Katakuri E. Muhereza v. Constellis Group/Triple Canopy (Board decision, April 17, 2026)

BRB final decision. The Benefits Review Board affirmed the administrative law judge's attorney fee award. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Katakuri Muhereza obtained medical benefits for a work-related psychological condition under the Defense Base Act, although the judge denied disability benefits. His lawyer sought fees for work before the judge. The judge reduced the request for limited success and awarded $92,521.41 in fees plus $1,025.90 in costs. The employer appealed the amount and the judge's method, but had filed no objections to the fee petition before the judge. The Board declined to consider objections raised for the first time on appeal and affirmed the fee award.

Decision snapshot

• Authority: Attorney fees under 33 U.S.C. § 928.
• Outcome: Fee award of $92,521.41 and costs of $1,025.90 affirmed.
• Key point: An employer must object to a fee petition before the judge to preserve those objections for Board review.

Full text (BRB public release)

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

BRB No. 24-0309

KATAKURI E. MUHEREZA
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Claimant-Respondent
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v. )
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CONSTELLIS GROUP/TRIPLE CANOPY
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NOT-PUBLISHED
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and
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) DATE ISSUED: 04/17/2026
STARR INDEMNITY & LIABILITY
)
COMPANY
)
)
Employer/Carrier-
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Petitioners
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DECISION and ORDER
Appeal of the Supplemental Decision & Order Awarding Attorney Fees of Jerry R. DeMaio, Administrative Law Judge, United States Department of Labor.

Andrew Nyombi (KNA Pearl), Silver Spring, Maryland, for Claimant.

M. Lane Lowrey (Schouest, Bamdas, Soshea, BenMaier & Eastham, PLLC), Houston, Texas, for Employer and its Carrier.

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

PER CURIAM:

Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Jerry R. DeMaio’s Supplemental Decision & Order Awarding Attorney Fees (2020-LDA- 00405) rendered on a claim 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).

Claimant initially worked for Employer as a security guard in Iraq from May to July 2009 and then returned to work for Employer as an armed security guard in Afghanistan on March 3, 2018. Claimant’s Exhibit (CX) 13 at 36; Hearing Transcript (TR) at 24. After fainting on the job, Claimant was diagnosed with uncontrolled diabetes at an on-site military hospital and, after his discharge from the hospital, he was additionally diagnosed with diabetes mellitus, H. pylori, ulcers, and post-traumatic stress disorder (PTSD). CXs 3, 5, 6; TR at 22, 25, 29. Claimant thereafter filed multiple claims for benefits for his allegedly work-related physical and psychological injuries. The case was referred to the Office of Administrative Law Judges (OALJ) on November 25, 2019, and a hearing was held on August 12, 2020.

In his initial Decision and Order Denying Benefits, the ALJ found Claimant did not invoke the Section 20(a) presumption, 33 U.S.C. §920(a), relating his work-related injuries to his employment. Muhereza v. Constellis Grp., OALJ No. 2020-LDA-00405 (Nov. 29, 2021). Pursuant to Claimant’s appeal, the Benefits Review Board affirmed the ALJ’s findings that Claimant’s diabetes, H. pylori, and ulcers are not work-related. Muhereza v. Constellis Grp., BRB No. 22-0089, Slip Op. at 5-6 (Mar. 22, 2023) (unpub.). But the Board reversed the ALJ’s finding that Claimant did not invoke the Section 20(a) presumption with regard to his psychological injury and remanded the case for the ALJ to redetermine whether Employer rebutted the presumption and, if the ALJ found Employer did so, to determine whether Claimant established a work-related psychological condition. If the ALJ found his injury is work-related, the Board instructed the ALJ must then address whether Claimant established any disability related to this condition. Id. at 6-7.

On January 3, 2024, the ALJ issued a Decision and Order On Remand finding Employer was unable to rebut the Section 20(a) presumption, and Claimant has a work- related psychological condition as a matter of law. D&O on Remand at 4. He awarded

1
This case arises within the jurisdiction of the United States Court of Appeals for the Second Circuit because the office of the district director who filed the ALJ’s decision is located in New York. 33 U.S.C. §921(c); 33 U.S.C. §921(c); Glob. Linguist Sols., L.L.C. v. Abdelmeged, 913 F.3d 921, 922 (9th Cir. 2019); McDonald v. Aecom Tech. Corp., 45 BRBS 45, 47 (2011).

2
Claimant medical benefits under Section 7 of the Act and denied disability benefits, finding Claimant was not disabled by the injury. Id. at 7.2

On February 15, 2024, Counsel filed a fee petition for his work before the OALJ, as well as a supplemental petition filed on February 26, 2024, including additional exhibits in support of his petition, requesting a total fee of $141,793.24. The fee request represented $140,642.34 for 301.4 hours of Counsel’s work at an hourly rate of $450 and 25.83 hours of two paralegals’ work at hourly rates of $150 and $200 each, plus $1,150.90 in costs and expenses. Employer did not file objections to Counsel’s fee petition.

On April 15, 2024, the ALJ issued a Supplemental Decision & Order Awarding Attorney Fees, in which he first stated that “Employer/Carrier did not file a reply or any objections in the time allotted under the regulations, and this petition is therefore unopposed.” Fee Order at 1.3 The ALJ considered only the billing entries that represented work before him, totaling a fee of $102,801.57 and costs of $1,025.90: from November 25, 2019, to November 28, 2021, totaling $74,092.07; and from March 22, 2023, totaling $28,709.50. Id. at 2 (citing Initial Fee Pet. Invoice at 3-15; Initial Fee Pet. Billing List Total at 27-29; Supp. Fee Pet. EX 2). He reduced the requested fee by ten percent ($10,280.16) due to Claimant’s limited success in obtaining the relief he sought. Id. (citing Hill v. Avondale Indus., Inc., 32 BRBS 186 (1998)). Therefore, he awarded Counsel a fee of $92,521.41 and costs of $1,025.90. Id.

Employer appeals the ALJ’s Fee Order, contending it is arbitrary and not in accordance with law. Emp.’s Br. at 5. Specifically, it argues the ALJ failed to: 1) address

2
On January 5, 2024, the ALJ issued an “Errata” order to correct the inaccurate references to Employer’s Carrier in his Decision and Order on Remand. Errata Order at 1- 2.
3
On February 5, 2024, Counsel filed a motion for extension of time to file his fee petition. See Cl.’s Mot. for a Ten (10) Day Ext. to File Pet. for Attys’ Fees and Costs (Feb. 5, 2024). In an email response, the ALJ granted Counsel’s unopposed motion and gave him until February 16, 2024, to submit his fee petition, stating also that Employer “will have 30 days from the filing of said petition to file any objections.” See Feb. 6, 2024 OALJ Email to Cl. and Emp. After Counsel timely filed his fee petition, and Employer did not respond, the OALJ sent another email letter to Employer, copied Counsel, and indicated that “[a]s of this afternoon, no objections have been received from counsel for Employer. As a reminder, objections were due within 30 days.” See Mar. 28, 2024 OALJ Email to Cl. and Emp.

3 the lodestar method of determining fees; 2) consider the regulatory criteria in determining the amount of fees awarded; 3) apply the factors set forth in Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) in determining a reduction based on limited success; and 4) render a finding regarding Counsel’s reasonable hourly rate. Id. at 5-9. Counsel responds, urging the Board to affirm the ALJ’s Fee Order in part because Employer failed to file timely objections with the ALJ and cannot raise these issues now. Cl.’s Resp. Br. at 3-4, 8, 18. We agree with Counsel’s position.

To preserve an issue for appeal of an order granting a claimant’s counsel a fee for work done before OALJ, the employer must first object to the fee petition before the ALJ. Ross v. Ingalls Shipbuilding, Inc., 29 BRBS 42, 43 (1995) (fee objections not raised below may not be addressed on appeal); Bullock v. Ingalls Shipbuilding, Inc., 27 BRBS 90, 94 (1993) (same); Biggs v. Ingalls Shipbuilding, Inc., 27 BRBS 237, 241-242 (1993) (Brown, J., dissenting), aff’d in pert. part mem. sub nom., Ingalls Shipbuilding, Inc. v. Dir., OWCP, 46 F.3d 66 (5th Cir. 1995) (the Board will not address for the first time on appeal objections that the fee should be reduced to account for limited success); Gulley v. Ingalls Shipbuilding, Inc., 22 BRBS 262, 269 (1989) (en banc), rev’d sub nom., Ingalls Shipbuilding, Inc. v. Dir., OWCP, 898 F.2d 1088 (5th Cir. 1990) (Board declined to address employer’s specific contentions regarding substance of attorney’s fee awards where objections were not raised before ALJ); Clophus v. Amoco Prod. Co., 21 BRBS 261, 265- 266 (1988) (Board declined to address employer’s hourly rate argument as it was not first raised before the ALJ).

Employer failed to file any objections or response to Counsel’s fee petition before the ALJ. In its brief before the Board, Employer does not deny (nor even acknowledge) its failure to raise objections before the ALJ. As Employer did not object to Counsel’s fee request before the ALJ and is raising its arguments for the first time before the Board, we decline to address its contentions on appeal. Ross, 29 BRBS at 43; Bullock, 27 BRBS at 94; Biggs, 27 BRBS at 241-242; Gulley, 22 BRBS at 269; Clophus, 21 BRBS at 265-266.

4
Accordingly, we affirm the ALJ’s Supplemental Decision & Order Awarding Attorney Fees.

SO ORDERED.

DANIEL T. GRESH, Chief
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge

GLENN E. ULMER
Administrative Appeals Judge