Skip to page content
Benefits Review Board
Bookmark and Share

                                   BRB No. 00-0483

FRANCIS L. HOLMES                       )
          Claimant-Petitioner           )
     v.                                 )
NORFOLK SHIPBUILDING AND                )    DATE ISSUED:   02/02/2001
DRY DOCK CORPORATION                    )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Supplemental Decision and Order Awarding Attorney Fees of 
     Fletcher E. Campbell, Jr., Administrative Law Judge, United States
     Department of  Labor.

     John H. Klein (Montagna, Klein & Camden L.L.P.), Norfolk, Virginia, for

     Robert A. Rapaport (Clarke, Dolph, Rapaport, Hardy & Hull, P.L.C.),
     Norfolk, Virginia, for self-insured employer.

     Before: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.


     Claimant appeals the Supplemental Decision and Order Awarding Attorney Fees
(98-LHC-0378) of Administrative Law Judge Fletcher E. Campbell, Jr., 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 Muscella v. Sun Shipbuilding & Dry Dock Co.,
12 BRBS 272 (1980).  

     Claimant sought benefits under the Act for work-related, bilateral carpal
tunnel syndrome.  The case was transferred to the Office of Administrative Law
Judges on November 17, 1997.   Before a formal hearing was held, however, the
parties agreed to dispose of the claim by way of stipulations; thus, on July 22,
1998, the administrative law judge remanded the case to the district director.  On
January 13, 1999, the district director issued a Compensation Order, based on the
parties' stipulations, awarding claimant temporary total and temporary partial
disability benefits for various periods, and permanent partial disability benefits
for a five percent loss of use of each upper extremity.  33 U.S.C. §908(c)(1),
(b), (e).  The district director credited employer with the $34,784.61 it had
already paid to claimant of the $37,784.49 awarded, and therefore ordered employer
to pay claimant $2,999.88, and to continue to pay claimant medical benefits  under
Section 7 of the Act, 33 U.S.C. §907.   In a Compensation Order issued on July
26, 1999, the district director approved the parties' settlement agreement pursuant to
Section 8(i) of the Act, 33 U.S.C. §908(i).  Employer paid claimant an
additional $8,500 in settlement of claimant's claim for disability and medical
benefits. Claimant's attorney received a fee of $1,000 as a result of this
settlement agreement.

     Claimant's counsel subsequently filed a fee petition for work performed before 
the administrative law judge, requesting a fee of  $2,124.50, plus costs of $49.[1]  In his Supplemental Decision and Order Awarding
Attorney Fees, the administrative law judge reduced the hourly rate sought by
claimant's counsel to $165 per hour, reduced the paralegal hourly rate to $55 an
hour, and reduced the attorney time requested by one hour. The administrative law
judge thus awarded claimant's counsel a fee of $1,630.25, representing 8.25 hours
of attorney services, four hours of paralegal services, and $49 for expenses.

     Claimant's sole contention on appeal is that the administrative law judge
erred in reducing the attorney hourly rate from $200  to $165 per hour.  Employer
responds, urging affirmance.  

     The administrative law judge found that considering  the degree of skill with
which claimant was represented, the amount of time involved, the risk of loss, and
"other relevant factors," an hourly attorney rate of $165 is reasonable. See
20 C.F.R. §702.132.  After consideration of claimant's contentions on appeal,
we affirm the hourly rate awarded to counsel by the administrative law judge, as
claimant has not shown that the administrative law judge abused his discretion in
this regard. See generally Finnegan v. Director, OWCP, 69 F.3d 1039, 29 BRBS
121(CRT) (9th Cir. 1995); O'Kelley v. Dep't of the Army/NAF,  34 BRBS 39 (2000);
Parks v.  Newport New Shipbuilding & Dry Dock Co., 32 BRBS 90 (1998), aff'd
mem., 202 F.3d 259 (4th Cir. 1999) (table).  That employer did not object to
the hourly rate requested does not require the administrative law judge to award
the rate requested, if, in view of relevant factors, he reasonably determines a
lower hourly rate is warranted.  Similarly, the award of an hourly rate of $200 in
other cases does not bind the administrative law judge in the instant case. See
33 U.S.C. §928.  Consequently, we affirm the administrative law judge's
award of an attorney's fee.

     Accordingly, the administrative law judge Supplemental Decision and Order
Awarding Attorney Fees is affirmed.


                         ROY P. SMITH
                         Administrative Appeals Judge

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

To Top of Document


1)This represents .25 hour of paralegal services at $63 per hour, 3.75 hours of paralegal services at $75 per hour, .75 hour of attorney services at $170 per hour, and 8.5 hours of attorney services at $200 per hour. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document