The Fourth Circuit issued a new Black Lungs Benefits Act (“BLBA”) decision that is also particularly important for Longshore and Harbor Workers’ Compensation Act (“LHWCA”) and Defense Base Act cases. The majority of the published opinion dealt with the evidence a claimant’s attorney must submit to prove the “prevailing market rate” for BLBA and LHWCA attorneys. This issue arose in the context of a BLBA case because the BLBA incorporates portions of the LHWCA, including the LHWCA’s attorney fee statute, 33 U.S.C. § 928.
The law firm representing the injured worker requested $35,953.75 for work related to the Office of Administrative Law Judge proceeding. Included in this sum was a $300 hourly rate for an attorney with over thirty years’ experience; a $250 hourly rate for an attorney with sixteen years’ experience; and a $250 and $175 hourly rate for younger attorneys with several years’ experience. In addition to the Altman Weil Survey of Law Firm Economics, the claimant’s attorneys submitted “a list of twenty-one prior fee awards issued in black lung cases handled by claimant’s counsel.” Defendant argued that the claimant’s attorneys failed to submit sufficient market-based evidence of an hourly rate.
The Fourth Circuit disagreed, reasoning that prior fee awards may be used as evidence of a prevailing market rate for BLBA and (undoubtedly) LHWCA attorney’s fees. The prior awards do not “set” the market rate, and they are not controlling authority, but they “may serve as a ‘barometer’ of the prevailing market rate.” The prior awards are “inferential evidence” of the prevailing market rate.
Eastern Associated Coal Corp. v. Dir., OWCP, — F.3d —- (4th Cir. 2013).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)