BASIMA ALI KADIM (Mother of RAGHDAN FADHIL MUHAMMAD, deceased) Claimant-Respondent v. SALLYPORT GLOBAL SERVICES and CONTINENTAL CASUALTY COMPANY Employer/Carrier- Petitioners
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
DATE ISSUED: Feb. 12, 2014 DECISION and ORDER
Appeal of the Supplemental Decision and Order Award of Attorney’s Fee of Daniel F. Solomon, Administrative Law Judge, United States Department of Labor.
Agnieszka M. Fryszman and Thomas N. Saunders (Cohen Milstein Sellers & Toll, PLLC), Washington, D.C., for claimant.
Gregory Sujack (Law Offices of Edward J. Kozel), Chicago, Illinois, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, McGRANERY and BOGGS, Administrative Appeals Judges.
Employer appeals the Supplemental Decision and Order Award of Attorney’s Fee (2010-LDA-00538) of Administrative Law Judge Daniel F. Solomon 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 law. Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
On October 29, 2006, Raghdan Fadhil Muhammad (decedent) died while in the course of his work as a translator for employer in Iraq. Following his death, employer, through its carrier, conducted an investigation into potential survivors who might be entitled to compensation under the Act. Based on employer’s representations, the district director found, pursuant to Section 9 of the Act, 33 U.S.C. §909, that decedent did not leave any eligible survivors. 1 A subsequent investigation, however, discovered decedent’s mother (hereinafter claimant) to be the decedent’s dependent and she, on November 30, 2009, filed a claim for death benefits under the Act.
By Order dated May 12, 2011, the administrative law judge: 1) denied employer’s motion for summary decision; 2) granted partial summary decision for claimant, establishing the timeliness of the claim and claimant’s status as decedent’s dependent entitled to compensation under the Act; 3) retained jurisdiction over all other matters; 4) set a hearing date; and 5) referred claimant’s Section 31(c), 33 U.S.C. §931(c), claim to the district director for further investigation. See Order Granting Partial Summary Decision at 10. After employer withdrew its controversion of the claim, see 20 C.F.R. §702.351, the parties stipulated to decedent’s average weekly wage, and the administrative law judge canceled the formal hearing and remanded the case to the district director. The administrative law judge retained jurisdiction to entertain a petition for an attorney’s fee.
On October 19, 2011, claimant’s counsel filed with the administrative law judge a petition seeking an attorney’s fee of $40,551.60, representing approximately 148 hours of services at hourly rates ranging from $140 to $435, and costs of $6,372.69, pursuant to Section 28 of the Act, 33 U.S.C. §928. Employer requested several extensions of time in order to file objections, but did not submit a response to the fee petition. After reducing the $140 hourly rate to $100 and denying itemized entries found to be clerical, the administrative law judge, in his Order dated March 15, 2013, awarded claimant’s counsel an attorney’s fee, payable by employer, of $38,149.40, plus $6,372.69 in expenses.
In the interim between the filing of claimant’s counsel’s fee petition with the administrative law judge and the issuance of the administrative law judge’s fee award, the parties engaged in negotiations to settle the claim for death benefits, commutation thereof, see 33 U.S.C. §§908(i), 909(g), and claimant’s counsel’s attorney fee. The parties ultimately reached an agreement and submitted an application for approval of a Section 8(i), 33 U.S.C. §908(i), settlement to the district director. Under the proposed agreement, decedent’s mother was to receive a lump sum payment of $32,484.48, and her attorneys would receive a fee of $29,098.66. The parties requested that the fee petition pending before the administrative law judge be dismissed as moot.
On March 27, 2013, three months after the settlement agreement was submitted for approval, and after the administrative law judge had issued his fee award, the district director disapproved the settlement agreement. He determined it had not been properly submitted as the parties had failed to provide claimant with a translated version of the settlement agreement or to obtain claimant’s signature. See 20 C.F.R. §§702.242-243.
On appeal, employer challenges the administrative law judge’s award of an attorney’s fee. Claimant responds, urging affirmance of the attorney’s fee award. Employer has filed a reply brief. The issues employer raises on appeal are the same as those raised and addressed by the Board in Khudhaier v. Sallyport Global Services, BRB No. 13-0342 (Feb. 7, 2014). For the reasons stated therein, we vacate the administrative law judge’s award of an attorney’s fee and remand the case for further proceedings consistent with Khudhaier.
Accordingly, the administrative law judge’s Supplemental Decision and Order Award of Attorney’s Fee is vacated, and the case is remanded for further action consistent with this opinion.
_________________________________ NANCY S. DOLDER, Chief
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
JUDITH S. BOGGS
Administrative Appeals Judge
1. The district director thus issued a Compensation Order on June 16, 2009, for employer to pay funeral expenses and $5,000 into the Special Fund pursuant to Section 44(c)(1) of the Act, 33 U.S.C. §944(c)(1). Employer complied with the district director’s Order and subsequently applied for and received reimbursement under the War Hazards Compensation Act, 42 U.S.C. §1701 et seq.