BRB No. 01-0801
RONALD L. JACOBSON )
)
Claimant-Petitioner )
)
v. )
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MARINE TERMINALS CORPORATION ) DATE ISSUED: 06/19/2002
)
and )
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MAJESTIC INSURANCE COMPANY )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Compensation Order - Approval of Attorney Fee of Karen P.
Staats, District Director, United States Department of Labor.
Charles Robinowitz, Portland, Oregon, for claimant.
Before: SMITH, McGRANERY and HALL, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Compensation Order - Approval of Attorney Fee (Case Nos.
14-117567, 14-121224) of District Director Karen P. Staats 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).
Claimant, a general class B longshoreman who obtained work off employer's
casual board, injured his neck in 1994 and his neck, left upper limb, low back,
left buttock, and left posterior thigh in 1996 at work. Additionally, claimant
developed a psychological injury associated with the pain suffered from these work
injuries. The administrative law judge awarded claimant various periods of
temporary total and partial disability and permanent partial disability benefits,
as well as medical benefits for his work injuries.
Claimant's counsel subsequently submitted a fee petition to the district
director, requesting an attorney's fee of $9,981.25, representing 47.25 hours of
attorney services performed at $200 per hour and 6.25 hours of legal assistant time
at $85 per hour. Employer objected to claimant's counsel's fee request. Claimant's counsel
additionally requested $350, representing 1.75 hours at $200 per hour for time
spent responding to employer's objections. The district director awarded
claimant's counsel the sum of $9,868.75, representing 18.5 hours at $175 per hour
for attorney services performed in 1995 and 1996, 30.5 hours at $200 per hour for
attorney services performed in 1998-2001, and 6.25 hours of legal assistant time
at $85 per hour.
On appeal, claimant's counsel solely challenges the district director's award of $175 per hour for the 18.5 hours
of attorney services performed in 1995 and 1996. Employer has not responded to this appeal.
Claimant's counsel contends that the district director erred in awarding him
his historical rate of $175 per hour for services performed in 1995 and 1996 in
accordance with the holding in Hobbs v. Director, OWCP, 820 F.2d 1528 (9th
Cir. 1987), when he requested his current rate of $200 for all services to
compensate for the delay in payment. The Board has held that enhancement for delay
in payment is appropriate for fees awarded under Section 28 of the Act, 33 U.S.C.
§928. See Nelson v. Stevedoring Services of America, 29 BRBS 90 (1995).
Both the Board and the United States Court of Appeals for the Ninth Circuit, in
whose jurisdiction this case arises, have held that when enhancement for delay in
payment of an attorney's fee is timely raised, the administrative body awarding the
fee must address the appropriateness of augmenting the fee award for delay in
payment. See Johnson v. Director, OWCP, 183 F.3d 1169, 33 BRBS 112(CRT)
(9th Cir. 1999); Anderson v. Director, OWCP, 91 F.3d 1322, 30 BRBS 67(CRT)
(9th Cir. 1996); Allen v. Bludworth Bond Shipyard, 31 BRBS 93 (1997).
In the instant case, the district director awarded claimant's counsel $175 per
hour for services performed in 1995 and 1996, relying in part on the holding in
Hobbs, 820 F.2d 1528, that the hourly rate in effect at the time services
were rendered should be awarded. The district director also awarded the hourly
rate of $175 for the 1995 and 1996 hours because she had awarded that hourly rate
to claimant's prior counsel for his 1995 hours and felt compelled to award the same
amount to claimant's present counsel. Although the holding in Hobbs, 820
F.2d 1528, has been superseded by Anderson, 91 F.3d 1322, 30 BRBS 67(CRT),[1] claimant has not shown that the district director
abused her discretion in awarding claimant's counsel $175 per hour for the 1995 and
1996 hours. See generally Story v. Navy Exch. Serv. Ctr., 33 BRBS 111
(1999).
Specifically, claimant's counsel concedes on appeal that $175 is his
historical rate. However, he did not request from the district director an
enhancement for the delay in payment of a fee, in either his fee petition or his
response to employer's objections. In his fee request before the district
director, claimant's counsel asserted that his current rate was $225 per hour,
stating in relevant part,
My hourly rate for legal services on cases of this type is $225 per hour
at the present time. I feel this rate is reasonable and customary on
claims of this type for someone of my experience and training in the
Portland, Oregon community. Because I could have filed this affidavit
earlier and was waiting for this claim to conclude, I am requesting only
$200 per hour for my time for these services.
Clt. Affidavit of Attorney Fees at 5. In counsel's response to employer's
objections to his hourly rate, he merely pointed out that 1994 Oregon state bar
surveys are not applicable to 1998 and 1999 fees, that the Board has consistently
awarded $200 per hour for services performed before it since 1998, and that in
2000, one administrative law judge in Portland had awarded $200 per hour, recognizing
it as the prevailing rate. Clt. Response to Carrier's Attorney Fee Objection at 1-2. Enhancement for delay
need not be awarded unless it is requested of the administrative body awarding the
fee. See Johnson, 183 F.3d 1169, 33 BRBS 112(CRT); Anderson, 91 F.3d
1322, 30 BRBS 67(CRT); Nelson, 29 BRBS 90. As claimant's counsel did
not request enhancement, the district director did not err in using counsel's
historic hourly rate. Consequently, we affirm the district director's fee award.
Accordingly, the Compensation Order of the district director is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
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Footnotes.
1)In Anderson, 91 F.3d at 1324, 30 BRBS at 68(CRT), the
Ninth Circuit stated, "our decision in Hobbs regarding the availability of
delay awards is no longer good law in this circuit."
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NOTE: This is an UNPUBLISHED LHCA Document.
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