Charlene Gale Kilgore, on behalf of and survivor of Judy Wagner, v. Guest Mountain Mining Corporation (Board decision, November 9, 2021)

BRB final decision. This unpublished decision is not precedent. The Benefits Review Board approved $1,850 in attorney fees for defending benefit awards in the miner's and survivor's claims. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

After the Board's earlier decision on Joe Wagner's and Judy Wagner's black lung claims, claimant's counsel requested $1,850 for work on the appeals. The employer objected to the hourly rates for three attorneys and legal assistants. Counsel submitted prior fee awards supporting the requested rates. The Board found those rates reasonable in light of the prior awards and local market evidence. It approved the full $1,850 fee, payable by the employer directly to counsel. The Board also granted Charlene Kilgore's request to substitute as a party after her mother Judy Wagner's death.

Decision snapshot

• Authority: Attorney fees under 33 U.S.C. § 928 and 20 C.F.R. § 802.203.
• Outcome: The employer was ordered to pay claimant's counsel $1,850.
• Key point: Prior fee awards supported the requested rates for the attorneys and legal assistants.

Full text (DOL BRB public release)

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

BRB Nos. 18-0260 BLA and 18-0416 BLA
Case Nos. 2013-BLA-06020 and 2016-BLA-05391

CHARLENE GALE KILGORE 1
)
(o/b/o and Survivor of JUDY WAGNER)
)
)
Claimant-Respondent
)
)
v. )
)
GUEST MOUNTAIN MINING
)
CORPORATION
)
)
and ) DATE ISSUED: 11/09/202
)
CHARTIS CASUALTY COMPANY
)
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
) ORDER AWARDING AN
Party-in-Interest
) ATTORNEY’S FEE

1 This case involves Employer’s appeals of the ALJ’s award of benefits in both the

miner’s and survivor’s claims. The Miner, Joe H. Wagner, died on December 22, 2015, Claimant’s Exhibit 4, and the Miner’s widow, Judy Wagner, died on March 3, 2019. In her “Motion to Substitute Parties and Change Case Caption,” Claimant, the daughter of the widow, requests that she be added as a party in both the miner’s and survivor’s claims. The request is granted and the caption is amended accordingly. See 20 C.F.R. §725.360(b).
Claimant’s counsel filed an itemized petition requesting an attorney’s fee for legal services performed in these appeals pursuant to 20 C.F.R. §802.203. Wagner v. Guest Mountain Mining Corp., BRB Nos. 18-0260 BLA and 18-0416 BLA (Oct. 22, 2019) (unpub.). Counsel requests a fee of $1,850.00 representing 1.25 hours of attorney services performed by Joseph E. Wolfe at the hourly rate of $350.00; 5.75 hours of attorney services performed by Brad A. Austin at the hourly rate of $200.00; 0.25 hour of attorney services performed by Rachel Wolfe at the hourly rate of $150.00; and 2.25 hours of legal assistant services at the hourly rate of $100.00. Employer objects to the hourly rates requested by Mr. Wolfe, Mr. Austin, Ms. Wolfe, and the legal assistants, and requests the hourly rates be reduced to $300.00, $150.00, $100.00, and $50.00, respectively.

In support of his fee petition, counsel provided a list of black lung cases in which the Office of Administrative Law Judges, the Benefits Review Board, and the United States Court of Appeals for the Fourth Circuit awarded Mr. Wolfe an hourly rate of $350.00. Moreover, the list includes cases in which Mr. Austin and Ms. Wolfe received the hourly rates of $200.00 and $150.00, respectively, and the legal assistants received the hourly rate of $100.00.

The United States Court of Appeals for the Fourth Circuit has recognized that evidence of fees received in the past may be an appropriate consideration in establishing a market rate. E. Assoc. Coal Corp. v. Director, OWCP [Gosnell], 724 F.3d 561, 572 (4th Cir. 2013); Westmoreland Coal Co. v. Cox, 602 F.2d 276, 290 (4th Cir. 2010). Thus, we find the hourly rate of $350.00 for Mr. Wolfe, $200.00 for Mr. Austin, $150.00 for Ms. Wolfe, and $100.00 for the legal assistants to be reasonable based on the evidence submitted and the prevailing market rate in the area.

We also find the overall attorney’s fee request to be reasonable and commensurate with the necessary services performed in defending the awards of benefits. 20 C.F.R.
§802.203(e).
Accordingly, we approve the requested fee of $1,850.00, to be paid directly to Claimant’s counsel by Employer. 33 U.S.C. §928, as incorporated by 30 U.S.C. §932(a); 20 C.F.R. §802.203.

SO ORDERED.

JUDITH S. BOGGS, Chief
Administrative Appeals Judge

GREG J. BUZZARD
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge