Bowman Coal Co. v. Director, Office of Workers' Compensation Programs ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1642
BOWMAN COAL COMPANY, INCORPORATED; AMERICAN BUSINESS &
MERCANTILE REASSURANCE COMPANY,
Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; CASBY G. BOWMAN,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(11-0438-BLA)
Submitted: August 27, 2013 Decided: September 18, 2013
Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Mark E. Solomons, Laura Metcoff Klaus, GREENBERG TRAURIG LLP,
Washington, D.C., for Petitioners. Joseph E. Wolfe, Ryan C.
Gilligan, WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton,
Virginia, for Respondent Casby G. Bowman.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bowman Coal Company (“Employer”) petitions for review
of the order of the Benefits Review Board (“Board”) affirming
the Administrative Law Judge’s (“ALJ”) award of attorneys’ fees
to Casby Bowman’s counsel following the ALJ’s grant of benefits
under the Black Lung Benefits Act (“Act”), 30 U.S.C.A. §§ 901-
945 (West 2007 & Supp. 2013). Employer argues that the ALJ
erred in awarding counsel and his legal assistants the requested
hourly rates and that quarter-hour billing increments are
impermissible, thus rendering the number of hours billed
unreasonable.
In light of our recent decision in Eastern Associated
Coal Corporation v. Director, Office of Workers’ Compensation
Programs, ___ F.3d ___, 2013 WL 3929100 (4th Cir. July 31,
2013), in which we rejected each of the arguments Employer now
raises, we conclude that the ALJ did not abuse her discretion in
awarding fees. ∗ See id. at *3; see also Westmoreland Coal Co. v.
∗
We depart from Eastern Associated Coal, however, in that
we do not modify the hourly rates awarded to the legal
assistants. Unlike Eastern Associated Coal, evidence in the
record in this case demonstrated that various adjudicatory
bodies had previously awarded $50 to $100 per hour to counsel’s
legal assistants, and the ALJ noted additional fee awards, in
which the legal assistants were awarded $75 to $100 per hour.
See Eastern Assoc. Coal, 2013 WL 3929100, at *9 n.13 (noting
that “[i]t is commonplace for courts in various fee-shifting
contexts to take judicial notice of prior judgments and use them
(Continued)
2
Cox, 602 F.3d 276, 282 (4th Cir. 2010); Scotts Co. v. United
Indus. Corp., 315 F.3d 264, 271-72 n.2 (4th Cir. 2002) (“[A]
panel of this court cannot overrule, explicitly or implicitly,
the precedent set by a prior panel of this court. Only the
Supreme Court or this court sitting en banc can do that.”
(internal quotation marks and citation omitted)).
Accordingly, although we grant Employer’s motion to
file a supplemental brief, we deny Employer’s petition for
review. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
PETITION DENIED
as prima facie evidence of the facts stated in them”) (internal
alteration and quotation marks omitted).
3