James Carey v. Ormet Primary Aluminum Corp, et al
NON DISPOSITIVE UNPUBLISHED OPINION FILED. Judge: TMR , Judge: FPB , Judge: EBC; granting motion for award of attorney fees in the amount of $14,706.25 filed by Petitioner Mr. James Carey [6699621-2] [10-60075]
Case: 10-60075 Document: 00511423978 Page: 1 Date Filed: 03/25/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
March 25, 2011
Lyle W. Cayce
ORMET PRIMARY ALUMINUM CORPORATION; DIRECTOR, OFFICE OF
WORKER’S COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR,
Petition for Review of an Order
of the Benefits Review Board
BRB No. 09-0462
Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM * :
Petitioner James Carey (“Carey”) moves this court for an award of
attorney’s fees for work performed before this court in connection with his
successful petition for review from a decision of the Benefits Review Board
(“BRB”). See Carey v. Ormet Primary Alum. Corp., 627 F.3d 979 (5th Cir. 2010).
We solicited briefing from the parties, including the federal respondent, on
whether “this court has the authority to award Carey attorney’s fees for work
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
Case: 10-60075 Document: 00511423978 Page: 2 Date Filed: 03/25/2011
performed before this court under [33 U.S.C.] § 928(b) of the [Longshore and
Harbor Workers’ Compensation Act] where this court did not address, and did
not resolve in Carey’s favor, a dispute over liability for compensation.” Our
precedent dictates that we have such authority and we GRANT Carey’s motion.
Section 28 provides, in part, that:
If the employer or carrier refuse to accept such written
recommendation, within fourteen days after its receipt by them,
they shall pay or tender to the employee in writing the additional
compensation, if any, to which they believe the employee is entitled.
If the employee refuses to accept such payment or tender of
compensation, and thereafter utilizes the services of an attorney at
law, and if the compensation thereafter awarded is greater than the
amount paid or tendered by the employer or carrier, a reasonable
attorney’s fee based solely upon the difference between the amount
awarded and the amount tendered or paid shall be awarded in
addition to the amount of compensation. . . . If the claimant is
successful in review proceedings before the Board or court in any
such case an award may be made in favor of the claimant and
against the employer or carrier for a reasonable attorney’s fee for
claimant’s counsel in accord with the above provisions. In all other
cases any claim for legal services shall not be assessed against the
employer or carrier.
33 U.S.C. § 928(b).
In Boland Marine & Mfg. Co. v. Rihner, the only question before the court
was the respondent’s liability for attorney’s fees under the LHWCA. 41 F.3d 997,
1000 (5th Cir. 1995). As in this case, Boland Marine did not involve the
petitioner’s entitlement to compensation. Id. After affirming the BRB’s award
of attorney’s fees for work performed below, we held “that Boland Marine is
responsible for Rihner’s attorney’s fees and expenses (totalling $ 5520.57) in this
appeal.” Id. at 1007 (emphasis added). It is well-settled that “one panel of this
court cannot overrule the decision of another panel.” Lowrey v. Tex. A & M Univ.
Sys., 117 F.3d 242, 247 (5th Cir. 1997). Accordingly, we have the authority to
award Carey attorney’s fees under the circumstances presented by this case. See
Case: 10-60075 Document: 00511423978 Page: 3 Date Filed: 03/25/2011
also Kerns v. Consolidation Coal Co., 247 F.3d 133, 133 (4th Cir. 2001) (granting
motion for fees on appeal where petitioner was not awarded enhanced benefits
as a result of the appeal).
Having the authority to award fees, we consider Carey’s fee petition. Carey
requests $14,706.25 for 62.75 hours of work performed by his attorneys before
this court. Although Ormet takes issues with some of the expended hours as
duplicative, its opposition to Carey’s fee petition was untimely (by several weeks)
and we will not consider it. Carey’s motion for attorney’s fees is GRANTED in
the amount of $14,706.25.
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