Joe W. Frye v. West Virginia Electric Corporation (Board decision, November 9, 2021)

BRB final decision. This unpublished decision is not precedent. The Benefits Review Board affirmed a $3,354.44 attorney fee award arising from Joe Frye's successful black lung claim. 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

Joe Frye's lawyer requested $6,898.19 for services and expenses after the Board had affirmed an award of black lung benefits. The district director reduced the request and awarded $3,354.44. West Virginia Electric appealed, arguing that the fee petition was filed too late, but did not challenge the amount. The Board held that neither the statute nor the regulations set a filing deadline for petitions submitted to the district director. It found no abuse of discretion in accepting this petition and affirmed the fee award.

Decision snapshot

• Authority: Attorney fees under 33 U.S.C. § 928 and filing time limits under 20 C.F.R. § 725.366(a).
• Outcome: The $3,354.44 attorney fee award was affirmed.
• Key point: The district director could consider the petition because no fixed statutory or regulatory filing deadline applied.

Full text (DOL BRB public release)

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

BRB No. 21-0066 BLA

JOE W. FRYE
)
)
Claimant-Respondent
)
)
v. )
)
WEST VIRGINIA ELECTRIC
) DATE ISSUED: 11/09/2021
CORPORATION
)
)
Employer-Petitioner
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Party-in-Interest
) DECISION and ORDER

Appeal of the Proposed Order Supplemental Award Fee for Legal Services of Diane Felton, Claims Examiner, United States Department of Labor, and Proposed Decision and Order Denying Attorney Fee Reconsideration of Debbie Quick, Claims Examiner, United States Department of Labor.

Joseph E. Wolfe and Brad A. Austin (Wolfe, Williams & Reynolds), Norton, Virginia, for Claimant.

Mary Lou Smith (Howe, Anderson & Smith, P.C.), Washington, D.C., for Employer.

Sarah M. Hurley (Seema Nanda, Solicitor of Labor; Barry H. Joyner, Associate Solicitor; Christian P. Barber, Acting Counsel for Administrative Litigation and Legal Advice), Washington, D.C., for the Director, Office of Workers’ Compensation Programs, United States Department of Labor.
Before: BOGGS, Chief Administrative Appeals Judge, ROLFE and GRESH, Administrative Appeals Judges.

PER CURIAM:

Employer appeals Claims Examiner Diane Felton’s Proposed Order Supplemental Award Fee for Legal Services and Claims Examiner Debbie Quick’s Proposed Decision and Order Denying Attorney Fee Reconsideration granting an attorney fee in connection with a claim filed pursuant the Black Lung Benefits Act, as amended, 30 U.S.C. §§901- 944 (2018) (Act). Hereinafter both Claims Examiners are jointly referred to as the district director.

Claimant filed a claim for benefits on October 21, 2013. Administrative Law Judge Natalie A. Appetta issued a Decision and Order Awarding Benefits dated February 28, 2017. Pursuant to Employer’s appeal, the Benefits Review Board affirmed the award on April 12, 2018. Frye v. W. Va. Electric Corp., BRB No. 17-0340 BLA (Apr. 12, 2018) (unpub.). On May 5, 2020, Claimant’s counsel submitted a fee petition to the district director requesting a fee of $6,898.19 for legal services and expenses. Based on consideration of Employer’s objections, including that the fee petition was untimely, the district director granted the fee petition but reduced the requested fee to $3,354.44. Employer requested reconsideration, which the district director denied.

On appeal, Employer challenges the fee award, asserting that the district director erred in treating the fee petition as timely filed. 1 Claimant and the Director, Office of Workers’ Compensation Programs (the Director), respond, asserting that the district director’s consideration of counsel’s fee petition was appropriate and should be affirmed. Employer filed a reply brief in support of its position.

The amount of an attorney fee award is discretionary and will be upheld on appeal unless the challenging party shows it to be arbitrary, capricious, or an abuse of discretion. Jones v. Badger Coal Co., 21 BLR 1-102, 1-108 (1998) (en banc); Abbott v. Director, OWCP, 13 BLR 1-15, 1-16 (1989).

Employer argues that the district director erred in accepting the fee petition as timely. It asserts the terms “shall be filed” and “time limits” contained in 20 C.F.R.
§725.366(a) imply the timeframe to submit a fee petition is not “completely open-ended.” Employer’s Brief at 3. Employer thus urges the Board to recognize an implied deadline

1 Employer has not challenged the amount of the attorney’s fee awarded. Therefore

this finding is affirmed. See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983). and reverse the fee award as untimely. Employer’s Brief at 3-5; Reply Brief at 1-2. We decline to do so.

As the Director correctly notes, neither the Act nor the regulations sets a time period for when fee petitions must be filed with the district director. See 33 U.S.C. §928. The regulations permit the district director who considers the fee request to set the time limit for filing the petition. See Bankes v. Director, OWCP, 765 F.2d 81, 82 (6th Cir. 1985) (“It is within the discretion of the deputy commissioner to set the time limitation for the filing of a fee application for services performed before him in a black lung benefits case.”); 20 C.F.R. §725.366(a).2 Because Employer has not demonstrated an abuse of discretion, we affirm the attorney fee award in the amount of $3,354.44.3

2 The fee petition must be filed “within the time limits allowed by the district director . . . .” 20 C.F.R. §725.366(a).
3 We note Employer has not argued it was denied due process and an opportunity to

contest the fees as a consequence of the amount of time which elapsed before the fee petition was submitted or the delay between the submission of the fee petition and the district director’s order.

2
Accordingly, the Proposed Order Supplemental Award Fee for Legal Services and Proposed Decision and Order Denying Attorney Fee Reconsideration are affirmed.

SO ORDERED.

JUDITH S. BOGGS, Chief
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge

DANIEL T. GRESH
Administrative Appeals Judge