Ralph E. English v. Chevron Mining, Incorporated (Board decision, August 23, 2018)

BRB final decision on reconsideration. This unpublished order is not precedent. The Board denied the employer's motion to reconsider its earlier decision and awarded claimant's counsel $1,418 in fees. A final Board decision ordinarily becomes final 60 days after issuance unless a timely petition for judicial review or Board reconsideration is filed under 20 C.F.R. § 802.406. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Chevron Mining sought reconsideration of the Board's earlier decision in Ralph English's black lung benefits case. No panel member voted to vacate or change the decision, so the Board denied reconsideration. It also held that the employer raised its challenge to the administrative law judge's appointment too late, after the merits decision. The Board awarded English's counsel $1,418 for work before the Board, disallowing half an hour billed for a motion that its docket did not show.

Decision snapshot

• Authority: Reconsideration under 33 U.S.C. § 921(b)(5) and 20 C.F.R. §§ 802.407 and 802.409; counsel fees under 20 C.F.R. § 802.203.
• Outcome: Reconsideration denied; $1,418 fee awarded to claimant's counsel.
• Key point: The employer's appointment challenge came too late, and the fee award excluded time for an unrecorded motion.

Full text (DOL BRB public release)

U.S. Department of Labor
Benefits Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 17-0313 BLA
Case No. 2012-BLA-05542

RALPH E. ENGLISH
)
)
Claimant-Respondent
)
)
v. )
)
CHEVRON MINING, INCORPORATED
) DATE ISSUED: 08/23/2018
)
and
)
)
PITTSBURG & MIDWAY COAL MINING
)
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
) ORDER on
) RECONSIDERATION and
Party-in-Interest
) AWARD of FEES

As no member of the panel has voted to vacate or modify the decision herein, the motion for reconsideration filed by employer is DENIED.1 33 U.S.C. §921(b)(5); 20 C.F.R. §§801.301(b); 802.407(a); 802.409.

1
Employer argues for the first time on reconsideration that the manner in which Department of Labor administrative law judges are appointed violates the Appointments Clause of the Constitution, Art. II § 2, cl. 2. Employer’s Motion for Reconsideration at 4-

6. The Director, Office of Workers’ Compensation Programs (the Director), responds that
   employer waived this argument by failing to raise it in its opening brief. Director’s Response at 2-3. We agree with the Director. Because employer first raised the Appointments Clause issue only after the Board issued its decision on the merits, employer waived the issue. See Lucia v. SEC, 585 U.S. , 138 S.Ct. 2044, 2055 (2018) (requiring “a timely challenge to the constitutional validity of the appointment of an officer who adjudicates [a party’s] case”); see also Williams v. Humphreys Enters., Inc., 19 BLR 1- 111, 1-114 (1995) (the Board generally will not consider new issues raised by the petitioner after it has filed its brief identifying the issues to be considered on appeal); Senick v. Keystone Coal Mining Co., 5 BLR 1-395, 1-398 (1982).

   Claimant’s counsel, Brent Yonts, has filed a complete, itemized statement
   requesting a fee for services performed before the Board pursuant to 20 C.F.R. §802.203. Counsel requests a fee of $1,516.66 for 7.59 hours of legal services at an hourly rate of
   $200.00. No objection to the fee petition has been filed.

   Review of the fee petition reflects that counsel requests a fee for 0.50 of an hour of
   legal work performed on May 1, 2017 for “Counsel[’s] motion to dismiss appeal.” Motion for Attorney’s Fees (Attachment). The Board searched its docket system and found no record of a motion to dismiss the appeal in this case. We therefore disallow the .50 of an hour requested for this service. 20 C.F.R. §802.203(d).

   In all other respects, the Board finds the requested fee to be reasonable in light of
   the necessary services performed. After reducing the total hours by 0.50 of an hour, to

7.09 hours of legal services, the Board approves a total fee of $1,418.00, to be paid directly to claimant’s counsel by employer.2 33 U.S.C. §928, as incorporated by 30 U.S.C. §932(a); 20 C.F.R. §802.203.

BETTY JEAN
HALL, Chief
Administrative Appeals Judge

RYAN GILLIGAN
Administrative Appeals Judge

JONATHAN
ROLFE
Administrative Appeals Judge

2
The Board’s award in this matter is of no precedential value given that counsel’s fee petition is unopposed.