NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
August 23, 2011
Before
KENNETH F. RIPPLE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
G. PATRICK MURPHY, District Judge*
No. 10‐2174
FLORENCE (CAROLYN) CROWE, on Petition for Review of an Order of the
behalf of HAROLD D. CROWE, Benefits Review Board.
Petitioner,
No. 09‐BLA‐0429
v.
ZEIGLER COAL COMPANY, et al.,
Respondents.
ORDER
We reversed and remanded a decision of the Benefits Review Board with instructions
to reinstate the ALJ’s 2001 award of benefits under the Black Lung Benefits Act to Harold D.
Crowe, for the benefit of his widow, Florence Crowe. Crowe v. Zeigler Coal Co., — F.3d — , 2011
WL 2138140 (7th Cir. June 1, 2011). Crowe argued and this court found that the modification
*
The Honorable G. Patrick Murphy of the Southern District of Illinois, sitting by
designation.
No. 10‐2174 Page 2
proceeding before the ALJ should have been dismissed when respondent Zeigler Coal
Company was liquidated in bankruptcy and Zeigler’s surety, Travelers Companies, failed to
seek timely intervention in the modification proceeding. Now, petitioner Crowe’s counsel
moves the court to award $13,268.75 in attorney fees and costs under the Black Lung Benefits
Act, 33 U.S.C. § 928(a).
Respondent Travelers is now responsible for the surety bond that covers Zeigler’s
obligation to Crowe for benefits. Travelers offered no response to Crowe’s motion for fees “in
light of [this court’s opinion] that Travelers had no right to intervene in the proceeding.” In
fact, there is no doubt that Travelers had a right to intervene if it had done so promptly. See
Crowe, — F.3d at —, 2011 WL 2138140, at *5, citing 20 C.F.R. § 725.360(a)(4). It would be more
accurate to say that although Travelers had a right to intervene, it waited too long to do so. The
result was prolonged litigation and expense.
The statute providing for fee‐shifting in black lung cases states that a claimant’s attorney
who assists in the “successful pursuit or successful defense” of an appeal is entitled to fees. 33
U.S.C. § 928(a); see also 20 C.F.R. § 802.203(a), (b). Travelers does not dispute that Crowe
prevailed, that she is entitled to fees, or that the requested fee amount is reasonable. The most
Travelers says to dispute a fee award against it is that we decided its intervention was
improper.
That is not a persuasive reason to deny the fee award. Because of Travelers’ failure to
intervene in this action in a timely manner, Zeigler’s modification proceeding was
“improperly[] kept alive . . . , [obligating Crowe] to defend his award of benefits against a
phantom litigant,” and requiring this appeal. Crowe, — F.3d at —, 2011 WL 2138140, at *8. A
fee‐shifting statute can authorize a fee award against an unsuccessful intervenor who causes
the prevailing party to incur additional fees. See Moten v. Bricklayers, Masons and Plasterers Int’l
Union of America, 543 F.2d 224, 239 (D.C. Cir. 1976) (ordering unsuccessful intervenor to pay
attorney fee to prevailing plaintiff under Title VII of Civil Rights Act of 1964). In a similar
black lung benefit case, we found a surety liable for fees and costs where the surety prosecuted
the appeal after failing to intervene in a timely manner in administrative proceedings. See Old
Ben Coal Co. v. Office of Workers’ Compensation, No. 06‐2189, (7th Cir. April 30, 2007) (order in
black lung benefits case granting attorney fees and costs against nonparty BP America), citing
Corder v. Howard Johnson & Co., 53 F.3d 225, 232 (9th Cir. 1995), which in turn cited Moten. The
same reasoning applies here. The application for fees is GRANTED, and petitioner’s attorney
is entitled to recover from respondent Travelers Companies the amount of $13,268.75.