Fifth Circuit Denies Petition, Affirms Attorney Fee Reduction

Emmanuel Stallworth alleged a shoulder injury and filed a claim for benefits under the Longshore and Harbor Workers’ Compensation Act.  At the District Director level, Claimant focused on an average weekly wage argument.  Later, an Administrative Law Judge determined that Claimant’s average weekly wage was $100 lower than Claimant alleged.  Not only was the Employer paying the right rate, it was paying a few dollars more per week.

Claimant’s counsel sought fees for his services, claiming an entitlement to $225 per hour.  The District Director disagreed, reducing counsel to $200 per hour and then dividing the entire fee petition in half because of Claimant’s limited success.  Before the Director, claimant focused on the AWW issue, which he lost at trial.  Counsel appealed the Director’s decision to the Benefits Review Board, which affirmed.  The Fifth Circuit did the same.

In Hensley v. Echerhart, 461 U.S. 424 (1983), the Supreme Court stated that where a plaintiff acheives limited success, it may be appropriate to reduce an attorney’s award to account for the limited success.  Here, the Claimant lost the AWW issue, which was the only issue at the first informal conference and a topic of discussion at the second conference.  He failed to succeed on a major issue presented to the District Director.

Finally, the Fifth Circuit determined that the District Director’s actions were neither arbitrary, capricious nor an abuse of discretion.  Hensley will allow an adjudicator to analyze specific entries or “simply reduce the award to account for the limited success.”  Hensley, 461 U.S. at 436-37.  Here, Claimant was successful on one of two issues, so the District Director reduced the fee award by one-half.  That decision, the Fifth Circuit determined, was fully supported by the evidence.

Stallworth v. Northrop Grumman Ship Sys., Inc., Case No. 09-60865 (5th Cir. 2010) (unpublished).