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                                 BRB Nos. 92-0833
                                   and 93-1434

CECIL MASK                              )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
KAISER STEEL CORPORATION                )    DATE ISSUED:   06/23/1995
                                        )
     and                                )
                                        )
TRANSAMERICA INSURANCE                  )
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeals of the Supplemental Decision and Order - Awarding Attorney's
     Fees of Vivian Schreter-Murray, Administrative Law Judge, United States
     Department of Labor, and the Award of Attorney Fees of Edward Orozco,
     District Director, United States Department of Labor.

     Victoria Edises (Kazan, McClain, Edises & Simon), Oakland, California,
     for claimant.

     Roger A. Levy (Laughlin, Falbo, Levy & Moresi), San Francisco,
     California, for employer/carrier.

     Before:  HALL, Chief Administrative Appeals Judge, BROWN and McGRANERY,
     Administrative Appeals Judges.

     PER CURIAM:

     Claimant appeals the Supplemental Decision and Order - Awarding Attorney's
Fees (90-LHC-2533) of Administrative Law Judge Vivian Schreter-Murray, and the
Award of Attorney Fees (Case No. 14-89156) of District Director[1]  Edward Orozco 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).[2]   The amount of an attorney's fee 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 Roach v.
New York Protective Covering Co., 16 BRBS 114 (1984); Muscella v. Sun
Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).

     Claimant worked for employer as a welder from 1942 to 1945, during which time
he was exposed to asbestos.  He voluntarily retired in 1975.  On August 30, 1984,
claimant was diagnosed as suffering from restrictive lung disease.  Claimant
subsequently filed a claim for benefits under both the Act and the state workers'
compensation statute.  At the hearing before the administrative law judge on
September 23, 1991, the parties entered into a settlement agreement, wherein
employer accepted liability for claimant's continuing medical benefits.  The
administrative law judge approved the settlement on October 1, 1991.

     Claimant's counsel subsequently submitted a fee petition to the administrative
law judge requesting an attorney's fee of $8,632.50, representing 47.9 hours of
legal services performed at an hourly rate of $175, and $250 for services rendered
by paralegals,  as well as $725 in expenses.  Employer thereafter submitted
specific objections to counsel's fee request.  In her Supplemental Decision and
Order - Awarding Attorney's Fees, the administrative law judge considered
employer's specific objections to the fee request, reduced the hourly rate sought
to $155, reduced the hours sought by counsel to 40.25, approved the charges for
counsel's paralegal services, disallowed the requested expenses until counsel
provided documentation, and thereafter awarded counsel a fee of $6,488.75.

     Claimant's counsel also filed a fee petition for work performed before the
district director in which she requested an attorney's fee of $5,110.25,
representing 30.35 hours of legal services performed by claimant's lead counsel at
an hourly rate of $150, 2.35 hours of legal services performed by claimant's
associate counsel at an hourly rate of $125,  1.4 hours of services performed by
a law clerk at an hourly rate of $85, and 2.9 hours of services performed by
counsel's paralegals at an hourly rate of $50.  Employer submitted specific
objections to the fee petition.  In his Award of Attorney Fees issued on March 26,
1993,  the district director considered employer's specific objections to the fee
petition and reduced the number of hours sought by claimant's lead counsel to 23.5,
reduced the hourly rate sought for services performed by claimant's associate
counsel to $100, reduced the hourly rate sought for services performed by counsel's
law clerk  to $60, and disallowed the charges sought for paralegal services, with
the exception of $75 allowed for paralegal services performed by Jena McLemore and
$10 for services performed by paralegal Alan Siraco.  The district director
thereafter awarded counsel a fee of $3,929.

     On appeal, claimant challenges the reductions in the attorney's fee petitions
ordered by both the administrative law judge and the district director.  Employer
responds, urging affirmance of both fee awards.

     Initially, claimant, in both appeals, challenges the reductions made in the
hourly rates sought.  Specifically, claimant asserts that the administrative law
judge erred in reducing the hourly rate sought by claimant's lead counsel to $155,
since the instant claim was complex and the rate awarded is not commensurate with
counsel's qualifications.  Similarly, claimant challenges the  hourly rates awarded
by the district director to associate counsel, $100, and counsel's law clerk,  $60, 
asserting that the awarded rates do not account for the legal experience of these
providers.

     The complexity of legal issues is but one factor to be considered when
awarding an attorney's fee. See 20 C.F.R. §702.132; Thompson v.
Lockheed Shipbuilding & Construction Co., 21 BRBS 94 (1988).  In the instant
case, the administrative law judge specifically considered the complexity of the
legal issues, as well as claimant's lead counsel's qualifications, in finding that
an hourly rate of $155 was commensurate with the services performed.  In addressing
the hourly rate, the district director similarly considered the qualifications of
claimant's associate counsel and paralegal in awarding their respective hourly
rates.  Inasmuch as claimant's  assertions that counsel's qualifications require
a higher hourly rate are insufficient to meet his burden of proving the hourly
rates awarded by the administrative law judge and district director were
unreasonable, we affirm the rates awarded by the administrative law judge and the
district director. See Ferguson v. Southern States Cooperative, 27 BRBS 16
(1993); Watkins v. Ingalls Shipbuilding, Inc., 26 BRBS 179 (1993), aff'd
mem., 12 F.3d 209 (5th Cir. 1993).

     Claimant next contends that both the administrative law judge and the district
director erred in reducing the hours requested in the respective attorney's fee
petitions filed with each official.  Specifically, claimant contends that the
number of hours requested were not excessive, that services should be approved at
the minimum billing rate, and that billing for the preparation of internal
memoranda should be compensable.  An attorney's fee must be awarded in accordance
with Section 28 of the Act, 33 U.S.C. §928, and the applicable regulation, 20
C.F.R. §702.132, which provides that any attorney's fee approved shall be
reasonably commensurate with the necessary work done, the complexity of the legal
issues involved, and the amount of benefits awarded. See generally Ross v.
Ingalls Shipbuilding, Inc.,  29 BRBS 42 (1995);  Parrott v. Seattle Joint
Port Labor Relations Committee of the Maritime Ass'n, 22 BRBS 434 (1989).  

     In her Supplemental Decision and Order, the administrative law judge reduced
the time requested by claimant's lead counsel for the review of correspondence, and
disallowed the entries for such activities as calendaring of dates, leaving of
phone messages for the person to return her call, and time spent on inter-office
memoranda to paralegals.  The administrative law judge further reduced the
requested number of hours by 5.35 for services that she found to be inadequately
explained in the fee petition.  Thus, the administrative law judge reduced
claimant's counsel's billable hours from 47.9 to 40.25.  In his Award of Attorney
Fees, the district director:  disallowed time spent on services that were
duplicative of the state workers' compensation claim;[3]  disallowed entries that he deemed part of counsel's overhead,
including time spent on inter-office memoranda; reduced the time requested for the
review of ordinary correspondence; and disallowed the entries for services
performed by counsel's paralegals as being clerical in nature and part of counsel's
overhead,[4]  with the exception of $85 allowed for
services performed by two paralegals.  The district director thus reduced the hours
sought by claimant's counsel from 30.35 to 23.5.  

     We hold that claimant's assertions on appeal are insufficient to meet his
burden of proving that the administrative law judge and district director abused
their discretion in reducing the number of requested hours in the fee petitions.
See Maddon v. Western Asbestos Co., 23 BRBS 55 (1989); Cabral v. General
Dynamics Corp., 13 BRBS 97 (1981).  In each instance, both the administrative
law judge and the district director set forth the rationale upon which they relied
in reducing the number of hours sought by counsel.  Moreover, in contending that
the administrative law judge and the district director erred in reducing various
requested quarter-hour entries, claimant's reliance on Neeley v. Newport News
Shipbuilding & Dry Dock Co., 19 BRBS 138 (1986), is misplaced.  While the Board
has held that use of a quarter-hour minimum billing method is permissible, see
Snowden v. Ingalls Shipbuilding, Inc., 25 BRBS 245 (1991)(Brown, J., dissenting
on other grounds), aff'd on recon. en banc, 25 BRBS 346 (1992)(Brown, J.,
dissenting on other grounds), fees for services deemed excessive may properly be
disallowed. See Davenport v. Apex Decorating Co., Inc., 18 BRBS 194 (1986). 
Accordingly, we affirm the number of hours awarded to counsel by the administrative
law judge and the district director.



     Lastly, we reject claimant's counsel's contention that the fee awards of
Administrative Law Judge Alfred Lindeman in Alexander v. Triple A Machine
Shop, No. 91-LHC-1163 (Feb. 24, 1992), and Administrative Law Judge Joseph
Matera in O'Leary v. Moore Dry Dock, No. 84-LHC-2677 (Aug. 15, 1985),
mandate a different result in the case of the fee awarded by the administrative law
judge herein.  Rather, the determination of the amount of an attorney's fee is
within the discretion of the body awarding the fee based on the circumstances of
the specific case before it. See 20 C.F.R. §702.132.    

     Accordingly, the Supplemental Decision and Order - Awarding Attorney's Fees
of the administrative law judge, BRB No. 92-0833, and the Award of Attorney Fees
of the district director, BRB No. 93-1434, are affirmed.

     SO ORDERED.




                                                                        

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                        

                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                        

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.


1)Pursuant to 20 C.F.R. §702.105, the term "district director" has been substituted for the term "deputy commissioner" used in the statute. Back to Text
2)By Order dated May 25, 1993, the Board consolidated for purposes of decision claimant's appeal of the administrative law judge's Supplemental Decision and Order - Awarding Attorney's Fees, BRB No. 92-0833, and his appeal of the district director's Compensation Order - Award of Attorney Fees, BRB No. 93-1434. 20 C.F.R. §802.104. Back to Text
3)It is well-established that where services are performed in conjunction with a state act, the claimant has the burden of showing both that these services were necessary to establish entitlement under the Act and that claimant's attorney has not previously been compensated for these services under the state act. Roach, 16 BRBS at 116. In the instant case, claimant concedes that his state workers' compensation claim was settled for $25,000, of which claimant's counsel received 15 percent, or $3,750. Claimant's assertion that this amount did not adequately compensate counsel for services rendered in the state action does not meet his burden of establishing that counsel has not been compensated for services under the state act. Back to Text
4)Traditional clerical duties performed by clerical employees are not compensable services for which separate billing is permissible; rather, it must be included as part of counsel's overhead. See Morris v. California Stevedore & Ballast Co., 10 BRBS 375 (1979). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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