Bowman Coal Company, Incorpora v. DOWCP

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to file supplemental brief(s) [999169338-2] Originating case number: 11-0438-BLA Copies to all parties and the district court/agency. [999195900].. [12-1642]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1642

BOWMAN COAL COMPANY, INCORPORATED;
MERCANTILE REASSURANCE COMPANY,

AMERICAN

BUSINESS

&

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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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. §§ 901945 (West 2007 & Supp. 2013).

Employer argues that the ALJ

erred in awarding counsel and his legal assistants the requested
hourly

rates

impermissible,

and
thus

that

quarter-hour

rendering

the

billing
number

of

increments
hours

are

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)
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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.
Supreme

Court

or

this

court

sitting

en

banc

can

Only the
do

that.”

(internal quotation marks and citation omitted)).
Accordingly,
file

a

supplemental

review.
legal
before

although
brief,

we

we

grant

deny

Employer’s

Employer’s

motion

petition

to
for

We dispense with oral argument because the facts and

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
PETITION DENIED

as prima facie evidence of the facts stated in them”) (internal
alteration and quotation marks omitted).

3