour, plus
$11,460.52 in costs.[3] Employer filed objections
to this fee petition.
In his decision, the administrative law judge awarded claimant an attorney's
fee of $21,750, representing 87 hours of services at a rate of $250 per hour, plus
expenses of $4,725.35. See Supplemental Decision and Order. Claimant
thereafter filed a motion for reconsideration with the administrative law judge,
arguing that he had not had time to respond to employer's objections to his fee
petition. After consideration of claimant's arguments on reconsideration, the
administrative law judge further reduced the requested fee by an additional four
hours and reduced the requested expenses; he thus awarded claimant's attorney a fee
of $20,750, plus $4,381.60 in expenses. See Amended Supplemental Decision
and Order.
Claimant appeals, arguing that the administrative law judge's reduction in the
number of hours requested is arbitrary, capricious and an abuse of his discretion.
Employer responds, urging affirmance.
Although it is well established that an administrative law judge's fee award
is discretionary, see generally Forlong v. American Security & Trust Co.,
21 BRBS 155 (1988), we agree with claimant that the administrative law judge's fee
award in the instant case does not comport with law and must be vacated. See
Devine v. Atlantic Container Lines, G.I.E., 23 BRBS 279 (1990); see
generally Steevens v. Umpqua River Navigation, 35 BRBS 129 (2001); Jensen
v. Weeks Marine, Inc., 33 BRBS 97 (1999). In this regard, it is the
administrative law judge's responsibility to review the fee petition submitted by
counsel and to determine whether the fee requested is reasonably commensurate with
the necessary work done. Bazor v. Boomtown Belle Casino, 35 BRBS 121
(2001). However, where an administrative law judge has not set forth a sufficient
explanation for the reductions made, the Board is prevented from reviewing the
award and will remand the case to the administrative law judge for an explanation.
Devine, 23 BRBS at 288; Speedy v. General Dynamics Corp., 15 BRBS 448
(1983).
In the instant case, the administrative law judge in his initial decision
found that counsel had requested an "inordinate amount" of time for "routine
matters such as receipt of and reviewing correspondence and/or fax, and telephone
calls." See Supplemental Decision at 2. Next, the administrative law judge
stated that "when longer hours were charged, they appeared [sic] excessive . . .
. Nor do I believe all travel time should be compensated at the hourly rate
charged."[4] Id. Based upon these two
statements, and without discussion of the regulatory criteria contained at 20
C.F.R. §702.132, the administrative law judge stated his belief that "a
reduction in hours charged of 60 is appropriate and not at all niggardly," and he
accordingly awarded counsel a fee for 87 hours of services rendered on claimant's
behalf. Id. Thereafter, in addressing claimant's motion for
reconsideration, the administrative law judge found that he had "underestimated the
size of reduction of claimant's counsel's fee," specifically for the review of
documents, and he thereafter determined that a further reduction of four hours was reasonable.[5] See Amended Supplemental Decision at 4.
Initially, we reverse the administrative law judge's reduction, in his amended
decision, of four hours, based on his conclusion that the time spent was excessive,
since no party on reconsideration challenged these previously awarded services and
the administrative law judge failed to specify which services he was in fact
reducing. Thus, the administrative law judge's reduction is arbitrary and
capricious. Moreover, given the cursory nature of the administrative law judge's
initial decision awarding counsel a fee, in particular his failures to state which
specific hours were being reduced or to discuss the applicable regulatory criteria,
we must vacate the administrative law judge's reductions of claimant's fee request
in his Supplemental Decision and Order and remand this case for further
consideration. On remand, the administrative law judge is instructed to reconsider
his reductions, fully discussing claimant's counsel's fee petition and employer's
objections to the services set forth therein. The administrative law judge must
provide a full and thorough discussion, as well as an adequate rationale, for any
reductions in counsel's requested fee, pursuant to the regulatory criteria, which
require that he base his determinations upon findings as to whether the hours
requested are reasonably commensurate with the necessary work performed, taking
into account the quality of the representation, the complexity of the legal issues
involved, and the amount of benefits awarded. See 20 C.F.R. §702.132;
Muscella, 12 BRBS 272.
Claimant also contends that the administrative law judge erred in reducing the
amount of expenses and costs sought by counsel. Section 28(d) of the Act, 33
U.S.C. §928(d), provides that the costs, fees and mileage for necessary
witnesses can be assessed against employer when an attorney's fee is awarded
against employer, but only if they are reasonable and necessary. See generally
Ezell v. Direct Labor, Inc., 33 BRBS 19 (1999); 20 C.F.R. §702.135. The
test for compensability concerns whether the attorney, at the time the work was
performed, could reasonably regard it as necessary, rather than whether the
evidence was actually used. Bazor, 35 BRBS 121. In addition to expenses,
fees for travel time may be awarded where the travel is necessary, reasonable, and
in excess of that normally considered to be a part of overhead. Ferguson v.
Southern States Cooperative, 27 BRBS 16 (1993).
In addressing counsel's documented expenses, the administrative law judge
initially determined that he did "not find serious fault with any one of these
costs if isolated, [however] taken together they demonstrate excessive costs and
a disregard for economy in expenses." See Supplemental Decision at 2.
Thereafter, the administrative law judge considered the travel and witness expenses
requested for Dr. Capen, $10,671, to be excessive, and he reduced that requested
amount to $3,000. Next, the administrative law judge awarded $1,200 for all travel
and hotel costs incurred, and $525.35 for mail and reporting services. All of
claimant's remaining expenses were denied. Id. On claimant's request for
reconsideration, the administrative law judge, after stating that claimant could
have requested a hearing in Los Angeles in order to minimize the hours of travel
for his counsel and Dr. Capen,[6] found that
"[m]any people . . . including orthopedic surgeons, would consider a day in Phoenix
in November to be a vacation and not a hardship; surgery schedules could have been
aligned so that, in fact, rather than theory, Dr. Capen would experience
no loss of earnings because of his possible testimony."
See Amended Supplemental Decision at 4 (emphasis in original). The
administrative law judge then reduced Dr. Capen's costs by an additional $500.
Id. at 5.
While claimant generally objects to all deductions made by the administrative
law judge in his request for expenses associated with claimant's claim for
benefits, he specifically addresses the reductions associated with the witness
expenses of Dr. Capen which were reduced from $10,671 to $3,000 and then to $2,500,
and the expenses associated with the deposition of Dr. Ladin, for which the
administrative law judge reduced associated travel expenses, contending that
claimant could have arranged for Dr. Ladin's deposition to be taken by local
counsel in Phoenix.[7] For the reasons that
follow, we agree with claimant that the administrative law judge's reductions in
these costs cannot be affirmed.
Initially, we reverse the additional $500 reduction in Dr. Capen's expenses,
as the administrative law judge lacked any basis to reduce this expense on
claimant's request for reconsideration. Moreover, we hold that the administrative
law judge's explanation for any reductions in the expenses associated with Dr.
Capen does not comport with law. Specifically, the administrative law judge's
unsubstantiated statement on reconsideration that Dr. Capen could have "in fact,
rather than theory" experienced no loss of earnings because of his attendance at
the hearing is plainly inadequate. Both the Act and its implementing regulations
provide for the reimbursement by employer of costs, fees and mileage for necessary
witnesses to attend the hearing, 33 U.S.C. §928(d); 20 C.F.R. §702.135,
and such reimbursement does not require that witnesses demonstrate a loss of
earnings. That some people might regard a trip to Phoenix as a vacation also is
irrelevant. Moreover, the administrative law judge's specific reference to
counsel's failure to minimize the hours of travel in this case by requesting a
hearing in Los Angeles, California, is belied by the record, which unequivocally
establishes that claimant's counsel, before both Judge Burch and the present
administrative law judge, sought to have the hearings scheduled in California. In
both instances, employer's counsel objected to counsel's request in this regard and
claimant's requests for hearings in California were thereafter denied by the
administrative law judges. Accordingly, reasonable travel expenses for necessary
witnesses cannot be denied on this basis. Finally, whether claimant could have
used local counsel to depose Dr. Laden is purely speculative, and this finding is
not based on the proper test. Claimant's counsel is entitled to be reimbursed for
reasonable expenses for work which was reasonably necessary at the time it was
performed. Specifically, claimant's attorney is entitled to reimbursement of
reasonable travel expenses and a fee for his travel time which may be awarded where
the travel is necessary, reasonable and in excess of that normally considered to
be part of the overhead. O'Kelley v. Dep't of the Army/NAF, 34 BRBS
39 (2000); Ferguson, 27 BRBS 16. Accordingly, due to the administrative law
judge's failure to consider counsel's entitlement to costs pursuant to the Act and
its regulations, we vacate his reductions of claimant's costs and remand this issue
for further consideration. Parks v. Newport News Shipbuilding & Dry Dock
Co., 32 BRBS 90 (1998), aff'd mem. 202 F.3d 259 (4th Cir.
1999)(table).
Accordingly, the administrative law judge's Amended Supplemental Decision and
Order disallowing an additional four hours of unidentified services and reducing
Dr. Capen's costs by an additional $500 are reversed. The administrative law
judge's award of an hourly rate of $250 and of 87 compensable hours are affirmed.
In all other respects, the administrative law judge's Supplemental Decision and
Order and Amended Supplemental Decision and Order are vacated insofar as they reduce claimant's fee and costs
without adequate explanation, and the case is remanded for further proceedings
consistent with this opinion.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)Claimant underwent surgery and was deemed able to return to
work as of May 18, 2000; following vocational rehabilitation training, claimant
obtained employment as an air conditioning mechanic.
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2)The administrative law judge thereafter approved a settlement
pursuant to Section 8(i), 33 U.S.C. §908(i), wherein the parties agreed that
claimant would receive an immediate payment of $85,000, an additional payment of
$10,000 upon his completition of a vocational rehabilitation program, and future
medical expenses.
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3)In his first fee petition, dated April 10, 2001, claimant's
attorney requested a fee of $60,710.52, representing 197 hours at $250 per hour
plus expenses of $11,460.52. Claimant later conceded to the administrative law
judge that he had inadvertently miscalculated the number of hours in his Statement
of Services and that the number of hours requested should have been 143.
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4)Employer does not challenge the administrative law judge's
award of a rate of $250 per hour for counsel's services, nor has it appealed the
finding of 87 compensable hours. Accordingly, these findings are affirmed.
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5)The administrative law judge wrote
I thought that my approval of fees made it reasonably clear to
Claimant's counsel that in my opinion, I was being rather generous.
Lest he not get the message again let me say bluntly, that a further
request for reconsideration on the record as it now stands will elicit
an even stronger negative response.
Amended Supplemental Decision at 4.
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6)It is uncontested that claimant's counsel and Dr. Capen,
claimant's treating orthopedic surgeon, both practice in California and that Dr.
Capen accompanied counsel to Arizona for both scheduled hearings.
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7)In making reductions in travel expenses associated with the
deposition of Dr. Ladin, the administrative law judge found excessive the air fare,
car rental, and overnight stay at a resort hotel which he found demonstrated a
disregard for "economy in expenses." See Supplemental Decision at 2.
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NOTE: This is an UNPUBLISHED LHCA Document.
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