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                                   BRB No. 01-0659

CHARLENE DAVIS                          )
                                        )
          Claimant-Respondent           )
                                        )
       v.                               )
                                        )    DATE ISSUED:   05/07/2002

AVONDALE INDUSTRIES,                    )
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER


     Appeal of the Decision and Order on Remand of Richard D. Mills,
     Administrative Law Judge, United States Department of Labor.

     Joseph G. Albe, Metairie, Louisiana, for claimant.

     Christopher M. Landry (Blue Williams, L.L.P.), Metairie, Louisiana, for
     self-insured employer.

     Before:  SMITH, McGRANERY and HALL,  Administrative Appeals Judges.

     SMITH, Administrative Appeals Judge:

     Employer appeals the Decision and Order on Remand (1996-LHC-2209) 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
law. Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).

     Claimant injured her back during the course of her employment in 1993. 
Employer voluntarily paid claimant temporary total disability benefits for various
periods between 1993 and 1995 and again commencing in 1998.  In the case on the
merits, the administrative law judge awarded claimant future medical benefits for
psychiatric treatment and a combined total of $736.50 for a Section 14(e), 33
U.S.C. §914(e), penalty and interest.  He denied claimant's claim for past
medical benefits and continuing disability compensation.  In a supplemental
decision, the administrative law judge awarded claimant's counsel a fee for 155
hours of services at a rate of $150 per hour, but he reduced the fee by one-third
due to claimant's limited success, ultimately awarding a total fee of $15,500.[1]   Employer appealed, and the Board held that
employer is liable for claimant's attorney's fee under Section 28(b), 33 U.S.C.
§928(b), because claimant obtained additional medical benefits and a penalty
and interest.  However, the Board vacated the fee award and remanded the case for
the administrative law judge to address the extent to which counsel's efforts, as
opposed to those of the administrative law judge, played a role in claimant's
success.  Further, the Board remanded for the administrative law judge to explain
his rationale for reducing the fee by one-third and to determine whether such a
reduction was sufficient in light of claimant's limited success, citing Hensley
v. Eckerhart, 461 U.S. 424 (1983). Davis v. Avondale Industries, Inc., BRB Nos.
00-345/A (Dec. 8, 2000).

     On remand, the administrative law judge determined that claimant's award was
the result of a combination of counsel's efforts and the administrative law judge's
application of the law, as "without counsel's diligent work . . . the Court would
not have heard the case."  Decision and Order on Remand at 2.  Thus, the
administrative law judge concluded that counsel's efforts were "intimately related"
to claimant's success. Id. at 3.  With regard to the one-third reduction,
the administrative law judge reasoned that claimant was successful on four of six
issues, which equates to a success rate of two-thirds; therefore, a reduction by
one-third was warranted.  The administrative law judge specifically stated that a
further reduction in the fee was not necessary.  Consequently, he reaffirmed the
fee award of $15,500. Id. at 3.  Additionally, he awarded counsel a fee of
$800, representing eight hours at a rate of $150 per hour, reduced by a factor of
one-third, for his work on remand. Id. at 4.  Employer appeals, and claimant
responds, urging affirmance.

     Pursuant to the decisions in Hensley v. Eckerhart, 461 U.S. 424 (1983),
and George Hyman Constr. Co. v. Brooks, 963 F.2d 1532, 25 BRBS 161(CRT)
(D.C. Cir. 1992), employer contends the administrative law judge should have denied
claimant a fee or awarded a greatly reduced fee in light of claimant's limited
success.  Specifically, employer argues that the award of a $15,500 fee is
exorbitant in view of the facts that claimant was awarded only future medical
benefits and $736.50 in penalties and interest and because these amounts were
obtained through the efforts of the administrative law judge, and not claimant's
counsel.  The Board previously remanded this case for the  administrative law judge
the address these issues, and on remand,  the administrative law judge further
explained his fee award.  He found that counsel's efforts were key to the award
because counsel provided "invaluable representation" and concluded that, without
counsel's  representation and information, he would not have had reason to hear the
case or to grant future medical benefits or the penalty or interest.  Decision and
Order on Remand at 2-3.  As the administrative law judge found that counsel's
efforts were important to claimant's success, he reaffirmed that a one-third
reduction was sufficient to account for claimant's lack of success. Id. at
3.

     We reject employer's argument that we should interfere with these findings and
order a further reduction in the fee award.  The administrative law judge has great
discretion in compensating counsel for work performed before him. Barbera v.
Director, OWCP, 245 F.3d 282, 35 BRBS 27(CRT) (3d Cir. 2001); General
Dynamics Corp. v. Horrigan, 848 F.2d 321, 21 BRBS 73(CRT) (1st Cir.), cert.
denied, 488 U.S. 992 (1988).  This well-established rule is based on the fact
that the administrative law judge is in the best position to "observe firsthand the
factors affecting [the] analysis of counsel's fee award." Barbera, 245 F.3d
at 289, 35 BRBS at 32(CRT).  In Barbera, Administrative Law Judge Barnett
awarded the claimant medical benefits, but denied him a nominal award as she
believed such an award was precluded by Board law.   Id., 245 F.3d at 285,
288, 35 BRBS at 28, 31(CRT).  In awarding a fee to the claimant's counsel, Judge
Barnett found that claimant successfully prosecuted his claim in the face of 
employer's contesting every issue.  As she determined the case was complex, she
awarded claimant's counsel a fee of $71,247.89, plus $1,060 for defending the fee.
Id., 245 F.3d at 286, 35 BRBS at 29(CRT).  The Board affirmed the denial of
a nominal award, but  vacated the fee award with instructions for the 
administrative law judge to reconsider the amount of the fee in light of
Hensley and claimant's limited success in obtaining only medical benefits. 
In light of the death of Judge Barnett, the case was assigned to Administrative Law
Judge Chapman, who affirmed the number of hours requested in the fee petition but
reduced the requested hourly rates by one-third.  Judge Chapman further reduced
this resulting figure by two-thirds to reflect claimant's limited success.
Id., 245 F.3d at 286, 35 BRBS at 29-30(CRT).  The Board affirmed the reduced
fee awards, and the case was appealed to the United States Court of Appeals for the
Third Circuit.  That court first held that the claimant was entitled to a nominal
award of benefits based on Judge Barnett's findings.  On the issue of the fee
award, the court held that the Board erred in disturbing Judge Barnett's award, as
she was most familiar with the case, she recited appropriate factors in assessing
the propriety of the fee requested, and her findings were supported by substantial
evidence. Id., 245 F.3d at 286, 289-290, 35 BRBS at 30, 32(CRT).  The court
specifically held that Judge Barnett's fee award was consistent with
Hensley, and that the Board did not have a basis for substituting its
opinion for that of Judge Barnett. Id.

     In the present case, employer seeks to have the Board vacate or reverse the
administrative law judge's fee award of $15,500 based on its position that the
award of benefits does not justify such a fee.  We decline to do so.  As stated
previously, the administrative law judge has great discretion in awarding an
attorney's fee.  Many factors come into consideration in awarding a fee, and, as
the court stated in Barbera, the administrative law judge is in the best
position to decide what constitutes appropriate compensation for services rendered
on a claimant's behalf.  Here, the administrative law judge considered the relevant
factors.  First, he considered claimant's success in obtaining future medical
benefits as well as $736.50 in interest and penalties.  Although no dollar figure
is given for the award of future medical benefits, claimant was awarded future
psychiatric treatment.  Such an award cannot be considered insignificant.
Barbera, 245 F.3d at 290, 35 BRBS at 32(CRT) ("by securing future medical
benefits, counsel obtained a substantial benefit" for claimant); see generally
Berezin v. Cascade General, Inc., 34 BRBS 163 (2000);  Parrott v. Seattle
Joint Port Labor Relations Committee of the Pacific Maritime Ass'n, 22 BRBS 434
(1989) (considering future disability award is not unreasonable when awarding fee). 
Moreover, the administrative law judge specifically found that counsel's services
were related to claimant's success, provided the administrative law judge with
necessary information, and allowed him to reach a reasoned conclusion.  Finally,
the administrative law judge acknowledged that claimant was not fully successful,
and he accounted for this partial success by reducing the fee award by one-third. 
This is a reasonable means of adjusting the fee award to account for limited
success. See Hill v. Director, OWCP, 195 F.3d 790, 33 BRBS 184(CRT) (5th
Cir. 1999), cert. denied, 120 U.S. 2215 (2000); Fagan v. Ceres Gulf,
Inc., 33 BRBS 91 (1999).  As the administrative law judge addressed the issues
presented by the Board's order of remand, and as he has fully explained his reasons
for awarding an attorney's fee of $15,500, which is within his discretion, we
affirm the administrative law judge's fee award.

     Employer also contends the administrative law judge erred in awarding counsel
an additional fee of $800 for work performed on remand.  It argues that counsel's
efforts on remand did not affect or protect claimant's interests; therefore, he is
not entitled to a fee for that work.  The administrative law judge found there was
no precedent prohibiting the award of a fee for work performed on remand defending
a fee.  After considering the specific objections, the administrative law judge
awarded a fee for eight hours of work at a rate of $150 per hour.  He then reduced
the fee by one-third, to match the reduction factor of the original fee, and
awarded a fee of $800 for services performed on remand.  Decision and Order on
Remand at 3-4.

      It is well-established that counsel is entitled to an attorney fee for
services performed in defending his entitlement to a fee. Kerns v. Consolidation Coal
Co., 247 F.3d 133 (4th Cir. 2001); Barbera, 245 F.3d at 290, 35 BRBS at 32-33(CRT);
Jarrell v. Newport News Shipbuilding & Dry Dock Co., 14 BRBS 883 (1982). 
In this case, the administrative law judge considered the fee requested, as well
as employer's objections, and awarded a reasonable fee for services performed on
remand in defending the original fee award.  As employer has not demonstrated that
the  administrative law judge abused his discretion and a fee for this work accords
with law, id., we affirm his determination that counsel is entitled to a fee
of $800 for work performed on remand.

     Accordingly, the administrative law judge's fee award, totaling $16,300, is
affirmed.

     SO ORDERED.


                    _______________________________
                    ROY P. SMITH
                    Administrative Appeals Judge

     I concur:
                    _______________________________
                    BETTY JEAN HALL
                    Administrative Appeals Judge


     McGRANERY, Administrative Appeals Judge, dissenting:

     I respectfully dissent from the majority's decision to affirm the
administrative law judge's award of an attorney fee for $15,500 in the case at bar. 
Despite specific direction from the Board to apply 33 U.S.C. §928(b),
authorizing the award of a "reasonable attorney's fee based solely upon the
difference between the amount awarded and the amount tendered or paid . . . ," the
administrative law judge did not even acknowledge in his Decision and Order on
Remand that this is the applicable law.  The difference between the amount awarded
and the amount paid in the instant case is $736.50 in penalties and interest and
future medical benefits.[2] 

     Furthermore, the administrative law judge did not undertake the appropriate
analysis, recognizing that a reasonable attorney's fee compensates counsel only for
work related to the issues on which he prevailed, i.e., penalties, interest
and future medical benefits.  George Hyman Constr. Co. v. Brooks, 963 F.3d 1532, 25 BRBS
161(CRT)((D.C. Cir. 1992).  In his Decision and Order on Remand, the administrative law judge also failed to acknowledge
that he supplied the legal theory on which those awards were based, which his prior decision demonstrates.  Decision and
Order at 24, 27, 28.

     Finally, the administrative law judge failed to tailor the attorney's fee award to counsel's limited success, as the Fifth
Circuit directed in Ingalls Shipbuilding, Inc. v. Director, OWCP [Baker], 991 F.2d
163, 166, 27 BRBS 14, 16(CRT) (5th Cir. 1993), applying the Supreme Court's teaching
in Hensley v. Eckerhart, 461 U.S. 424 (1983) and Farrar v. Hobby, 506
U.S. 103 (1992), and as the statute makes abundantly clear: "a reasonable
attorney's fee [shall be awarded] based solely upon the difference between the
amount awarded and the amount tendered or paid . . ."  33 U.S.C. §928(b). 
Accordingly, I would vacate the attorney's fee award of $15,500 and remand the case
for the administrative law judge to award an attorney's fee in accordance with
Section 28(b) of the Longshore Act and the courts' teaching in Hensley,
Farrar,  Brooks and Ingalls Shipbuilding.





                                                                           
    
                    REGINA C. McGRANERY
                    Administrative Appeals Judge


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Footnotes.


1)The administrative law judge denied employer's motion for reconsideration of the fee award as well as claimant's motion for modification of the fee award to include interest on that award. Orders (April 5, 2000; Nov. 23, 1999). Back to Text
2)Employer does not contend that future medical benefits cannot support an attorney's fee award under Section 28(b), although that is an "open question" in the courts. Barker v. U.S. Department of Labor, 138 F.3d 431, 439, 32 BRBS 171, 177(CRT)(1st Cir. 1998). Future medical benefits will clearly support an attorney's fee award under Section 28(a), which does not have the restrictive language of Section 28(b)("based solely upon the difference. . ."). See Ingalls Shipbuilding, Inc. v. Director, OWCP, 991 F.2d 163, 27 BRBS 14(CRT) (5th Cir. 1993). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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