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                                 BRB No. 92-1333

ALBERT R. NICHOLSON                     )
                                        )
          Claimant-Respondent           )
                                        )
       v.                               )
                                        )    DATE ISSUED:   03/24/1995
INGALLS SHIPBUILDING,                   )
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER


     Appeal of the Supplemental Decision and Order Awarding Attorney Fees of
     Richard D. Mills, Administrative Law Judge, United States Department of
     Labor.

     John F. Dillon (Maples & Lomax, P.A.), Pascagoula, Mississippi, for
     claimant.

     Paul M. Franke, Jr. (Franke, Rainey & Salloum), Gulfport, Mississippi,
     for self-insured employer.

     Before:  SMITH, BROWN and DOLDER, Administrative Appeals Judges.

     PER CURIAM:

     Employer appeals the Supplemental Decision and Order Awarding Attorney Fees
(89-LHC-2576) of Administrative Law Judge Richard D. Mills 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 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. Muscella v. Sun Shipbuilding & Dry Dock,
Inc., 12 BRBS 272 (1980).

     Claimant filed a claim for his work-related hearing loss in 1987, and employer
controverted the claim. Cl. Exs. 4-5, 8-9; Emp. Exs. 2-3; Jt. Ex. 1.  At the
hearing, the parties stipulated that employer accepted liability for medical
benefits, and the remaining issues were the extent of claimant's disability and
employer's liability for an attorney's fee. Jt. Ex. 1.  The administrative law
judge determined that claimant is entitled to 2.9 weeks of benefits for a 5.6
percent monaural impairment to the right ear, pursuant to Section 8(c)(13)(A), 33
U.S.C. §908(c)(13)(A) (1988).  Consequently, he ordered employer to pay
disability benefits, all medical expenses related to claimant's hearing loss, including the cost of the
initial audiometric evaluation, and interest. Decision and Order at 5-6.  In light
of his award, he determined that employer also is liable for an attorney's fee.
Id. at 6.

     Subsequently, claimant's counsel filed a petition for an attorney's fee of
$3,156.25, representing 25.25 hours of services at a rate of $125 per hour, plus
$25.75 in expenses.  The administrative law judge agreed with employer that a rate
of $125 per hour is excessive, and he reduced the hourly rate to $110.  He also
reduced the time approved by 5.375 hours. Supp. Decision and Order at 2-3. 
Accordingly, he held employer liable for an attorney's fee in the amount of
$2,186.25, plus expenses. Id. at 3.  Employer appeals the fee award,
incorporating the arguments it raised below, and claimant responds, urging
affirmance.

     Initially, employer contends the fee award should be reduced because counsel's
efforts before the administrative law judge resulted in only a nominal award. 
Additionally, employer asserts that the doctrine of de minimis non curat
lex. applies to this case.  We decline to address these arguments as employer
failed to raise these issues before the administrative law judge and cannot raise
them now for the first time on appeal.[1]  Ross
v. Ingalls Shipbuilding, Inc., ___ BRBS ___, BRB No. 92-2247 (Feb. 22, 1995);
Bullock v. Ingalls Shipbuilding, Inc., 27 BRBS 90 (1993) (en banc)
(Brown and McGranery, JJ., concurring and dissenting), modified on other grounds
on recon. en banc, 28 BRBS 102 (1994), aff'd in pertinent part mem. sub nom.
Ingalls Shipbuilding, Inc. v. Director, OWCP [Biggs], No. 94-40066 (5th Cir.
Jan. 12, 1995) (unpublished); Hoda v. Ingalls Shipbuilding, Inc., 28 BRBS
197 (1994) (McGranery, J., dissenting).

     Next, employer argues that the lack of complexity of the instant case mandates
a reduction in the amount of the fee awarded to claimant's counsel.  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 the
award of any attorney's fee shall be reasonably commensurate with the necessary
work performed and shall take into account the quality of the representation, the
complexity of the issues, and the amount of benefits awarded. See generally
Parrott v. Seattle Joint Port Labor Relations Committee of the Pacific Maritime
Ass'n, 22 BRBS 434 (1989).  While the complexity of the issues should be
considered by the administrative law judge, it is only one of the relevant factors.
See generally Thompson v. Lockheed Shipbuilding & Construction Co., 21 BRBS
94 (1988).  In this case, the administrative law judge agreed with employer's
objection that the requested hourly rate of $125 was too high in light of the lack
of complex issues, and he awarded an hourly rate of $110.  We reject employer's
argument on appeal that the fee should be further reduced based on this criterion. 
Employer has not satisfied its burden of showing that the administrative law judge
abused his discretion in awarding a fee based on an hourly rate of $110, and we
affirm the administrative law judge's finding.[2]
Ross, slip op. at 3; Watkins v. Ingalls Shipbuilding, Inc., 26 BRBS
179 (1992), aff'd mem., No. 93-4367 (5th Cir. Dec. 9, 1993); LeBatard v.
Ingalls Shipbuilding Div., Litton Systems, Inc., 10 BRBS 317 (1979).

     Employer also objects to counsel's use of the quarter-hour minimum billing
method.  A review of counsel's petition reveals that he did not limit himself to
the quarter-hour minimum billing method.  Moreover, the administrative law judge
reduced entries for time spent reviewing letters on three different dates from 
one-quarter hour to one-eighth hour in compliance with the unpublished fee order
rendered by the United States Court of Appeals for the Fifth Circuit in Ingalls
Shipbuilding, Inc. v. Director, OWCP [Fairley], No. 89-4459 (5th Cir. July 25,
1990).[3]   See also Ingalls Shipbuilding, Inc.
v. Director, OWCP [Biggs], No. 94-40066 (5th Cir. Jan. 12, 1995) (unpublished);
Ross, slip op. at 3.  Therefore, these entries need not be further reduced.

     Finally, employer makes specific contentions regarding time allowed for review
of the file, medical reports, and orders, for preparation, filing and review of
discovery documents, for trial preparation, and for preparation and attendance at
a deposition.  The administrative law judge agreed with many of the objections and
reduced the time requested by 5.375 hours.  Because employer has failed to show an
abuse of discretion by the administrative law judge in awarding time for these
services, having specifically considered employer's objections, we reject these
item-specific contentions and decline to further reduce the administrative law
judge's award. See generally Watkins, 26 BRBS at 182; Mijangos v.
Avondale Shipyards, Inc., 19 BRBS 15 (1986), rev'd on other grounds, 948
F.2d 941, 25 BRBS 78 (CRT) (5th Cir. 1991).

     Accordingly, the administrative law judge's Supplemental Decision and Order
is affirmed.

     SO ORDERED.



                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge


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Footnotes.


1)Employer's argument regarding the doctrine of de minimis non curat lex. relies on an unpublished Board decision which cannot serve as authority because unpublished decisions lack precedential value. Poole v. Ingalls Shipbuilding, Inc., 27 BRBS 230 (1993); Lopez v. Southern Stevedores, 23 BRBS 295, 300 n. 2 (1990). Back to Text
2)Additionally, we reject employer's argument that the administrative law judge must base his fee award in this case upon the decision rendered by another administrative law judge in Cox v. Ingalls Shipbuilding, Inc., 88-LHC-3335 (September 5, 1991), as fees for legal services must be approved at each level of the proceedings by the tribunal before which work was performed. 33 U.S.C. §928(c); Ross, slip op. at 3 n.4; Wood v. Ingalls Shipbuilding, Inc., 28 BRBS 156, modifying in part on recon. 28 BRBS 27 (1994). Back to Text
3)The Fifth Circuit recently held that its unpublished fee order rendered in Fairley is considered circuit precedent which must be followed. Ingalls Shipbuilding, Inc. v. Director, OWCP [Biggs], No. 94-40066 (5th Cir. Jan. 12, 1995) (unpublished). In Fairley, the court held that attorneys, generally, may not charge more than one-eighth hour for reading a one-page letter and one-quarter hour for preparing a one-page letter. Fairley, slip op. at 2. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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