Kerns v. Consolidation Coal

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES R. KERNS,
Petitioner,

v.

CONSOLIDATION COAL COMPANY;
No. 95-2052
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(90-2278-BLA)

Argued: March 6, 1996

Decided: May 18, 1999

Before WIDENER and WILKINS, Circuit Judges, and
CHAPMAN, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Widener wrote
the opinion, in which Judge Wilkins and Senior Judge Chapman
joined.

_________________________________________________________________

COUNSEL

ARGUED: Robert F. Cohen, Jr., COHEN, ABATE & COHEN, P.C.,
Fairmont, West Virginia, for Kerns. Elizabeth A. Goodman, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Direc-
tor. William Steele Mattingly, JACKSON & KELLY, Morgantown,
West Virginia, for Consolidation Coal. ON BRIEF: Thomas S. Wil-
liamson, Jr., Solicitor of Labor, Donald S. Shire, Associate Solicitor,
Barbara M. Nece, Counsel for Appellate Litigation, Eileen Mary
McCarthy, UNITED STATES DEPARTMENT OF LABOR, Wash-
ington, D.C., for Director.

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

In this case we are asked to decide whether a black lung attorney's
fee may be increased on account of the passage of time. An adminis-
trative law judge (ALJ) awarded attorney's fees to Robert F. Cohen,
Jr. in 1984. Cohen received payment in 1990. He is before this court
seeking a supplemental award to compensate him for the six years
delay between the award of the fee and the payment of the fee. We
are of opinion that such a fee may be so enhanced and remand for
consideration of the attorney's motion.

The chronology of this case is somewhat complicated because of
the passage of time. An ALJ awarded Charles R. Kerns black lung
benefits on June 20, 1984. On July 16, 1984 Kerns' attorney, Robert
F. Cohen, Jr., filed a petition for compensation at $100 per hour for
59 hours of work. On November 15, 1984 the ALJ approved 39.5
hours at $80 per hour. Cohen filed a request for reconsideration, and
the ALJ denied that request on January 17, 1985.

Meanwhile, Consolidation Coal Company had appealed the June
20, 1984 award of Kerns' black lung benefits to the Benefits Review
Board. Cohen filed a cross-appeal and asked the Board to vacate the
ALJ's November 15, 1984 order and to increase his attorney fee
award. The Board's decision of November 24, 1986 vacated Kerns'
award of black lung benefits and remanded the case for reconsidera-
tion. The Board also affirmed Cohen's award of attorney's fees, but
held the award in abeyance pending the final outcome of the remand.
On remand, a different ALJ denied Kerns' black lung claim on June
10, 1987. Kerns appealed to the Board, and on January 31, 1989 the

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Board reversed the ALJ and awarded black lung benefits to Kerns.
The Board denied Consolidation Coal's motion for reconsideration on
April 28, 1989. Consolidation Coal then petitioned for review in this
court, and we affirmed Kerns' award of benefits on May 8, 1990.
Cohen received his attorney's fee in July 1990 for work performed
before the first ALJ, Maurer. Consolidation Coal's check is dated July
20, 1990, and the motion states July 23, 1990, a difference of no con-
sequence.

On July 24, 1990 Cohen filed a motion for a supplemental attor-
ney's fee because of the six year delay between the award of the fee
in 1984 and the payment of the fee in 1990. That is the question
before us today.

A second ALJ, Murty, denied the request on August 22, 1990.
Cohen petitioned for review, and the Board affirmed the denial of a
supplemental fee on March 30, 1995. The Board determined that
Cohen's application was not timely filed because he should have
taken action for enhancement of his award in 1986 before the Board's
affirmance of the ALJ's award of attorney's fees became final.

Cohen now appeals to this court and asks us to decide three issues.
First, whether a delay between the award of a black lung attorney's
fee and the payment of the fee should be considered in determining
the reasonableness of the fee award. Second, whether the Board's
March 30, 1995 decision and order was arbitrary, capricious, or con-
trary to law. Third, whether a supplemental attorney's fee is a legally
permissible method for modifying a fee award when there is a delay
between the award of the fee and the payment of the fee.

When reviewing a decision of the Benefits Review Board, we
apply the same standard the Board applies on reviewing an ALJ's
decision. Walker v. Director, OWCP, 927 F.2d 181, 183 (4th Cir.
1991). An ALJ's award of attorney's fees is discretionary, and will be
upheld on appeal unless arbitrary, capricious, an abuse of discretion,
or contrary to law. See Abbott v. Director, OWCP , 13 BLR 1-15
(Ben. Rev. Bd. June 30, 1989). We review conclusions of law de
novo. Walker, 927 F.2d at 183.

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The Black Lung Benefits Act provides for attorney's fees for the
successful prosecution of a claim under the statute. 1 The prosecution
of a claim is not successful until the claimant's compensation order
becomes final. 33 U.S.C. § 928(a) (incorporated into the Black Lung
Benefits Act by 30 U.S.C. § 932(a)). Once the order is final, the attor-
ney may apply for fees to each tribunal before whom he appeared on
behalf of the claimant. 20 C.F.R. § 725.366(a); Department of Labor
v. Triplett, 494 U.S. 715, 718 (1990).

The regulations provide that an attorney must file his fee request
"within the time limits allowed by the deputy commissioner, adminis-
trative law judge, or appropriate appellate tribunal." 20 C.F.R.
§ 725.366(a). The Benefits Review Board requires that fee requests be
filed within sixty days of the final order in a case. 20 C.F.R.
§ 802.203(c). The ALJ in this case required Cohen to file his fee
request within thirty days of the June 29, 1984 Decision and Order.2
An attorney may request a reconsideration of his fee award, and the
regulations do not provide for a time limit within which this request
must be filed. See 20 C.F.R. § 725.366(d)-(e).
_________________________________________________________________

1 The statute provides:

If the employer or carrier declines to pay any compensation on
or before the thirtieth day after receiving written notice of a
claim for compensation having been filed from the deputy com-
missioner, on the ground that there is no liability for compensa-
tion within the provisions of this chapter, and the person seeking
benefits shall hereafter have utilized the services of an attorney
at law in the successful prosecution of his claim, there shall be
awarded, in addition to the award of compensation, in a compen-
sation order, a reasonable attorney's fee against the employer or
carrier in an amount approved by the deputy commissioner,
Board, or court, as the case may be, which shall be paid directly
by the employer or carrier to the attorney for the claimant in a
lump sum after the compensation order becomes final.

33 U.S.C. § 928(a) (incorporated into the Black Lung Benefits Act by 30
U.S.C. § 932(a)).
2 According to the Director, ALJs routinely require attorneys to file fee
requests within thirty days of a decision awarding benefits.

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As a preliminary matter, any objections to our jurisdiction are not
well taken. We could not have considered the question of an attorney
fee award in 1986. The question would have been premature because
the issue of Consolidation Coal's liability was yet undecided. Had
Consolidation Coal ultimately prevailed on the liability issue, Cohen
would not be entitled to any fee award. Consolidation Coal's argu-
ment that Cohen should have cross-appealed the Board's 1989 deci-
sion awarding Kerns benefits is also incorrect because the benefits to
Kerns were not final until our decision of May 1990 and thus Cohen's
fee request was not before the Board in 1989.

Cohen could not have appealed the Board's 1986 decision to us
because the Board vacated the benefits award and remanded the case
to the ALJ. Cohen could not have filed a supplemental fee request
with the ALJ in 1987 because the ALJ denied benefits. When the
Board awarded benefits in 1989, the issue of Cohen's fees was not
before the Board because, as has been noted, prior to our decision
affirming the Board's decision to award benefits, Cohen was not enti-
tled to any fees.

Cohen complied with the ALJ's requirement by filing his fee
request within thirty days and because of the various decisions in the
case, he was unable to request supplemental fees or to have the issue
of his fees before this court. Cohen's only recourse was to file a
request for supplemental fees with the ALJ after our 1990 decision
became the final order in this court. Therefore, we are of opinion that
the ALJ was required to consider the merits of Cohen's supplemental
fee request in 1990.

We note that the Board has recently held that enhancement for
delay is appropriate in Black Lung attorney's fee award cases. See
Nelson v. Stevedoring Servs. of America, 29 BRBS 90 (June 28, 1995)
(overruling statements in prior decisions by the Board holding that
awarding a higher rate to account for delay is an abuse of the ALJ's
discretion). Although the law at the time Cohen filed his fee request
did not require that the ALJ consider enhancement for delay, current
law does. On remand, the ALJ must consider Cohen's supplemental
fee request in light of the law as it now exists. See Nelson, supra;
Bradley v. School Board of Richmond, 416 U.S. 696, 711 (1974)

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("[A] court is to apply the law in effect at the time it renders its deci-
sion . . . .").

We thus vacate the order of the Board denying consideration on the
merits of the motion of Cohen and remand this case to the Board for
further remand to the ALJ for consideration of whether or not to
enhance the fee of Cohen for the period between 1984 and July 1990.

VACATED AND REMANDED WITH INSTRUCTIONS3
_________________________________________________________________
3 Accord: Anderson v. Director, OWCP, 91 F.3d 1322 (9th Cir. 1996).

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