Jay Dunlap v. Fluor Conops, Ltd. (Board decision, September 26, 2025)

BRB interlocutory order. The Benefits Review Board vacated the district director's hourly rate findings and remanded the attorney fee request for further consideration, while affirming the rest of the fee order. The final fee amount remains unresolved. A final Board decision ordinarily becomes final 60 days after issuance absent timely judicial review or reconsideration under 20 C.F.R. § 802.406; a party may request Board reconsideration within 30 days under § 802.407.

Plain-English summary

Jay Dunlap's Defense Base Act claims were resolved through stipulations, leaving a dispute over his lawyer's fee for work before the district director. The lawyer requested more than $22,000, but the district director awarded $9,911 after reducing hourly rates and billed hours. The Board left the hours reductions undisturbed because they were not challenged on appeal. It held that the director had not explained why he lowered the lawyer's and paralegal's hourly rates or addressed the evidence offered to support them. The Board vacated the rate findings and sent the fee request back for an explained decision.

Decision snapshot

• Authority: Attorney fee criteria under 20 C.F.R. § 702.132(a).
• Outcome: Hourly rate findings vacated and remanded; remainder of fee order affirmed.
• Key point: A district director must explain rate reductions and address supporting market evidence.

Full text (DOL BRB public release)

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

BRB No. 24-0094

JAY DUNLAP
)
)
Claimant-Petitioner
)
)
v. )
)
FLUOR CONOPS, LTD.
)
)
and
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NOT-PUBLISHED
)
STARR INDEMNITY AND LIABILITY
)
COMPANY
) DATE ISSUED: 09/26/2025
)
Employer/Carrier-
)
Respondents
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Respondent
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DECISION and ORDER
Appeal of the Order Approving Attorney Fee of David Duhon, District Director, United States Department of Labor.

Howard S. Grossman (Grossman Attorneys at Law), Boca Raton, Florida, for Claimant.

Jonathan A. Tweedy and Leslie E. Knowles (Schouest, Bamdas, Soshea, BenMaier & Eastham), New Orleans, Louisiana, for Employer and its Carrier.
William M. Bush (Jonathan Snare, Deputy Solicitor of Labor; Jennifer Feldman Jones, Acting Associate Solicitor; William M. Bush, Acting Counsel for Administrative Appeals), Washington, D.C., for the Acting Director, Office of Workers’ Compensation Programs, United States Department of Labor.

Before: GRESH, Chief Administrative Appeals Judge, ROLFE, Administrative Appeals Judge, and ULMER, Acting Administrative Appeals Judge.

PER CURIAM:

Claimant appeals District Director David A. Duhon’s Order Approving Attorney Fee rendered on two claims (OWCP Nos. 06-435988 and 06-438747) filed pursuant to the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §§901-950 (Act), as extended by the Defense Base Act, 42 U.S.C. §§1651-1655 (DBA). The amount of an attorney’s fee award is discretionary and will not be set aside unless shown by the challenging party to be arbitrary, capricious, based on an abuse of discretion or not in accordance with law.1 Tahara v. Matson Terminals, Inc., 511 F.3d 950, 955 (9th Cir. 2007); Roach v. N.Y. Protective Covering Co., 16 BRBS 114, 115 (1984); Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272, 273 (1980).

Claimant worked for Employer as a Journeyman II HVAC Technician in Bagram, Afghanistan. He filed two claims for benefits under the Act on April 16, 2021, alleging a psychological injury that occurred on March 1, 2021, because of exposure to traumatic events during his work for Employer, and head and left knee injuries that occurred on March 9, 2021, when he fell while exiting a restroom. On May 12, 2021, Employer controverted both claims and on September 17, 2021, the district director held an informal conference. The parties did not resolve their dispute through the informal process and both claims were referred to the Office of Administrative Law Judges (OALJ) in October 2021.

While the case was pending before OALJ, the parties reached an agreement on all disputes as to Claimant’s entitlement to compensation, except for attorneys’ fees, and filed joint stipulations on March 10, 2023. On April 19, 2023, Administrative Law Judge (ALJ) Angela F. Donaldson entered an order approving the parties’ joint stipulations and

1 This case arises within the jurisdiction of the United States Court of Appeals for

the Eleventh Circuit because the office of the district director who filed the ALJ’s decision is located in Florida. 33 U.S.C. §921(c); Glob. Linguist Sols., L.L.C. v. Abdelmeged, 913 F.3d 921 (9th Cir. 2019); McDonald v. Aecom Tech. Corp., 45 BRBS 45 (2011).

2 remanded the case to the Office of Workers’ Compensation Programs (OWCP) pursuant to 29 C.F.R. 18.12(b)(7) for the district director to take any necessary actions to effectuate the parties’ stipulations. See Apr. 19, 2023 Order Approving Joint Stipulations and Remanding Case at 1-2.

On August 8, 2023, without opposition from Employer, the ALJ awarded Claimant’s Counsel, Howard S. Grossman (Counsel), an attorney’s fee and related costs in the amount of $40,663.47. See Order Approving Petition for Attorney’s Fees and Costs, Aug. 8, 2023. The ALJ awarded Counsel a rate of $575 per hour for all work performed and his paralegal, Adam Yellin, $165 per hour for work performed in 2021 and 2022, as well as $185 per hour for work performed during 2023. Id.

On September 19, 2023, Counsel filed a fee petition for his work before the district director requesting a total fee of $22,279.07,2 representing $13,805 for 25.10 hours of Counsel’s work at an hourly rate of $550, $5,548.75 for 9.65 hours of Counsel’s work at an hourly rate of $575, for a total for Counsel’s work of $19,353.75,3 as well as $1,278.75 for 7.75 hours of paralegal work at an hourly rate of $165, and $1,517 for 8.20 hours of paralegal work at an hourly rate of $185 per hour, for a total for the paralegal’s work of $2,795.75, plus $129.57 in costs. Cl.’s Fee Petition. On October 16, 2023, Employer objected, challenging the hourly rates as excessive, along with numerous time entries as clerical, excessive, or already paid for in accordance with the ALJ’s Fee Order. Emp.’s Obj. at 3-4, EX A.

On November 24, 2023, the district director issued an order awarding Counsel $9,911 in fees and costs. See DD Fee Order. The district director’s award was based on a reduced hourly rate of $450 per hour for Counsel and a reduced rate of $140 per hour for paralegal services. Id. at 1-2. The district director also disapproved some of the hours billed in response to several of Employer’s objections. Id. Specifically, the district director denied 3.65 hours as “excessive,” reduced 8.85 hours of attorney time and 5.15 hours of paralegal time as duplicate tasks performed by both Counsel and the paralegal, and reduced 2.5 hours of work as clerical. Id. Accordingly, he awarded Counsel a total fee of $9,911.

Counsel appeals the district director’s fee order. He contends the district director should have awarded his requested $575 hourly rate instead of awarding only $450 per hour and the paralegal’s requested $165 hourly rate for work in 2021 and 2022 and $185

2 Counsel erred in stating in his fee petition that his total fee request amounted to a

total of $22,283.07, a discrepancy of $4.
3 Counsel erred in stating in his fee petition that the total fee request for his work

amounted to $19,357.75, accounting for the discrepancy of $4.

3 hourly rate for work during 2023 rather than awarding $140 per hour.4 Employer responds, urging affirmance of the district director’s hourly rate findings and the fee order as a whole. The Acting Director, OWCP (Director), also responds, asserting the fee award should be vacated and the case remanded to the district director for further consideration due to his inadequately explained hourly rate determinations.

The Supreme Court of the United States has held that the lodestar method, in which the number of hours reasonably expended in preparing and litigating a case is multiplied by a reasonable hourly rate, represents a “reasonable attorney’s fee” under federal fee- shifting statutes such as the Longshore Act. See Perdue v. Kenny A., 559 U.S. 542, 551- 553 (2010); City of Burlington v. Dague, 505 U.S. 557, 562 (1992). The Court also has held an attorney’s reasonable hourly rate is “to be calculated according to the prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895 (1984); see Perdue, 559 U.S. at 551. Once the district director determines the relevant community for determining an attorney’s hourly rate, it is the attorney’s burden to produce satisfactory evidence “that the requested hourly rates are in line with those prevailing in the relevant community for similar services by lawyers of comparable skill, experience, and reputation.” Blum, 465 U.S. at 896 n.11; see Christensen v. Stevedoring Sers. of Am., Inc., 557 F.3d 1049, 1053 (9th Cir. 2009). While a factfinder has the discretion to determine the appropriate percentile at which an attorney should be compensated, he must fully consider all relevant evidence, provide specific explanations for his findings, and not rely on improper factors. Seachris v. Brady-Hamilton Stevedore Co., 994 F.3d 1066, 1080 (9th Cir. 2021); Shirrod v. Director, OWCP, 809 F.3d 1082, 1087 (9th Cir. 2015).

Factfinders must provide sufficient explanation for reductions of fee requests. Roach, 16 BRBS at 115; Bell v. Volpe Head Constr. Co., 11 BRBS 377, 380-381 (1979). A district director’s failure to provide the necessary explanation for his hourly rate reductions renders his award arbitrary and an abuse of discretion. Id.; see also Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008); Tahara, 511 F.3d at 955-956. When a district director reduces the amount of the attorney’s fee awarded from the amount requested, he must consider the regulatory criteria under 20 C.F.R. § 702.132(a) and provide a sufficient explanation of his reasons. See Van Skike v. Director, OWCP, 557 F.3d 1041, 1048 (9th Cir. 2009); Ellis v. Blake Constr. Co., 8 BRBS 650, 652 (1978); Campbell v. Blake Constr. Co., 8 BRBS 667, 669 (1978).

4 We affirm, as unchallenged on appeal, the district director’s reduction of hours and total hours awarded. Scalio v. Ceres Marine Terminals, Inc., 41 BRBS 57, 58 (2007); DD Fee Order at 1-2.

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We agree with both Claimant and the Director that the district director did not adequately explain his reasons for reducing Counsel’s hourly rate to $450 and the paralegal’s hourly rate to $140 in this case. Cl.’s Brief at 11-12, 23 (unpaginated); Director’s Brief at 2-3. Instead of considering or discussing any evidence submitted by Counsel in support of the requested hourly rates as required by law, the district director briefly summarized Employer’s objections to the hourly rates and concluded Counsel’s request for $575 per hour is “excessive and is not commensurate with the hourly rates of attorneys with similar experience.” DD Fee Order at 2; see Seachris, 994 F.3d at 1080; Shirrod, 809 F.3d at 1087; Hernandez v. Nat’l Steel & Shipbuilding Co., 54 BRBS 13, 14- 15 (2020). Further, he summarily found the reduced hourly rates he awarded “reasonable” and “commensurate.”

In the absence of any explanation, we are unable to review the district director’s rationale and address Counsel’s challenges; therefore, we vacate the district director’s fee award and remand this case for further consideration. On remand, the district director must provide an adequate rationale for his hourly rate findings consistent with law. See generally Steevens v. Umpqua River Navigation, 35 BRBS 129 (2001) Gremillion v. Gulf Coast Catering Co., 31 BRBS 163, 168 (1997); Beacham v. Atl. & Gulf Stevedores, Inc., 7 BRBS 940 (1978).

Accordingly, we vacate the district director’s hourly rate findings and remand the case for further consideration consistent with this opinion. In all other respects, we affirm the district director’s Order Approving Attorney Fee.

SO ORDERED.

DANIEL T. GRESH, Chief
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge

GLENN E. ULMER
Acting Administrative Appeals Judge

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