In a new published opinion, the Benefits Review Board (“BRB”) determined that a claimant’s attorney may recover fees for the time spent drafting a fee petition. Here, the Claimant argued that general federal fee-shifting law applies to the determination of a reasonable fee under Section 28 of the Longshore and Harbor Workers Compensation Act (“LHWCA”). Further, the United States Court of Appeals for the Third Circuit, has determined that attorneys can recover a fee for the reasonable amount of time it takes to prepare a fee petition.
The BRB agreed. Although a previous en banc BRB decision disallowed fees for the preparation of a petition on the grounds that the work was not reasonably necessary to protect a claimant’s interest, see Sproull v. Stevedoring Servs. of America, 28 Ben. Rev. Bd. Serv. (MB) 271, 277 (1994) (en banc), subsequent federal appellate decisions held differently. For instance, the Ninth Circuit held that the LHWCA authorized the award of a reasonable fee for the preparation of a fee petition. Anderson v. Director, OWCP, 91 F.3d 1322 (9th Cir. 1996). Although the Third Circuit has not specifically addressed this topic in a Section 28 context, it has previously concluded that fees are allowed for the preparation and litigation of motions for attorneys fees in other federal fee-shift statutes. See Hernandez v. Kalonowski, 146 F.3d 196, 199 (3d Cir. 1998).
Based upon this “now well-settled law,” the BRB held that “it is appropriate to award a reasonable fee for time spent preparing a fee petition in a case arising under the Act…” Here, 1.1 hours were spent preparing the fee petition, and a fee based upon that time was awarded. To the extent that Sproull conflicts with this opinion, it is overruled.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)