Vialpando v. Chevron Mining, Inc.
Filing
33
REPORT AND RECOMMENDATIONS by Magistrate Judge Jerry H. Ritter as to the amount of attorneys' fees and costs to be awarded. Objections to R&R due by 6/17/2019. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (plp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
FILBERT C. VIALPANDO,
Plaintiff,
v.
No. 1:18-cv-00251-BRB-JHR
CHEVRON MINING INC.,
Defendant.
MAGISTRATE JUDGE’S PROPOSED FINDINGS AND RECOMMENDATION
AS TO THE AMOUNT OF ATTORNEYS’ FEES AND COSTS TO BE AWARDED
This matter comes before the Court on Plaintiff’s Motion for Award of Attorneys’ Fees and
Costs [Doc. 26] filed on January 21, 2019. On February 12, 2019, United States Circuit Judge
Bobby R. Baldock granted Plaintiff’s motion and referred the matter to U.S. Magistrate Judge
Jerry H. Ritter for a Report and Recommendation as to the amount of fees and costs to be awarded.
[Doc. 32]. Having reviewed the parties’ submissions and controlling law, the undersigned presents
these proposed findings and recommends, subject to consideration of the parties’ objections if any,
that the Court award Plaintiff $13,620.88 in attorneys’ fees and costs.
I.
BACKGROUND
Plaintiff Filbert Vialpando worked for Chevron Mining, Inc. at the York Canyon coal mine
in New Mexico for nearly 29 years. [Doc. 19, p. 2]. Plaintiff contracted pneumoconiosis, a disease
commonly known as “black lung.” [Id.]. In February 2011, Plaintiff filed a claim for benefits with
the U.S. Department of Labor Office of Workers’ Compensation Programs (OWCP) under the
Black Lung Benefits Act (BLBA) 30 U.S.C. §§ 901-944. [Id.]. The Director of the OWCP issued
a Proposed Decision and Order awarding Plaintiff $12,197.90 in back dated benefits and continued
monthly payments of $938.30. [Id.].
Chevron declined to pay any benefits while it sought a formal hearing before an
administrative law judge (ALJ) and a subsequent appeal of the ALJ’s Decision and Order awarding
benefits to the U.S. Department of Labor’s Benefits Review Board (BRB). [Id., pp. 3-4]. In July
2017, the BRB affirmed the ALJ’s Decision and Order Awarding Benefits. [Id., p. 4]. Plaintiff
brought this action to enforce payment of additional compensation and interest arising from
Chevron’s alleged late payment of benefits awarded under the BLBA from February 2011 to
December 2017. [Doc. 1, p. 1; Doc. 19, p. 5].
The parties each filed motions for summary judgment on the issue of whether Plaintiff was
entitled to twenty percent additional compensation and interest on Chevron’s allegedly untimely
payments of the lump sum and monthly benefits awarded. [Doc. 11; Doc. 15]. The Court found
that Chevron’s payment of the lump sum benefit was timely, but its payment of monthly benefit
payments was not. [Doc. 19, pp. 11-13]. Accordingly, the Court held, pursuant to 30 U.S.C. § 932
(a) and (d), 33 U.S.C. § 914(f), and 20 C.F.R. §§ 725.607-.608 (2016), that Plaintiff was only
entitled to additional compensation and interest on the untimely monthly benefit payments. [Doc.
19, pp. 11-13].
Pursuant to 30 U.S.C. § 932(a), 33 U.S.C. § 928, and 20 C.F.R. 725.366-.367, Plaintiff
moved for an award of attorneys’ fees and costs relative to the pursuit of the additional
compensation and interest awarded in this action. [Doc. 26]. The Court granted the Motion and
referred the matter to U.S. Magistrate Judge Jerry H. Ritter to determine the amount of attorneys’
fees and costs to be awarded. [Doc. 32].
2
II.
LEGAL STANDARDS
Under 20 C.F.R. § 725.366(b), attorneys’ fees awarded must be “reasonably commensurate
with the necessary work done” and must take into account several factors, including, “the quality
of the representation, the qualifications of the representative, the complexity of the legal issues
involved, the level of proceedings to which the claim was raised, the level at which the
representative entered the proceedings, and any other information which may be relevant to the
amount of fee requested.” The party seeking attorneys’ fees has the burden of proving that the rate
claimed and the hours worked are reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
Successful claimants under the BLBA may also seek compensation for the services of
support staff such as law clerks and paralegals. See 20 C.F.R. § 725.366(a); 20 C.F.R. §
802.203(d)(2); see also Missouri v. Jenkins, 491 U.S. 274, 285, 109 S.Ct. 2463, 105 L.Ed.2d 229
(1989) (noting the “self-evident proposition that the ‘reasonable attorney’s fee’ provided for by
statute [under 42 U.S.C. § 1988] should compensate the work of paralegals, as well as that of
attorneys”). The rate awarded for such services “shall be based on what is reasonable and
customary in the area where the services were rendered for a person of that particular professional
status.” 20 C.F.R. § 802.203(d)(4). The party seeking fees must justify the hourly rates requested
for litigation support staff. See Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 969-70 (D.C.
Cir. 2004).
III.
ANALYSIS
A. The Law Regarding Attorneys’ Fees
“To determine the reasonableness of a fee request, a court must begin by calculating the
so-called ‘lodestar amount’ of a fee, and a claimant is entitled to the presumption that this lodestar
amount reflects a ‘reasonable’ fee.” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir.
3
1998). The lodestar is “‘the number of hours reasonably expended on the litigation multiplied by
a reasonable hourly rate,’ which produces a presumptively reasonable fee that may in rare
circumstances be adjusted to account for the presence of special circumstances.” Anchondo v.
Anderson, Crenshaw & Assoc., LLC, 616 F.3d 1098, 1102 (10th Cir. 2010) (quoting Hensley, 461
U.S. at 433). The party requesting attorney fees bears the burden of proving the two components
used to calculate the fee award: (1) the appropriate hourly rate and (2) the amount of hours spent
on the case. See United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1233 (10th
Cir. 2000). Once the Court makes these two determinations, the fee “claimant is entitled to the
presumption that this lodestar amount reflects a ‘reasonable’ fee.” Robinson, 160 F.3d at 1281.
“To determine what constitutes a reasonable rate, the district court considers the prevailing
market rate in the relevant community.” Lippoldt v. Cole, 468 F.3d 1204, 1224-25 (10th Cir.
2006)). The party seeking to fees must provide the district court with sufficient information to
evaluate prevailing market rates. See Id. at 1225. That party must also demonstrate that the rates
are similar to rates for similar services by “lawyers of reasonably comparable skill, experience,
and reputation” in the relevant community and for similar work. Blum v. Stenson, 465 U.S. 886,
895 n.11 (1984); see Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1255-56 (10th Cir. 1998);
Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983) (“The hourly rate should be based on the
lawyers’ skill and experience in civil rights or analogous litigation.”), overruled in part on other
grounds, Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711, 725 (1987).
“The determination of a traditional market rate is especially problematic in the context of
claims brought under the BLBA” in light of its “general prohibition of fee agreements between
counsel and prospective claimants.” E. Associated Coal Corp. v. Dir., Office of Workers’ Comp.
Programs, 724 F.3d 561, 571-72 (4th Cir. 2013); see 33 U.S.C. § 928(e); 20 C.F.R. § 802.203(f);
4
Westmoreland Coal Co. v. Cox, 602 F.3d 276, 290 (4th Cir. 2010) (observing that “[t]he highly
regulated markets governed by fee-shifting statutes are undoubtedly constrained and atypical”).
For this reason, in determining the market rate for attorneys’ fees in BLBA cases, courts may
consider rates deemed reasonable in prior BLBA cases. See B & G Min., Inc. v. Dir., Office of
Workers’ Comp. Programs, 522 F.3d 657, 664 (6th Cir. 2008) (recognizing that rates from prior
BLBA cases can provide inferential evidence of what the market rate is).
The party seeking fees “should submit evidence supporting the hours worked and rates
claimed.” Hensley, 461 U.S. at 434. The court may adjust the lodestar figure to reflect various
factors, including the degree of success obtained, the significance of the legal issues involved, and
the public interest advanced by the litigation. See Farrar v. Hobby, 506 U.S. 103, 120-22 (1992).
After the lodestar amount is calculated the court or agency adjudicator may adjust that figure based
on consideration of other factors. See Blanchard v. Bergeron, 489 U.S. 87, 94 (1989). In that
regard, the Department of Labor has provided regulatory guidance on considerations relevant to
the determination of an award of attorneys’ fees in black lung benefits cases. See generally 20
C.F.R. §§ 725.366-.367.
Under 20 C.F.R. § 725.366(b), “[a]ny fee approved...shall be reasonably commensurate
with the necessary work done and shall take into account the quality of the representation, the
qualifications of the representative, the complexity of the legal issues involved, the level of
proceedings to which the claim was raised, the level at which the representative entered the
proceedings, and any other information which may be relevant to the amount of fee requested.”
The Court considers the factors set forth in 20 C.F.R. § 725.366(b) in conjunction with the lodestar
analysis. To the extent that any of the factors set forth in 20 C.F.R. § 725.366(b) is incorporated
into the lodestar analysis, the Court does not consider that factor a second time as such double-
5
counting would distort the proper weight to be accorded those factors. See Perdue v. Kenny A. ex
rel. Winn, 559 U.S. 542, 553 (2010).
A. The Fee Award Sought by Plaintiff Relative to His Claim for Additional
Compensation and Interest Under the BLBA is Reasonable Under the Applicable
Analyses
In this case, Plaintiff seeks a total of $13,620.88 in attorneys’ fees and costs for the work
performed on this matter by his attorneys at the Appalachian Citizens’ Law Center in Kentucky
and by local counsel, Friedman Boyd Hollander Goldberg Urias & Ward, P.A. [Doc. 26, p. 1].
The fees and costs sought for the Appalachian Citizens’ Law Center total $9,958.38 for
31.50 hours of attorney time at $275 per hour, 6.7 hours of law student time at $100 per hour, and
$525.88 in costs. [Doc. 26, p. 1]. The fees sought for local counsel, Friedman Boyd Hollander
Goldberg Urias & Ward, P.A. total $3762.50 for 14.6 hours of attorney time at $250 per hour and
.9 hour of paralegal time at $150 per hour. [Doc. 26, p. 1].
Plaintiff notes that recent fee awards in black lung benefits cases before the United States
Courts of Appeals for the Fourth, Sixth, and Tenth Circuits have been made at rates ranging from
$275 to $425 per hour for attorney time and $100 to $125 per hour for paralegal or legal assistant
time. See Westmoreland Coal Co. v. Director, OWCP, No. 17-1996 (4th Cir. May 23, 2018); West
Virginia CWP Fund v. Bender, No. 12-2034 (4th Cir. June 8, 2015); Island Fork Constr. v.
Bowling, No. 16-4319 (6th Cir. Jan. 2, 2018); Grayson Stone & Coal Co., No. 16-4142 (6th Cir.
Nov. 29, 2017); Appleton & Ratliff Coal Corp. v. Ratliff, No. 15-4255 (6th Cir. April 19, 2017);
Island Creek Coal Co. v. Marcum, No. 15-4301 (6th Cir. Jan. 9, 2017); Spring Creek Coal Co. v.
McLean, No. 17-9515 (10th Cir. Mar. 6, 2018).
6
Plaintiff also provides fee awards in approximately 97 black lung benefits cases litigated by the
Appalachian Citizens’ Law Center. 1 [Doc. 26-1, pp. 2-4]. This volume of awards establishes that
between 2014 and 2015, working with the Appalachian Citizens’ Law Center, Plaintiff’s counsel
Evan B. Smith was routinely awarded fees for his work on cases involving black lung benefits
claims at a rate of $225 per hour. After 2015, Mr. Smith was routinely awarded fees in such cases
at a rate of $250 per hour. In 2017 and 2018, Mr. Smith was routinely awarded fees at a rate of
$275 per hour. [Doc. 26-1]. Plaintiff further notes that the both the United States Supreme Court
and the United States Court of Appeals for the Sixth Circuit have awarded fees at the rate of $100
per hour in black lung benefits cases for the same law students whose time is billed at $100 per
hour in this case.
In light of Mr. Evan’s experience litigation black lungs benefits claims and the general
litigation experience of Karen Grohman of Friedman Boyd Hollander Goldberg Urias & Ward,
P.A. the requested rates of $275 per hour and $250 per hour respectively for attorney time billed
are reasonable. See O Centro Espirita Beneficente Uniao Do Vegetal in the United States v. Duke,
___ F. Supp. 3d ___, No. 17-cv-1137, 2018 WL 5314943, at *22-23 (D.N.M. Oct. 25, 2018)
(discussing market rates in New Mexico for attorney and paralegal time and awarding fees at the
rates of $350 per hour to the attorneys. Likewise, the $125 per hour for paralegal time and $100
per hour for law student time were reasonable. See id. (awarding fees to the two paralegals whose
time was at issue in that case at the rates of $125 and $150 per hour respectively).
Both the Appalachian Citizens’ Law Center and Friedman Boyd Hollander Goldberg Urias
& Ward, P.A. submitted itemized and complete billing statements in support of the fee award
1
The example fee awards are not attached to Plaintiff's Motion due to their volume. However, they are accessible at
https://bit.ly/2RXi4KY, a link provided in Mr. Smith's declaration.[Doc. 26-1, p. 4].
7
sought. The 31.50 hours of attorney time and 6.7 hours of law student time billed by the
Appalachian Citizens’ Law Center and the 14.6 hours of attorney time and .9 hour of paralegal
time 2 reflected in each itemized statement is reasonable for the work performed in this case.
Further, the costs sought by Plaintiff in the amount of $525.88 are reasonable as they represent the
minimum cost of the court filing fee and the fees related to pro hoc vice admission of the
Appalachian Citizens’ Law Center. [Doc. 26-1, p. 12].
B. CONCLUSION
Having reviewed Plaintiff’s Motion for Award of Attorneys’ Fees and Costs [Doc. 26],
counsel’s declarations and itemized billing statements, and the evidence of market rates for
attorneys’ fees in black lung benefits litigation and in New Mexico generally, and noting that
Defendant does not oppose the amount of fees and costs sought, the undersigned recommends that
Plaintiff be awarded a total of $13,620.88 in attorneys’ fees and costs for the work performed on
this matter by his attorneys. It is further recommended that the fee award be paid separately;
$9,958.38 to the Appalachian Citizens’ Law Center and $3,762.50 to Friedman Boyd Hollander
Goldberg Urias & Ward, P.A. as requested by Plaintiff. [Doc. 26, p. 8].
________________________________________
JERRY H. RITTER
U.S. MAGISTRATE JUDGE
2
Ms. Grohman states in her declaration in support of her fees requested that she did not have a paralegal assist her
with this case. [Doc. 26-2, p. 2] Accordingly, she discounted her rate for the .9 hour she spent performing tasks that
could have been delegated to a paralegal if she'd had the benefit of such assistance. [Id.].
8
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition, they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the District Court within the fourteen-day
period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be allowed.
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?