No. 99-1029
In the Supreme Court of the United States
RENE M. DARBY, PETITIONER
v.
INGALLS SHIPBUILDING, INC.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENT
IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
HENRY L. SOLANO
Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor
NATHANIEL I. SPILLER
Deputy Associate Solicitor
MARK S. FLYNN
Attorney
Department of Labor
Washington, D.C. 20210
QUESTIONS PRESENTED
1. Whether petitioner was entitled to an award of attorney's fees under
Section 28 of the Longshore and Harbor Workers' Compensation Act for counsel's
work during petitioner's appeal of an ALJ decision granting limited compensation
benefits for his disability arising out of a 1987 injury, where petitioner
did not obtain any additional compensation as a result of the appeal.
2. Whether the denial of a fee award under these circumstances violates
equal protection or due process.
3. Whether the court of appeals properly denied petitioner leave to file
a petition for en banc review of a non-dispositive order.
In the Supreme Court of the United States
No. 99-1029
RENE M. DARBY, PETITIONER
v.
INGALLS SHIPBUILDING, INC.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENT
IN OPPOSITION
OPINIONS BELOW
The order of the court of appeals in No. 96-60029 denying petitioner's motion
for an award of attorney's fees for proceedings before the court of appeals
(Pet. App. A1), its order denying petitioner's motion for reconsideration
(Pet. App. A2), and its order denying petitioner's motion for leave to file
a petition for rehearing en banc of the court's denial of the motion for
reconsideration (Pet. App. A3) are unreported. The order of the court of
appeals in No. 99-60567, dismissing petitioner's petition for review of
the Benefits Review Board's order denying an award of attorney's fees for
proceedings before the Board (Pet. App. A4-A5), is unreported. The order
of the Board, denying petitioner's motion for reconsideration of its order
denying attorney's fees (Pet. App. A68-A72), is unreported. The Board's
order denying attorney's fees is unreported.1
JURISDICTION
The order of the court of appeals denying attorney's fees in No. 96-60029
was entered on June 11, 1999. The court of appeals' order denying reconsideration
was entered on July 13, 1999, and the order denying leave to file a petition
for en banc consideration was entered on August 19, 1999. The petition for
a writ of certiorari was filed October 11, 1999. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).2
STATEMENT
1. The Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.
901 et seq., provides compensation to covered employees for work-related
injuries that result in disability. 33 U.S.C. 908. Petitioner Rene M. Darby
filed a claim for benefits under the LHWCA arising out of an injury he suffered
to his neck and elbow in September 1987 while working as a joiner for respondent
Ingalls Shipbuilding Corporation. Pet. App. A15, A17, A18. Respondent paid
petitioner temporary total disability benefits while petitioner underwent
medical treatment and eventually returned him to work in a modified joiner
position in 1990. Id. at A8, A20, A68.
Petitioner sought additional compensation and medical benefits, claiming
among other things that his post-injury position did not constitute suitable
alternative employment. Pet. App. A9. In March 1992, after a hearing held
in October 1991, an administrative law judge (ALJ) awarded petitioner additional
medical benefits, temporary compensation benefits, and a scheduled award
for the elbow injury under 33 U.S.C. 908(c)(1). Pet. App. A9, A68-A69. The
ALJ, however, also ruled that petitioner's modified duty position was suitable
alternative employment and therefore denied permanent total disability benefits.
Id. at A9. Petitioner appealed to the Benefits Review Board, see 33 U.S.C.
921(b)(3), and the Board affirmed the ALJ's decision. Pet. App. A8.
2. Petitioner sought review of the Board's decision in the court of appeals.
See 33 U.S.C. 921(c). The court affirmed the Board insofar as it upheld
the ALJ's ruling that petitioner's modified duty position was suitable alternative
employment. Pet. App. A9-A13, A69. The court of appeals also held, however,
that the ALJ had failed to make a determination that petitioner's post-injury
earnings fairly and reasonably represented his wage-earning capacity, see
33 U.S.C. 908(h), and therefore vacated the Board's decision and remanded
to the ALJ for the limited purpose of making that finding. Pet. App. A13,
A69.
3. On May 8, 1992, during the pendency of the foregoing proceedings, petitioner
sustained a second employment-related injury while working in his modified
joiner position. Pet. App. A16, A22, A46. After a period of light duty and
voluntary compensation payments by respondent, petitioner filed a second
claim for benefits in September 1996 based on the May 1992 injury. Id. at
A15, A23-A24.
4. The ALJ held another hearing in December 1997. The ALJ had before him
the remanded issue regarding the 1987 injury and a new claim stemming from
the 1992 injury. The ALJ consolidated the remanded issue with the second
claim, noting that the remanded issue was a "relatively minor issue"
for which separate proceedings were unnecessary. Pet. App. A40. The ALJ
ruled against petitioner on the remanded issue and found that petitioner's
actual earnings in the modified duty position reasonably and fairly represented
his wage-earning capacity during 1990-1991, when he occupied that position.
Id. at A17, A40-A44. Accordingly, the ALJ awarded no further relief on the
original claim. The ALJ then addressed the second claim, which sought compensation
for petitioner's disability after the second injury. Id. at A44-A59. The
ALJ awarded petitioner compensation for temporary total disability from
May 1992 to December 1995, permanent total disability from December 1995
until petitioner became self-employed in August 1997, and permanent partial
disability thereafter.3 Id. at A61-A62.
Petitioner filed a motion for reconsideration, seeking clarification of
whether his two claims had been consolidated as a single cause of action
and requesting a de minimis benefits award for his 1987 injury. Pet. App.
A63-A64; see Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121 (1997) (discussing
nominal compensation awards). The ALJ denied the motion, stating that the
claims had been consolidated for purposes of the hearing and that although
the second claim arose out of an aggravation of the original injury, the
claims were not a single cause of action and "represented two separate
and distinct injuries." Pet. App. A64. As for a de minimis or nominal
award for the 1987 claim, the ALJ concluded that the rationale for such
awards-to keep open the window of opportunity to file for modification of
an award under 33 U.S.C. 922 if "future events or circumstances change
a potential disability into an actual one"-was inapplicable in this
case because the window for filing a modification request remained open
based on the ongoing compensation award on the second claim. Pet. App. A64-A66.
5. Petitioner thereupon filed applications for fee awards under Section
28 of the LHWCA, 33 U.S.C. 928, with both the Benefits Review Board and
the court of appeals, seeking fees for his attorney's work before each body
for the proceedings reviewing the first ALJ decision on his claim relating
to the 1987 injury. Pet. App. A6. See also 20 C.F.R. 702.132(a) (application
for attorney's fees shall be made to decision-maker before whom services
were performed).
The Benefits Review Board denied the fee petition on the ground that petitioner
had not been successful in those review proceedings. App., infra, 2a. The
Board then denied petitioner's motion for reconsideration. Pet. App. A68-A72.
The Board rejected petitioner's argument that under Hensley v. Eckerhart,
461 U.S. 424 (1983), he was entitled to fees because the 1987 injury was
"interrelated" with the 1992 injury on which his second claim
was based. Pet. App. A70. The Board noted that the fact
that [petitioner's] present loss in wage-earning capacity [(i.e., that which
occurred after the 1992 injury)] is due to both the 1987 and 1992 injuries
does not make [petitioner] successful for the period of time prior to the
second injury, which is the only period of time in question for the attorney
services performed before the Board.
Id. at A71. The Board further noted that "although Hensley permits
a fee for interrelated claims, the claims here clearly [were] severable
as the [attorney's] work performed before the Board represents time expended
prior to the 1992 injury." Ibid.4
The court of appeals, without opinion, denied petitioner's application for
fees for representation before that court. Pet. App. A1. Petitioner's motion
for panel reconsideration was then denied without opinion by order of July
13, 1999. Id. at A2. On July 26, 1999, petitioner sought to file a petition
for rehearing en banc, which the clerk's office refused to accept because
the pleading addressed a non-dispositive order. Pet. 8. When petitioner
filed a motion for leave to file the petition for rehearing en banc, the
court of appeals denied leave to file, treating the petition as one seeking
en banc review of the July 13 order denying reconsideration. Pet. App. A3.
ARGUMENT
The court of appeals correctly denied petitioner's applications for attorney's
fees, and that denial does not conflict with any decision of this Court
or any other court of appeals. Further review is therefore unwarranted.
The order of the court of appeals denying petitioner leave to file a petition
for rehearing en banc also presents no circuit conflict and does not warrant
review by this Court.
1. Under Section 28 of the Longshore and Harbor Workers' Compensation Act,
33 U.S.C. 928, a claimant is entitled to an award of a reasonable attorney's
fee for successful prosecution of a claim, including success in review proceedings
before the Benefits Review Board or court of appeals. Thus, Section 28(a)
of the LHWCA provides that where an employer or insurance carrier declines
to pay any compensation after receiving written notice of a claim, and the
claimant thereafter "utilize[s] the services of an attorney at law
in the successful prosecution of his claim," the deputy commissioner,
ALJ, Benefits Review Board, or court, as the case may be, shall award a
"reasonable attorney's fee" against the employer or carrier. 33
U.S.C. 928(a). Section 28(b) further provides that where an employer or
carrier pays or tenders compensation without an award, but a claimant utilizes
an attorney to obtain compensation that "is greater than the amount
paid or tendered," then the claimant shall be awarded a reasonable
attorney's fee "based solely upon the difference between the amount[s]
awarded and * * * tendered." 33 U.S.C. 928(b). Section 28(b) provides
as well that "[i]f the claimant is successful in review proceedings
before the [Benefits Review] Board or court in any such case an award may
be made * * * against the employer or carrier for a reasonable attorney's
fee." Ibid. See also 20 C.F.R. 702.134. An attorney may not receive
a fee from a claimant unless the fee has been approved by the deputy commissioner,
ALJ, Board, or court. 33 U.S.C. 928(e); 20 C.F.R. 702.133.
Section 28's legislative history makes clear that "[a]ttorney[']s fees
may only be awarded against the employer where the claimant succeeds, and
the fees awarded are to be based on the amount by which the compensation
payable is increased as a result of the litigation." H.R. Rep. No.
1441, 92d Cong., 2d Sess. 9 (1972); see also Director, OWCP v. Baca, 927
F.2d 1122, 1124 (10th Cir. 1991) ("Attorney[']s fees may be recovered
[under Section 28] only if the claimant receives increased compensation
or other benefit from the action.").
By this measure, the court of appeals' decision to deny petitioner an award
of fees for his counsel's work during unsuccessful proceedings before the
Board and the court of appeals related to the claim for the 1987 injury
is manifestly correct. Petitioner's appeal from the ALJ's first decision
sought additional compensation beyond that awarded by the ALJ for petitioner's
disability resulting from the 1987 injury. The court of appeals, however,
rejected petitioner's argument that the job that he had been provided after
his injury was not suitable alternative employment, and the court remanded
for a determination of whether his earnings from that job represented his
actual wage-earning capacity. While the remand kept petitioner's claim for
additional compensation alive, on remand the ALJ ruled against him. Consequently,
because petitioner was not successful in obtaining any additional compensation
through resort to the review proceedings, he was not entitled to an award
of fees. Pet. App. A1, A71-A72; cf. Clark v. City of L.A., 803 F.2d 987,
993 (9th Cir. 1986) (prevailing civil rights plaintiffs' request for their
attorneys' fees in pursuit of unsuccessful appeal was appropriately denied
where plaintiffs' success derived solely from the trial court ruling and
not from appeal).
Petitioner contends (Pet. 16-18) that the denial of fees in this case conflicts
with this Court's decision in Hensley v. Eckerhart, 461 U.S. 424 (1983),
because the review proceedings here involved a claim that was "intertwined"
with his subsequently successful claim based on the 1992 injury. Under Hensley,
the fee award of a prevailing party (i.e., one who has prevailed on a significant
issue that achieves some of the benefit sought by bringing suit) should
be based on attorney time devoted to successful claims, not attorney time
expended on unrelated, unsuccessful claims. Id. at 434-435. In some instances,
claims for relief may share a "common core of facts or * * * be based
on related legal theories," and "[m]uch of counsel's time will
be devoted generally to the litigation as a whole, making it difficult to
divide the hours expended on a claim-by-claim basis." Id. at 435. In
those instances, the inquiry should focus on the degree of success obtained
and the reasonableness of counsel's expenditure of time in relation to the
results achieved. Id. at 436.
The Board and the court of appeals fully comported with Hensley in concluding
that the claim pertaining to petitioner's disability resulting from his
1987 injury alone was separate from the claim regarding his later disability
resulting from the combined effects of the 1992 and 1987 injuries.5 The
1992 injury had not yet occurred at the time of the ALJ hearing and decision
on the first claim. Thus, neither the facts nor any legal theories of recovery
pertaining to the 1992 injury were presented in the first ALJ proceeding
or on review by the Board and the court of appeals in that proceeding. Rather,
petitioner filed a separate claim with respect to the 1992 injury, while
the claim on the 1987 injury was pending before the Fifth Circuit. The ALJ
later adjudicated the remanded issue in the same proceeding as the new claim
based on the 1992 injury. Pet. App. A40. Thus, in marked contrast to the
concern in Hensley that counsel's time spent on related claims in a single
lawsuit may not always reasonably be divided between successful and unsuccessful
claims, petitioner's attorney's work in the unsuccessful review proceedings
concerning the 1987 injury claim can easily be separated from his work on
the successful claim for the 1992 injury. See id. at A64 (ALJ's ruling that
the two claims had been consolidated for hearing purposes but "represented
two separate and distinct injuries," not "a single cause of action").
In any event, even if the two claims at issue here were deemed to be "related"
claims within the meaning of Hensley, it would be appropriate to reduce
petitioner's fee award in light of his limited overall success in the proceedings.
Petitioner sought, but did not obtain, compensation for disability for the
period between his assignment to a modified joiner position in October 1990
and the 1992 injury. Denying fees for the review proceedings before the
Board and court of appeals-proceedings that were devoted solely to seeking
to obtain such relief and did nothing to further his success on the second
claim-is a reasonable method of tailoring the fee award to petitioner's
level of success. Hensley, 461 U.S. at 436-437 (within its discretion to
make equitable judgments, a "court may attempt to identify specific
hours that should be eliminated, or it may simply reduce the award to account
for the limited success" in order to ensure that the fee award bears
a reasonable relationship to the level of success obtained).
2. Petitioner contends (Pet. 18-22) that review is warranted because the
court of appeals' decision denying him an award of fees constitutes an impermissible
interference with his right to counsel in derogation of the due process
and equal protection guarantees of the Fifth Amendment. Petitioner relies
(Pet. 21) on United States Department of Labor v. Triplett, 494 U.S. 715
(1990), in which the Court considered but rejected a constitutional challenge
to a statutory requirement that a payment of attorney's fees by the claimant
must be approved by the Board. Nothing in Triplett suggests that the Constitution
might require the payment of attorney's fees by the claimant's opponent.
That fee-shifting requirement is entirely a creature of statute. See Alyeska
Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975). Moreover, even
in the Triplett situation, a party, in order to prevail on a constitutional
challenge, must overcome a "heavy presumption of [the statute's] constitutionality"
by showing that claimants cannot obtain representation and that this unavailability
is attributable to the government's fee regime. Triplett, 494 U.S. at 721.
Petitioner makes no effort to make the requisite showing under Triplett.
Nor could petitioner make that showing because he has been represented by
counsel throughout these proceedings and, indeed, has received a substantial
attorney's fee award pursuant to Section 28 of the LHWCA to reflect his
success in proceedings before the ALJ on his claims. See note 3, supra.
Thus, no constitutional right to the ability to retain counsel has been
impaired in this case.
Petitioner's contention (Pet. 19) that, if LHWCA claimants "cannot
be assured of payment for successfully prosecuting irrevocably intertwined
claims, injured workers may discover that they are no longer able to obtain
adequate representation," is not supported by the facts of this case.
The court of appeals denied a fee award for attorney representation in review
proceedings that were unsuccessful; petitioner received a fee award for
his attorney's work in those proceedings that were successful. Petitioner
presents no ground to question that the award for successful claims, envisioned
by Congress and accomplished in this case, in any way impinges on the right
to counsel. Thus, petitioner's constitutional argument does not warrant
review by this Court.
3. Petitioner also argues (Pet. 22-24) that this Court should review the
court of appeals' denial of his motion to file a petition for rehearing
en banc. The court of appeals did not articulate the basis for its ruling,
but, on its face, the order treated the petition for rehearing en banc as
challenging the panel's July 13, 1999 order denying panel reconsideration,
rather than the underlying June 11, 1999 order denying fees. Pet. App. A3.
Thus, the petition was viewed as relating only to a non-dispositive ruling
by the panel.6 See Pet. 8 (Fifth Circuit clerk refused to accept the petition
on the ground that it challenged a ruling on a non-dispositive motion).
Since the order is silent as to the rationale for the denial, the court
of appeals, contrary to petitioner's suggestion (Pet. 24), certainly did
not hold that decisions on attorney's fee awards are outside the scope of
Federal Rule of Appellate Procedure 35, which governs en banc determinations.
In any event, the denial of attorney's fees in this case presents no issue
that meets the stringent criteria for en banc review, see Rule 35(a) and
(b), and any error by the court of appeals in denying petitioner leave to
file a petition for en banc review was therefore harmless. Accordingly,
this case presents no issue regarding the construction of Rule 35 that warrants
this Court's review.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
HENRY L. SOLANO
Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor
NATHANIEL I. SPILLER
Deputy Associate Solicitor
MARK S. FLYNN
Attorney
Department of Labor
MARCH 2000
1 The May 24, 1999 order of the Board is reproduced in this brief at App.,
infra, 1a-3a.
2 The order of the court of appeals dismissing the petition for review in
No. 99-60567, entered on December 2, 1999 (Pet. App. A4-A5), which petitioner
lists as a decision on review (Pet. 1), is not properly before this Court.
Petitioner tendered a petition for a writ of certiorari on October 11, 1999
that was returned for failure to comply with the rules of this Court. Petitioner
thereafter tendered a petition for a writ of certiorari that was placed
on the docket on December 17, 1999 and deemed filed on October 11, 1999.
The December 2, 1999 order was entered after the petition was deemed filed.
Nevertheless, because the authority supporting the court of appeals' denial
of attorney's fees and the Board's denial of attorney's fees is the same,
the federal respondent will address both decisions.
3 The ALJ awarded petitioner attorney's fees for work performed before him
in the amount of $21,800, plus expenses, after reducing the fee request
by 25% to reflect petitioner's limited success. Pet. App. A70 n.1. That
award is not at issue in this proceeding, although petitioner appealed the
failure to award full fees to the Benefits Review Board. Ibid.
4 Petitioner petitioned for review of the Board's decision on August 24,
1999. Pet. 2. The court of appeals dismissed that petition, No. 99-60567,
as frivolous on December 2, 1999. Pet. App. A4-A5.
5 Although Hensley interpreted a statute providing for attorney's fee awards
for prevailing civil rights plaintiffs, the decision's principles are generally
applicable to Section 28 of the LHWCA. See George Hyman Constr. Co. v. Brooks,
963 F.2d 1532, 1536 (D.C. Cir. 1992); General Dynamics Corp. v. Horrigan,
848 F.2d 321, 325 (1st Cir.), cert. denied, 488 U.S. 992 (1988).
6 Because petitioner apparently tendered the petition on July 26, 1999,
Pet. 8, within 45 days of the Court's June 11, 1999 order denying fees,
it seems that his petition would have been timely under the Federal Rules
of Appellate Procedure for seeking review of that order, had the petition
sought such review. See Fed. R. App. P. 35(c), 40(a) (45-day period applies
where federal agency is a party).
APPENDIX
U.S. Department of Labor [Seal Omitted]
Benefits Review Board
P.O. Box 37601
Washington, DC 20013-7601
BRB No. 92-1547
Case No. 91-LHC-0049
OWCP No. 6-110624
RENE M. DARBY, CLAIMANT-PETITIONER
v.
INGALLS SHIPBUILDING, INCORPORATED,
SELF-INSURED EMPLOYER-RESPONDENT
[Filed: May 24, 1999]
ORDER
Claimant's counsel has filed a complete, itemized statement, requesting
a fee for legal services performed in the captioned appeal, pursuant to
20 C.F.R. §802.203. Counsel requests a fee of $14,984.38 for 85.625
hours of legal services at an hourly rate of $175.00. Counsel also requests
$84.96 in expenses. Employer has filed objections to the fee petition and
claimant filed a reply to employer's objections.
Employer asserts, initially, that the fee petition is untimely. As a basis
for this objection, employer alleges that counsel should have submitted
the fee petition within a reasonable time following the final decision in
this case. Alternatively, employer asserts that any fee approved should
be awarded at an hourly rate reduced to reflect claimant's limited success.
Employer also objects to a request for an enhanced fee and to any time and
expenses incurred prior to the filing of the appeal in this case.
Section 802.203 of the Board's Rules of Practice and Procedure, 20 C.F.R.
§802.203, provides that a fee petition may be filed within sixty (60)
days of the issuance of a decision or non-interlocutory order by the Board.
The Board, however, has discretion to accept a fee petition filed outside
that time period. We note employer's objection to counsel's delay in filing
his fee application but deny the request to strike the fee petition solely
upon the basis of its filing date.
Upon review, the Board has determined that claimant did not successfully
pursue his claim in this case. Accordingly, counsel is not entitled to a
fee for services performed before the Board in this appeal and we deny the
application for attorney fees. 33 U.S.C. §928; 20 C.F.R. §802.203.
/s/ BETTY JEAN HALL
BETTY JEAN HALL, Chief
Administrative Appeals Judge
/s/ JAMES F. BROWN
JAMES F. BROWN
Administrative Appeals Judge
/s/ REGINA C. MCGRANERY
REGINA C. MCGRANERY
Administrative Appeals Judge
CERTIFICATE OF SERVICE
92-1547 Rene M. Darby v. Ingalls Shipbuilding, Inc. (Case No. 91-LHCA-0049)
(OWCP
No. 06-0110624)
I certify that the parties below were served this day.
May 24, 1999 /s/ THOMAS O. SHEPHERD, JR.
(DATE) THOMAS O. SHEPHERD, JR.
Clerk of the Board
Blewett W. Thomas, Esq. Rene M. Darby
P.O. Box 12484 Box 15286, Cable Bridge
SAN ANTONIO, TX 78212 Road
-Certified GULFPORT, MS 39503
Paul B. Howell, Esq. Ms. Carol A. DeDeo, Esq.
Franke, Rainey & Salloum Associate Solicitor
2605 Fourteenth Street U.S. Department of Labor
P.O. Drawer 460 200 Constitution Avenue,
GULFPORT, MS 39502 N.W.
-Certified Suite S-4325
WASHINGTON, DC 20210
Ms. Jeana F. Jackson
District Director
U.S Department of Labor
OWCP/Longshore Program
214 North Hogan Street, Suite 1040
JACKSONVILLE, FL 32202