Eastern Associated Coal Corp. v. Director, Office of Workers' Compensation Programs

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-2038

EASTERN ASSOCIATED COAL CORPORATION,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS; HAROLD
GOSNELL,

Respondents.

No. 11-2380

EASTERN ASSOCIATED COAL CORPORATION, LLC,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; HAROLD GOSNELL,

Respondents.

On Petitions for Review of Orders of the Benefits Review Board.
(11-0131-BLA; 10-0384-BLA)

Argued: May 14, 2013 Decided: July 31, 2013

Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.
Affirmed as modified by published opinion. Judge Keenan wrote
the opinion, in which Judge Wilkinson and Judge Gregory joined.

ARGUED: Laura Metcoff Klaus, GREENBERG TRAURIG LLP, Washington,
D.C., for Petitioner. Ryan Christopher Gilligan, WOLFE,
WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia, for
Respondents. ON BRIEF: Mark E. Solomons, GREENBERG TRAURIG
LLP, Washington, D.C., for Petitioner. Joseph E. Wolfe, WOLFE,
WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia, for
Respondents.

2
BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider a former employer’s challenges

to attorneys’ fees and other related fees awarded under the

Black Lung Benefits Act (the BLBA), 30 U.S.C. §§ 901 through

945. After Harold Gosnell, the claimant, was awarded black lung

benefits, claimant’s counsel successfully petitioned the

administrative law judge (the ALJ) for an award of recoverable

fees. The Benefits Review Board (the BRB) affirmed the ALJ’s

fee award and also awarded certain fees for additional work

performed before the BRB.

We consider the issue whether the awards of attorneys’ fees

properly reflected market-based evidence of counsel’s hourly

rate, as required by the lodestar analysis in Hensley v.

Eckerhart, 461 U.S. 424 (1983). We also address whether the

practice of quarter-hour billing by claimant’s counsel resulted

in an excessive number of hours billed in this case. Upon our

review, we hold that neither the ALJ nor the BRB abused its

discretion in concluding that counsel provided sufficient

market-based evidence of rates, and that the number of hours

billed for attorneys’ services reasonably reflected the work

completed. However, we further hold that the award of fees for

work performed by certain legal assistants was not supported

fully by the record, and we modify that award accordingly. We

3
therefore affirm the attorneys’ fee awards entered in this case,

and modify the fees awarded for legal assistant services.

I.

In 2005, the claimant filed a claim for benefits under the

BLBA against his former employer, Eastern Associated Coal

Corporation (Eastern). The claimant, who was a coal miner for

seventeen years, had developed a mass on his right lung that

required medical treatment. The medical evidence introduced in

this proceeding addressed the issue whether the claimant

suffered from “unilateral” complicated coal workers’

pneumoconiosis, i.e., black lung disease affecting only one

lung. Among other evidence bearing on the question, the two

radiologists who offered expert testimony reached contrary

conclusions on this unusual issue. Dr. William Scott explained

that the incidence of pneumoconiosis in only one lung would be

“incredibly atypical,” and concluded that the mass in the

claimant’s right lung was not pneumoconiosis but rather likely

resulted from an infection. Dr. Kathleen DePonte agreed that in

the “classic” case, pneumoconiosis would affect both lungs, but

she nevertheless opined that the claimant suffered from

complicated coal workers’ pneumoconiosis.

In 2010, the ALJ found that the claimant suffered from

complicated coal workers’ pneumoconiosis and awarded him

4
benefits under the BLBA. The benefits award is not at issue in

this case.

The law firm representing the claimant, Wolfe, Williams,

Rutherford & Reynolds (claimant’s counsel), later filed a

petition for attorneys’ fees, seeking $35,953.75 for work

relating to the proceedings before the ALJ. 1 In support of the

petition, claimant’s counsel stated the years of experience and

the hourly rates of the various attorneys who had worked on the

case. The petition represented that Joseph Wolfe had over

thirty years’ experience and charged $300 per hour for his

services; that Bobby Belcher had sixteen years’ experience and

charged $250 per hour; and that W. Andrew Delph and Ryan

Gilligan each had several years’ experience and charged $200 and

$175 per hour, respectively.

Claimant’s counsel stated that it knew of “no other firms

in Virginia and very few across the nation” that accept new

black lung cases. Counsel further represented that black lung

claimants ultimately are awarded benefits in only five percent

of cases.

1
This figure included over $1,000 in attorneys’ fees sought
by claimant’s counsel to revise the fee petition, which the ALJ
disallowed. Separately, claimant’s counsel sought over $11,000
in expenses in the fee petition to the ALJ. The ALJ ultimately
awarded about $2,300 of these requested expenses. Neither of
these decisions is challenged on appeal.

5
 Of central importance to this appeal, claimant’s counsel

also submitted for the ALJ’s consideration a list of twenty-one

prior fee awards issued in black lung cases handled by

claimant’s counsel. These awards had been made by seven

different ALJs, all within several years of the present fee

awards.

Claimant’s counsel also submitted to the ALJ the Altman

Weil Survey of Law Firm Economics (2006) (the Altman Weil

Survey), which showed hourly rates for attorneys with varying

degrees of experience in the “South Atlantic” and “Middle

Atlantic” regions. Claimant’s counsel additionally attached an

itemized billing statement describing work done for the claimant

in proceedings before the ALJ between February 2007 and March

2010.

In the petition, claimant’s counsel similarly sought fees

for work done by certain legal assistants at an hourly rate of

$100. Claimant’s counsel stated that $100 per hour was the

firm’s “customary billing rate” for legal assistants in black

lung cases. But significantly, counsel did not provide any

information regarding market rates for legal assistants, either

in its list of prior fee awards or in the excerpt submitted from

the Altman Weil Survey.

In October 2010, the ALJ issued an award of attorneys’ fees

to claimant’s counsel. The ALJ first considered the hourly

6
rates requested by claimant’s counsel, and found that there was

sufficient evidence submitted of reasonable, prevailing hourly

rates based on “multiple and consistent awards by diverse

judges” over the previous four years. The ALJ found that the

hourly rates listed in the Altman Weil Survey for the South

Atlantic region also supported the hourly rates sought, given

the nature of counsel’s practice representing “black lung

claimants [] over a broad region in Virginia and West Virginia.”

The ALJ additionally found that the hourly rate requested for

work performed by legal assistants was appropriate.

Accordingly, the ALJ approved the hourly rates requested.

Next, the ALJ considered whether the billed amount of

168.95 hours was reasonable. The ALJ disagreed with Eastern’s

argument that claimant’s counsel necessarily had billed an

excessive amount by using a quarter-hour billing system. The

ALJ explained that quarter-hour billing was permitted under 20

C.F.R. § 802.203(d)(3) and, thus, that the use of such billing

increments was not unreasonable per se. After examining the

billing statement submitted by claimant’s counsel, the ALJ

disallowed various charges for clerical tasks and several other

charges for tasks that were found to be either duplicative or

unnecessary. In all, the ALJ reduced the number of billed hours

by about thirty, and awarded claimant’s counsel $31,628.75 in

attorneys’ fees rather than the amount of $35,953.75 originally

7
sought. The amount awarded by the ALJ included $3,675 for work

performed by legal assistants. On review, the BRB affirmed the

ALJ’s award of attorneys’ fees, concluding that the ALJ did not

abuse his discretion either with respect to the hourly rates or

to the number of hours awarded.

Claimant’s counsel filed an additional fee petition to the

BRB, seeking $3,675 for work performed primarily by attorneys

Wolfe and Gilligan during the claimant’s appeal. The supporting

documentation incorporated the information presented in the

attorneys’ fees petition to the ALJ, including citation to the

twenty-one prior fee awards, a description of the experience of

claimant’s counsel, and portions of the Altman Weil Survey. The

primary difference in the submission to the BRB was that

claimant’s counsel requested an hourly rate of $225 for

Gilligan, rather than the $175 rate used in the petition before

the ALJ. Claimant’s counsel also sought compensation for work

performed by legal assistants at an hourly rate of $100.

In October 2011, the BRB granted the petition in part. The

BRB determined that the prevailing market rate for Wolfe was

$300 per hour, but concluded that Gilligan’s market rate was

only $175 per hour based on two prior fee awards. 2 The BRB also

2
The BRB noted that in the future Gilligan might be able to
establish a higher market rate, but concluded that in this case
(Continued)
8
approved an hourly rate of $100 for legal assistants. After

making adjustments to the number of hours reasonably expended,

the BRB awarded claimant’s counsel $2,950 in attorneys’ fees.

This total amount awarded by the BRB included $125 for services

performed by a legal assistant.

Eastern timely filed appeals seeking review of the fee

awards issued by the ALJ and the BRB (the agency adjudicators).

Those appeals were consolidated in this Court.

II.

Eastern raises two challenges to the fee awards: (1) that

claimant’s counsel did not provide sufficient market-based

evidence of an hourly rate, which was necessary for calculation

of an applicable lodestar figure; and (2) that claimant’s

counsel requested an excessive number of hours as a result of

its practice of quarter-hour billing. Eastern asks that we

vacate the fee awards and remand for fee determinations

reflecting “only reasonable hours at a market rate.”

Before turning to address Eastern’s arguments, we first

discuss the legal framework governing awards of attorneys’ fees

under the BLBA. We review for abuse of discretion an award of

claimant’s counsel only had “provided sufficient evidence of a
market rate of $175.”

9
attorneys’ fees made under the BLBA, whether determined by an

ALJ or by the BRB. Kerns v. Consol. Coal Co., 176 F.3d 802, 804

(4th Cir. 1999). An ALJ and the BRB are afforded wide latitude

in crafting an appropriate award of attorneys’ fees because they

are much better situated than an appellate court to make this

determination in the first instance. See Westmoreland Coal Co.

v. Cox, 602 F.3d 276, 288 (4th Cir. 2010) (noting the broad

discretion afforded an ALJ in calculating a fee award); Zeigler

Coal Co. v. Dir., OWCP, 326 F.3d 894, 902 (7th Cir. 2003)

(recognizing that an ALJ is in a “much better position than the

appellate court” to determine the “reasonableness of time spent

by a lawyer on a particular task in the course of litigation”)

(citation omitted). We apply the same deferential standard in

our review of an award of other legal fees under the BLBA,

including those incurred for the services of legal assistants.

See Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 407-09 (7th Cir.

1999). However, on appeal, we review more closely any

challenges relating to the criteria used by agency adjudicators

in fashioning such awards. See Newport News Shipbuilding & Dry

Dock Co. v. Holiday, 591 F.3d 219, 226 (4th Cir. 2009) (citing

Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 174 (4th

Cir. 1994)). In sum, an award of attorneys’ fees and related

fees will be upheld unless “arbitrary, capricious, an abuse of

10
discretion, or contrary to law.” Cox, 602 F.3d at 282 (citing

Kerns, 176 F.3d at 804).

A.

Under the BLBA, a miner who is totally disabled as a result

of pneumoconiosis is entitled to benefits. 30 U.S.C. § 921(a);

Cox, 602 F.3d at 282. Benefits may be awarded in contested

cases after adjudication at the Department of Labor by a deputy

commissioner, or on appeal to an ALJ, the BRB, or a federal

court of appeals. U.S. Dep’t of Labor v. Triplett, 494 U.S.

715, 717 (1990).

Although litigants generally must pay their own attorneys’

fees in the absence of explicit statutory authorization, Key

Tronic Corp. v. United States, 511 U.S. 809, 814-15 (1994),

Congress has provided a fee-shifting mechanism for use in black

lung cases. Counsel for a successful black lung claimant is

entitled to an award of attorneys’ fees under the BLBA, 30

U.S.C. § 932(a), which incorporates by reference Section 28 of

the Longshore and Harbor Workers’ Compensation Act (the LHWCA),

33 U.S.C. § 928. An award of attorneys’ fees is “mandatory” in

such cases, Day v. James Marine, Inc., 518 F.3d 411, 414 (6th

Cir. 2008), and private fee agreements between attorneys and

prospective black lung claimants are generally prohibited and

may result in the imposition of criminal penalties. 33 U.S.C. §

928(e); see also 20 C.F.R. § 802.203(f); Triplett, 494 U.S. at

11
718 (stating that the LHWCA “prohibits an attorney from

receiving a fee-whether from the employer, insurer, or [Black

Lung] Trust Fund, or from the claimant himself-unless approved

by the appropriate agency or court”).

In this case, the claimant was successful in his claim for

benefits under the BLBA. An attorney for a successful claimant

in a BLBA proceeding is entitled to “reasonable attorney’s

fee[s].” 33 U.S.C. § 928(a). This term is not defined by

statute. The party seeking attorneys’ fees has the burden of

proving that the rate claimed and the hours worked are

reasonable. Hensley, 461 U.S. at 433; Holiday, 591 F.3d at 227.

The “lodestar” analysis provided in Hensley is the starting

point for calculating an award of reasonable attorneys’ fees. 3

461 U.S. at 433. A lodestar amount is determined by multiplying

“a reasonable hourly rate” by “the number of hours reasonably

expended on the litigation.” 4 Id. The lodestar amount is

presumptively reasonable, and is presumed to be “sufficient to

3
Principles construing what constitutes a “reasonable fee”
apply uniformly to federal fee-shifting statutes. See City of
Burlington v. Dague, 505 U.S. 557, 562 (1992).
4
As with other federal fee-shifting statutes, we apply the
lodestar analysis to determine an award of reasonable attorneys’
fees under 33 U.S.C. § 928(a). Holiday, 591 F.3d at 227 & n.8
(“[t]he LHWCA’s fee-shifting requirement compels us to adopt a
lodestar analysis for the BRB’s fee determinations”); B & G
Mining, Inc. v. Dir., OWCP, 522 F.3d 657, 663 (6th Cir. 2008)
(“the lodestar method is the appropriate starting point for
calculating fee awards under the [BLBA]”).

12
induce a capable attorney to undertake the representation” of a

meritorious case under the statutory fee-shifting scheme.

Perdue v. Kenny A., 559 U.S. 542, ___, 130 S. Ct. 1662, 1672-73

(2010).

After the lodestar amount is calculated, however, the court

or agency adjudicator may adjust that figure based on

consideration of other factors. See Blanchard v. Bergeron, 489

U.S. 87, 94 (1989). In that regard, the Department of Labor has

provided regulatory guidance on considerations relevant to the

determination of an award of attorneys’ fees in black lung

benefits cases. The pertinent regulation provides, in material

part:

Any fee approved . . . shall be reasonably
commensurate with the necessary work done and shall
take into account the quality of the representation,
the qualifications of the representative, the
complexity of the legal issues involved, the level of
proceedings to which the claim was raised, the level
at which the representative entered the proceedings,
and any other information which may be relevant to the
amount of fee requested.

20 C.F.R. § 725.366(b). Thus, we also consider these factors in

conjunction with the lodestar methodology. We observe, however,

that to the extent that any of these factors already has been

incorporated into the lodestar analysis, we do not consider that

factor a second time. Such double-counting would distort the

13
proper weight to be accorded those factors. 5 See Perdue, 130 S.

Ct. at 1673.

The BLBA also allows compensation for the services of legal

assistants in cases involving a successful claimant. See 20

C.F.R. § 725.366; 20 C.F.R. § 802.203; see also Missouri v.

Jenkins, 491 U.S. 274, 285 (1989) (noting the “self-evident

proposition that the ‘reasonable attorney’s fee’ provided for by

statute [under 42 U.S.C. § 1988] should compensate the work of

paralegals, as well as that of attorneys”). Claimant’s counsel

had the burden of justifying the hourly rates for such legal

assistants. See Role Models Am., Inc. v. Brownlee, 353 F.3d

962, 969-70 (D.C. Cir. 2004). The regulations provide that the

rate awarded by the BRB for such services “shall be based on

what is reasonable and customary in the area where the services

5
Courts also have cited for consideration twelve factors
originally articulated in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). These twelve
factors are: “(1) the time and labor required; (2) the novelty
and difficulty of the questions; (3) the skill requisite to
perform the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case; (5)
the customary fee; (6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the circumstances;
(8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) the
‘undesirability’ of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in
similar cases.” Hensley, 461 U.S. at 429-30 n.3 (citing
Johnson, 488 F.2d at 717-19). However, consideration of these
factors likewise is subject to the Supreme Court’s admonition
regarding double-counting. Perdue, 130 S. Ct. at 1673.

14
were rendered for a person of that particular professional

status.” 6 20 C.F.R. § 802.203(d)(4).

We further observe that neither party before us has argued

that a different methodology should be applied in the present

case for assessing the appropriate hourly rate for work

performed by the legal assistants. Cf. Jenkins, 491 U.S. at

286-88 (explaining that legal assistant time could be billed

separately at market rates if it is the prevailing practice in a

given community, but “[i]f it is the practice in the relevant

market not to do so, or to bill the work of [legal assistants]

only at cost, that is all that [the attorneys’ fee provision]

requires”). We therefore review the agency adjudicators’

determinations of legal assistants’ hourly rates for compliance

with the applicable regulations and an assessment whether the

rates awarded were based upon a prevailing market rate.

B.

We address Eastern’s challenges to both elements of the

lodestar amount, namely, the reasonableness of the hourly rates

and the number of hours reasonably expended. We first consider

Eastern’s argument that the ALJ and the BRB abused their

discretion by fixing claimant’s counsel’s hourly rates without

6
The Secretary of Labor has interpreted Section 725.366 in
a manner that is wholly compatible with the lodestar analysis.
See Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849, 874-75
(D.C. Cir. 2002).

15
considering the prevailing market rate for their legal services.

While acknowledging the statutory prohibition on private fee

agreements for black lung claimants, Eastern nevertheless

contends that the agency adjudicators were required to determine

a reasonable hourly rate for claimant’s counsel based on the

rates in the relevant community charged by lawyers of

“comparable skill, experience, and reputation.” See Blum v.

Stenson, 465 U.S. 886, 895 n.11 (1984). Thus, according to

Eastern, the agency adjudicators should have considered what

“fee-paying clients actually pay for this type of work in

Norton, Virginia,” a small community in Virginia where

claimant’s counsel has an office. Eastern further suggested at

oral argument that regional hourly rates of attorneys in social

security cases, criminal cases, or civil disputes could provide

the necessary market-based evidence.

Eastern also challenges the agency adjudicators’ reliance

on prior attorneys’ fee awards as evidence of the prevailing

market rate. Eastern argues that prior fee awards can serve as

evidence of a market rate only when the awards themselves are

shown to have been “based on a market analysis.” Additionally,

Eastern contends that the other evidence relied on by the agency

adjudicators to determine a reasonable hourly rate, namely, the

Altman Weil Survey, was insufficient to determine market rates

in this case. We disagree with Eastern, and conclude that the

16
agency adjudicators properly determined reasonable hourly rates

for claimant’s counsel.

In addition to supporting affidavits, an applicant seeking

an award of attorneys’ fees must submit “satisfactory specific

evidence of the prevailing market rates in the relevant

community for the type of work for which he seeks an award.”

Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990) (citation and

internal quotation marks omitted). The determination of a

traditional “market rate” is especially problematic in the

context of claims brought under the BLBA and the LHWCA, in view

of their general prohibition of fee agreements between counsel

and prospective claimants. See 33 U.S.C. § 928(e); 20 C.F.R. §

802.203(f); Cox, 602 F.3d at 290 (observing that “[t]he highly

regulated markets governed by fee-shifting statutes are

undoubtedly constrained and atypical”). However, despite such

difficulties, a prevailing market rate still must be determined

in BLBA and LHWCA cases before the relevant agency adjudicator

may decide an attorney’s reasonable hourly rate. Cox, 602 F.3d

at 290; see also Blum, 465 U.S. at 895 (holding that “reasonable

fees” must be “calculated according to the prevailing market

rates in the relevant community, regardless of whether plaintiff

is represented by private or non-profit counsel”).

Although Eastern challenges the reliability of prior fee

awards as evidence of a prevailing market rate, our precedent

17
plainly permits consideration of such documentation. Under that

precedent, prior fee awards constitute evidence of a prevailing

market rate that may be considered in fee-shifting contexts,

including those prescribed by the BLBA and the LHWCA.

In a recent appeal of a fee award made under the LHWCA, the

provisions of which are applicable in BLBA cases, we recognized

that an agency adjudicator “generally can look to previous

awards in the relevant marketplace as a barometer for how much

to award counsel in the immediate case.” Holiday, 591 F.3d at

228 (citation omitted). Indeed, we have held that “[e]vidence

of fee awards in comparable cases is generally sufficient to

establish the prevailing market rates in the relevant

community.” 7 Newport News Shipbuilding & Dry Dock Co. v. Brown,

376 F.3d 245, 251 (4th Cir. 2004) (internal quotation marks

omitted) (citing Spell v. McDaniel, 824 F.2d 1380, 1402 (4th

Cir. 1987)).

Of course, prior fee awards do not themselves actually set

the market rate. B & G Mining, Inc. v. Dir., OWCP, 522 F.3d

657, 664 (6th Cir. 2008) (recognizing that “rates awarded in

7
Eastern’s attempt to distinguish Brown on the basis that
the employer “did not dispute the rates claimed” has no merit.
Indeed, the hourly rate was contested by the employer “largely
because the attorney’s hourly rate of $225.00 [was] excessive,”
while the claimant in turn argued that the hourly rate was
reasonable, “cit[ing] several recent orders in which
administrative law judges and the Board have allowed him an
hourly rate of $225.00 in LHWCA cases.” Brown, 376 F.3d at 251.

18
other cases do not set the prevailing market rate-only the

market can do that”). However, such fee awards do provide

“inferential evidence” of the prevailing market rate. Id. In

cases such as the present one, in which there is no lawful

billing rate, the prevailing market rate should be determined

with reference to “the next best evidence,” which includes,

among other things, “evidence of fee awards the attorney has

received in similar cases.” See Spegon v. Catholic Bishop of

Chi., 175 F.3d 544, 555 (7th Cir. 1999). Thus, in this respect,

prior fee awards may serve as a “barometer” of the prevailing

market rate. Holiday, 591 F.3d at 228.

The reasonable hourly rate ultimately used in the lodestar

calculation depends on the prevailing market rate “in the

relevant community for the type of work for which [claimant’s

counsel] seeks an award.” Plyler, 902 F.2d at 277 (citation and

internal quotation marks omitted). Thus, the greater the

similarity in the work, the more relevant the hourly rate is to

a determination of the prevailing market rate.

The ALJ and the BRB certainly were not limited to

consideration of prior fee awards made in black lung cases.

Cox, 602 F.3d at 290 (noting that “other administrative

proceedings of similar complexity would also yield instructive

information” about the prevailing market rate). However, it is

unsurprising that, all other things being equal, the most

19
reliable indicator of prevailing market rates in a black lung

case will be evidence of rates allowed in other black lung

cases, rather than rates in general civil litigation, or, as

suggested by Eastern, criminal defense work. 8

Here, the agency adjudicators considered evidence of prior

fee awards for the same type of work done by the same attorneys.

Given the absence of private fee agreements in black lung cases,

such prior fee awards undoubtedly qualify as one category of the

“next best evidence” of a prevailing market rate. See Spegon,

175 F.3d at 555; see also B & G Mining, 522 F.3d at 664.

Moreover, a party that argues that the best available evidence

of a market rate was not offered must clearly demonstrate that

the adjudicator abused its discretion in assessing the strength

of the evidence presented. See Kerns, 176 F.3d at 804

(providing the standard of review). Eastern has not shown such

an abuse of discretion.

Notwithstanding this fact, we emphasize that prior fee

awards are not controlling authority establishing a prevailing

market rate for later cases. Were that the case, the hourly

8
Considerations other than the underlying nature of the
work ultimately may be significant in determining a prevailing
market rate. For example, we do not discount the possibility
that evidence of hourly rates for slightly different work in a
market locality or region could be more reliable evidence of a
prevailing market rate than identical work performed in a
distant market.

20
rates of attorneys could be predetermined by erroneous prior

awards, or lose the capacity to respond to changing market

conditions. See Farbotko v. Clinton Cnty. of N.Y., 433 F.3d

204, 209 (2d Cir. 2005) (observing that “[r]ecycling rates

awarded in prior cases without considering whether they continue

to prevail may create disparity between” compensation available

under a fee-shifting scheme and that which is available in the

market); Dillard v. City of Greensboro, 213 F.3d 1347, 1355

(11th Cir. 2000) (recognizing the “inferential evidentiary

value” of prior awards but cautioning against giving them

“controlling weight” over “superior evidence”). At the heart of

the requirement that hourly rates be based on market indicators

is “the ability of an attorney to [establish] a reasonable

hourly rate with reference to what other attorneys earn for

similar services,” even when, as here, the market is difficult

to define. See Holiday, 591 F.3d at 227. Application of this

principle thereby ensures that attorneys have an incentive to

take cases brought under fee-shifting statutes. See Perdue, 130

S. Ct. at 1672-73 (“the lodestar method yields a fee that is

presumptively sufficient” to “induce a capable attorney to

undertake the representation”).

Eastern relies heavily on our recent opinion in Cox to

argue that claimant’s counsel has not submitted sufficient

market-based evidence to support the fee awards. Eastern’s

21
reliance on Cox is understandable on a superficial level

because, in that case, we reversed an award of attorneys’ fees

to the very same attorneys involved in this case. Notably,

however, the claimant’s counsel in that case did not proffer

evidence of prior fee awards received in similar cases. See

Cox, 602 F.3d at 288-90.

Instead, claimant’s counsel in Cox offered only the

following submissions to support the asserted prevailing market

rate: (1) the Altman Weil Survey; (2) counsel’s assertion that

he “knew of no other attorneys who currently handle black lung

work in Virginia or take new cases”; (3) the low rates of

success in black lung litigation; and (4) the contingent nature

of the attorneys’ fees. 602 F.3d at 289. Based on those

submissions, we held that claimant’s counsel did not establish a

prevailing market rate. Id. at 290. In reaching this

conclusion, we noted that there was a “range of sources” from

which counsel could have drawn to support the petition for

attorneys’ fees, including, for example, “evidence of the fees

[claimant’s counsel] has received in the past,” affidavits of

other lawyers “who are familiar both with the skills of the fee

applicants and more generally with the type of work in the

relevant community,” and hourly rates in “other administrative

22
proceedings of similar complexity.” 9 Id. (emphasis added)

(citations and internal quotation marks omitted).

In the present case, by providing inferential evidence of

their prevailing market rates drawn from numerous prior fee

awards, claimant’s counsel has remedied the major evidentiary

deficiency identified in Cox. Claimant’s counsel have supported

their petition for attorneys’ fees with information regarding

fee awards from prior black lung cases, including twenty-one

cases in which Wolfe was awarded fees of $300 per hour, eight

cases in which Belcher was awarded between $200 and $250 per

hour, eleven cases in which Delph was awarded between $150 and

$200 per hour, and three cases in which Gilligan was awarded

between $125 and $175 per hour. 10 These awards of attorneys’

fees were issued by seven different ALJs and all were issued

within a few years of counsel’s fee petition filed in this case.

We agree with the ALJ that the “multiple and consistent awards

9
We also explained that, because a prevailing market rate
is “presumed to incorporate considerations of risk of loss,” it
would be “duplicative” to increase counsel’s hourly rate above
the prevailing market rate to account for risk of loss in the
black lung context. Cox, 602 F.3d at 290; see also B & G
Mining, 522 F.3d at 666 (same).
10
Eastern is correct that the fee award that we vacated in
Cox was among those cited by claimant’s counsel in support of
its fee petition. However, our analysis is not altered by the
exclusion of that one fee award from the substantial evidence of
prevailing market rates established by the twenty remaining
prior fee awards.

23
by diverse judges” shown in the submission by claimant’s counsel

constituted specific evidence of the prevailing market rates for

those counsel. See Cox, 602 F.3d at 290.

We observe that claimant’s counsel did not include in the

record submitted to the ALJ or the BRB the actual awards

reflecting such rates. The better practice surely would have

been for counsel to attach such documentation to its fee

petitions, especially when, as here, the prior fee awards were

not readily accessible. In marginal cases, a failure to provide

such documentation could undermine counsel’s showing of a

prevailing market rate. 11 In this case, however, claimant’s

counsel made representations, which Eastern did not dispute,

about the rates fixed in those prior awards. Moreover, the ALJ

was familiar with and reviewed prior fee awards he personally

had rendered in several cases cited by claimant’s counsel. See

Spell, 824 F.2d at 1402 (holding that the prevailing market rate

can be established with reference to “information concerning

recent fee awards by courts in comparable cases”).

11
Contrary to Eastern’s arguments, Cox did not render all
preceding fee awards without evidentiary value unless the
relevant agency adjudicator independently inquires into the
evidence and analysis underlying that prior award to ensure it
too followed applicable law. See Cox, 602 F.3d at 287-91.
Here, given the evidence submitted by claimant’s counsel
pertaining to the prior attorneys’ fee awards as well as other
support for counsel’s prevailing market rates, we are not
presented with a marginal case, much less a case requiring us to
find an abuse of discretion.

24
 In sum, the ALJ’s determination of prevailing market rates

for attorneys was supported by the multiple prior fee awards and

was consistent with the rates cited in the Altman Weil Survey

for attorneys in the region with the same amount of experience. 12

Therefore, we conclude that the ALJ did not abuse his discretion

in determining the prevailing market rates to be applied to the

services of claimant’s counsel, and that the BRB did not err in

affirming that award on appeal.

We further hold that the BRB did not abuse its discretion

in its calculation of reasonable hourly rates for claimant’s

counsel in the second fee petition. The BRB, like the ALJ,

found that Wolfe’s reasonable hourly rate was $300 per hour.

And the BRB took a prudent approach by rejecting Gilligan’s

request for $225 per hour as unsupported by the evidence, while

acknowledging that in a future case he might be able to

establish a market rate greater than the $175 per hour he

received in prior fee awards. Accordingly, we discern no abuse

12
We held in Cox that the evidence submitted was
insufficient to establish a prevailing market rate, and did not
hold, as Eastern suggests, that reliance on the Altman Weil
Survey was per se improper. See 602 F.3d at 288-91. While the
generality of the Altman Weil Survey renders it of limited value
in establishing a prevailing market rate, nevertheless, the ALJ
and the BRB did not abuse their discretion by considering the
Survey in the present case along with the other evidence
submitted by claimant’s counsel.

25
of discretion with respect to the hourly rates for counsel

determined by the BRB.

We further conclude, however, that the agency adjudicators

abused their discretion by determining a prevailing market rate

of $100 per hour for the services rendered by the legal

assistants employed in this case. While claimant’s counsel

provided evidence of the legal assistants’ training, education,

and experience, counsel did not submit any evidence to support a

prevailing market rate for the work of those legal assistants.

Nor did the information about the twenty-one fee awards provided

by claimant’s counsel address the hourly rates that were awarded

to legal assistants in those prior cases. Notwithstanding this

fact, however, Eastern submitted evidence on its own behalf of

numerous prior fee awards in black lung cases in which legal

assistants employed by claimant’s counsel were awarded fees

based on an hourly rate of $50.

Given the absence of evidence in the record to support a

market rate of $100 on this record, we are left only with the

evidence of an hourly rate of $50 provided by Eastern.

Therefore, we reduce the hourly rate for the legal assistants

from $100 to $50 per hour. In all other respects, we discern no

26
abuse of discretion in the hourly rates awarded by the ALJ or

the BRB. 13

C.

Eastern also challenges the decisions of the ALJ and the

BRB approving claimant’s counsel’s submission of hours billed in

13
We also reject Eastern’s argument that the ALJ and the
BRB violated portions of the Administrative Procedure Act, 5
U.S.C. §§ 701 through 706, by relying on prior fee awards as
evidence of a prevailing market rate, when the awards themselves
were not in the record. It is commonplace for courts in various
fee-shifting contexts to “take judicial notice of prior
judgments and [] use them as prima facie evidence of the facts
stated in them.” See B & G Mining, 522 F.3d at 664 n.2 (quoting
Mike’s Train House, Inc. v. Lionel, LLC, 472 F.3d 398, 412 (6th
Cir. 2006)); Patterson v. Balsamico, 440 F.3d 104, 124 (2d Cir.
2006) (directing district court to consider other evidence of a
prevailing market rate as well as “taking judicial notice of
rates awarded in prior cases,” for 42 U.S.C. § 1988 fee
petition). This practice does not violate the APA. B & G
Mining, 522 F.3d at 664 n.2.

Moreover, there is no indication that the prior fee awards
at issue in this case were not publicly available. And, in any
event, claimant’s counsel offered to provide copies of the prior
awards upon request. Therefore, while the better practice would
have been for claimant’s counsel to have presented documentation
of the prior fee awards, Eastern has not shown that it was
prejudiced by the agency adjudicators’ reliance on prior fee
awards that were not made a part of the record.

Additionally, we disagree with Eastern’s argument that the
ALJ failed to comply with the duty of explanation under the APA,
because the ALJ did not distinguish a few prior fee awards
submitted by Eastern awarding lower hourly rates. See 5 U.S.C.
§ 557(c). The ALJ was not required to address specifically each
contrary fee award, and, because we “can discern what the ALJ
did and why he did it, the duty of explanation is satisfied.”
See Piney Mt. Coal Co. v. Mays, 176 F.3d 753, 762 n.10 (4th Cir.
1999) (citation and internal quotation marks omitted).

27
quarter-hour increments. Eastern argues that the agency

adjudicators erred by summarily approving the use of quarter-

hour billing solely because 20 C.F.R. § 802.203(d)(3) permits

such incremental billing. Eastern contends that, instead, the

adjudicators were required to assess whether claimant’s counsel

properly had exercised “billing judgment,” and to exclude

“excessive, redundant, or otherwise unnecessary” hours. See

Hensley, 461 U.S. at 434. Thus, Eastern urges us to hold that

the agency adjudicators abused their discretion by awarding the

requested hours in the absence of “proof that it took fifteen

minutes to perform each and every task alleged.” We decline

Eastern’s request, which would impose undue burdens not required

by law.

We first observe, however, that we already have recognized

that the practice of quarter-hour billing may lead to

overbilling. See Broyles v. Dir., OWCP, 974 F.2d 508, 510-11

(4th Cir. 1992) (expressing concern with quarter-hour billing

after identifying examples of tasks we concluded could not

reasonably have taken fifteen minutes to accomplish); Yellowbook

Inc. v. Brandeberry, 708 F.3d 837, 849 (6th Cir. 2013) (“the

concern with quarter-hour increments is over-billing”).

Nevertheless, the incidence of overbilling is not a concern

unique to the use of quarter-hour billing increments. See B & G

Mining, 522 F.3d at 666 (observing that “attorneys who bill in

28
tenth-hour increments might also overbill-the risk exists under

both methods”).

We further note that the regulations governing fee

petitions before the BRB require that applicants submit bills in

quarter-hour increments. 14 20 C.F.R. § 802.203(d)(3) (“[a] fee

application shall . . . contain[] all of the following specific

information,” including “[t]he number of hours, in 1/4 hour

increments”) (emphasis added). Eastern does not cite any

contrary authority, and we find none, prohibiting the use of

quarter-hour billing in black lung cases. Thus, to the extent

that Eastern argues that the agency adjudicators abused their

discretion per se by awarding fees in quarter-hour increments,

this argument is without merit. Moreover, we cannot agree that

the ALJ and the BRB abused their discretion merely by

considering a fee petition structured in accordance with

applicable federal regulations. Cf. Thomas M. Cooley Law Sch.

v. Am. Bar Ass’n, 459 F.3d 705, 715 (6th Cir. 2006) (agency did

not abuse its discretion by following existing regulations).

We next consider Eastern’s argument that the fees awarded

were excessive under the facts of this case. At the outset, we

observe that petitions for attorneys’ fees should not result “in

14
While 20 C.F.R. § 802.203(d) on its face only applies to
the BRB, we perceive no reason, and the parties provide none,
why the ALJ’s analysis should have followed a different course.

29
a second major litigation,” Hensley, 461 U.S. at 437, and that

tribunals determining fee awards under fee-shifting statutes

have a strong, appropriate concern “in avoiding burdensome

satellite litigation” over fee awards, City of Burlington v.

Dague, 505 U.S. 557, 566 (1992).

Any fee approved under the BLBA, however, must be

“reasonably commensurate with the necessary work done.” 20

C.F.R. § 725.366(b); 20 C.F.R. § 802.203(e). The use of

quarter-hour billing does not relieve agency adjudicators of

their obligation under the lodestar method to ensure that

“excessive, redundant, or otherwise unnecessary” fees are not

awarded. Hensley, 461 U.S. at 434.

We review for abuse of discretion the issue whether the

number of hours allowed was excessive. See B & G Mining, 522

F.3d at 666-67; Conoco, Inc. v. Dir., OWCP, 194 F.3d 684, 692

(5th Cir. 1999). We afford the ALJ and the BRB substantial

deference in deciding whether hours represented in a fee

petition are excessive. See Zeigler, 326 F.3d at 902 (affording

“great deference” to the “views and conclusions of the ALJ”

regarding challenges to a fee award). Manifestly, the agency

adjudicators are better positioned than this Court to evaluate

the “reasonableness of time spent by a lawyer on a particular

task in the course of litigation.” Id.; see also Holiday, 591

F.3d at 228 (stating that an ALJ “has a better understanding” of

30
an attorney’s reasonable hourly rate, which is an “inherently

factual matter”); Ballard v. Schweiker, 724 F.2d 1094, 1098 (4th

Cir. 1984) (under prior black lung fee award statutory scheme,

recognizing that the district court “is in the better position

to evaluate the quality and value of the attorney’s efforts”).

In view of this deferential standard, we generally will not

disturb an agency adjudicator’s decision concerning any given

subset of charges when the adjudicator found that the total

number of hours submitted was reasonable in relation to the work

performed, and the adjudicator’s decision is supported by the

record. See B & G Mining, 522 F.3d at 666; Conoco, 194 F.3d at

692.

Eastern’s argument that the present fee awards were

excessive lacks merit because, essentially, it is grounded on

Eastern’s blanket objection that “there was no proof that it

took fifteen minutes to perform each and every task alleged.”

Such a requirement improperly would escalate a fee applicant’s

present burden to show that the rate claimed and the hours

worked were reasonable. See Hensley, 461 U.S. at 433-34;

Holiday, 591 F.3d at 227. Moreover, the imposition of a greater

proof burden requiring such exactitude would create a strong

disincentive for attorneys to participate in black lung cases,

thereby thwarting the intent of Congress that such claimants

receive representation in seeking an award of benefits. See

31
Perdue, 130 S. Ct. at 1672; Blum, 465 U.S. at 893-94 (reasonable

attorneys’ fees “attract competent counsel,” but do not “produce

windfalls”).

Here, the ALJ and the BRB conducted thorough reviews and

reached conclusions well supported by the record that the total

number of hours claimed was reasonable. The ALJ reasonably

found that the fees were not facially excessive, in view of the

length of the proceedings and the extensive discussion required

in the ALJ’s decision on the merits of the case. In addition,

we think that the record also shows the complexity of the merits

of the claim for benefits, regarding, among other things, the

unusual diagnosis of “unilateral” pneumoconiosis. Moreover, the

ALJ considered Eastern’s objections to “each challenged itemized

time charge to determine whether or not the charge is reasonable

and compensable.”

In conducting this review, the ALJ eliminated over forty

charges by Wolfe, Gilligan, and certain legal assistants that

were not compensable because the tasks at issue were clerical in

nature. Moreover, the ALJ disallowed a significant number of

charges on the basis that they were duplicative or unnecessary,

including seven hours billed by Gilligan related to a deposition

and a hearing when his co-counsel Wolfe also had charged for the

same services. In all, as noted above, the ALJ subtracted about

thirty hours from the request submitted by claimant’s counsel.

32
Based on these considerations, we hold that the ALJ’s award was

manifestly the result of careful and thoughtful consideration of

the fee petition and of Eastern’s “extensive” objections. 15

Like the ALJ, the BRB considered each challenged charge on

an individual basis. The BRB disallowed several charges on

various grounds, and Eastern does not take issue here with the

BRB’s specific findings in its review of the fee petitions.

When particular time entries “bear facial indicia of

exaggeration,” the party opposing a fee award should have the

opportunity to challenge the petitioner about the hours claimed.

Ballard, 724 F.2d at 1097. However, when the challenging party,

such as Eastern here, lodges only a blanket objection to tasks

billed in fifteen-minute increments, that party is not entitled

to an individualized showing that “each and every task alleged”

took the precise amount of time noted.

Accordingly, we discern no abuse of discretion by the ALJ

or the BRB with respect to their consideration of the billing

practices and the fee awards sought. The total number of hours

awarded was reasonable and well supported by the record.

15
We further observe that numerous charges to which Eastern
had objected because they were presented in quarter-hour
increments ultimately were disallowed in their entirety on other
grounds.

33
 III.

In conclusion, we find no indication here that the ALJ or

the BRB simply rubber-stamped the challenged fee petitions.

Notwithstanding our modification of the hourly rate awarded for

the services of the legal assistants, we hold that the ALJ and

the BRB consistently tailored their conclusions to the facts and

circumstances presented both with respect to the hourly rates

and to the number of hours awarded. We reduce the award of

legal assistant fees from a combined $3,800 to $1,900, upon

applying the $50 hourly rate to the 36.75 hours of legal

assistant time for which the ALJ awarded fees, and the 1.25

hours for which the BRB awarded fees. For the reasons detailed

above, we affirm, as modified herein, the fee awards entered by

the ALJ and the BRB in this case.

AFFIRMED AS MODIFIED

34