NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0052n.06
Case No. 18-3514
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Jan 30, 2019 DAVID R. MADDOX, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ) v. ) ON PETITION FOR REVIEW OF A ) DECISION AND ORDER OF THE LODESTAR ENERGY, INC.; DIRECTOR, ) BENEFITS REVIEW BOARD, OFFICE OF WORKERS’ COMPENSATION ) UNITED STATES DEPARTMENT PROGRAMS; UNITED STATES ) OF LABOR DEPARTMENT OF LABOR; KENTUCKY ) EMPLOYERS MUTUAL INSURANCE, ) ) Respondents. )
BEFORE: CLAY, COOK, and LARSEN, Circuit Judges.
COOK, Circuit Judge. David Maddox, claimant in this black-lung benefits case, received
an award of benefits against his employer, Lodestar Energy, Inc. At each level of review in the
Department of Labor, the adjudicators awarded fees to Maddox’s attorney, Austin Vowels, under
the fee-shifting provision of the Black Lung Benefits Act, 30 U.S.C. § 932(a). On petition for
review before this court, Vowels argues that the adjudicators abused their discretion by approving
certain hourly rates and billable hours in calculating the fee award. Finding discretion properly
exercised here, we AFFIRM. Case No. 18-3514, Maddox v. Lodestar Energy, Inc.
I.
After the successful prosecution of his client’s disability claim under the Black Lung
Benefits Act, 30 U.S.C. §§ 901–45, attorney Austin Vowels petitioned an administrative law judge
(“ALJ”) for fees and expenses totaling $12,455.49. The requested fee award represented 38 hours
of Vowels’s services billed at $250 an hour along with 16.30 hours of his paralegal’s services
billed at $150 an hour.
In his statement supporting the requested $250 hourly rate, Vowels listed his six years of
experience representing black lung claimants, his customary billing rate between $150 and $250,
and his prior awards at a $250 hourly rate in cases where his fee petition went unopposed. One of
few attorneys representing claimants in Kentucky, Vowels explained that he requested a rate on
the high end of the range because Maddox’s case required complex and specialized legal and
medical knowledge. Vowels also provided the ALJ with two fee surveys: one summarizing rates
commanded by partners at law firms across the country and the other collecting rates for Kentucky
attorneys practicing consumer law.
To support the $150 rate requested for his paralegal’s services, Vowels relied on two prior
fee awards in which the ALJ selected $100 and $150 as the appropriate hourly rates. Though the
paralegal customarily billed at rates between $100 and $150 per hour, Vowels again pointed to the
complexity of Maddox’s claim as justification.
Lodestar objected to both of the hourly rates Vowels sought as excessive. It also challenged
various billable-time entries that the company considered clerical, vague, or otherwise non-
compensable.
After reviewing Vowels’s fee petition and Lodestar’s objections, the ALJ selected lower
figures as reasonable hourly rates: $225 for Vowels and $100 for the paralegal. The ALJ found
-2- Case No. 18-3514, Maddox v. Lodestar Energy, Inc.
that Vowels had not established that he was entitled to the full $250 hourly rate. She explained
that neither the unopposed fee petitions nor the attorneys fee surveys submitted were “indicative
of the appropriate prevailing rate” for comparable attorneys working in the relevant area of black
lung claims. In selecting $225, the ALJ reasoned that, given Vowels’s $200 rate in prior fee
awards, an increase to $225 would account for inflation. The ALJ similarly assessed the
appropriate paralegal hourly rate to be $100, as Vowels submitted no evidence establishing $150
as the prevailing market rate. As to the hours billed, the ALJ disallowed 1.95 of the 38 hours of
Vowels’s services and 0.90 of the 16.30 hours of paralegal services after finding the service
performed clerical or the time requested excessive.
In all, the ALJ awarded fees totaling $9,651.25, compensating Vowels for 36.05 hours of
work at a $225 rate and the paralegal for 15.40 hours at a $100 rate. The Benefits Review Board
(BRB) affirmed the award, and Vowels appealed.
II.
We review an administrative adjudicator’s award of attorneys’ fees, including the hourly
rate selected and number of billable hours approved, for abuse of discretion. B & G Mining, Inc.
v. Dir., Office of Workers’ Comp. Programs, 522 F.3d 657, 661 (6th Cir. 2008). “An abuse of
discretion exists when the [adjudicator] applies the wrong legal standard, misapplies the correct
legal standard, or relies on clearly erroneous findings of fact.” Id. (alteration in original) (quoting
Gonter v. Hunt Valve Co., 510 F.3d 610, 616 (6th Cir. 2007)).
In an attorneys’ fees case, we primarily concern ourselves with the reasonableness of the
award. An adjudicator must award a fee “reasonably commensurate with the necessary work
done,” 20 C.F.R. § 725.366(b), and adequately compensatory to attract competent representation,
-3- Case No. 18-3514, Maddox v. Lodestar Energy, Inc.
Gonter, 510 F.3d at 616. To arrive at a reasonable fee, an adjudicator multiplies the number of
hours spent on a case by a reasonable hourly rate. B & G Mining, 522 F.3d at 661–63.
A. Reasonable Hourly Rate
An attorney’s reasonable hourly rate is calculated according to “the prevailing market rate,
defined as the rate that lawyers of comparable skill and experience can reasonably expect to
command within the venue of the court of record.” Id. at 663 (quoting Gonter, 510 F.3d at 618).
“The appropriate rate, therefore, is not necessarily the exact value sought by a particular firm, but
is rather the market rate in the venue sufficient to encourage competent representation.” Id.
Vowels, as the prevailing attorney seeking fees, has the burden of proving that the requested rates
are in line with those prevailing in the community. Blum v. Stenson, 465 U.S. 886, 895 n.11
(1984); see also Lance Coal Corp. v. Caudill, 655 F. App’x 261, 262 (6th Cir. 2016).
Vowels argues that the adjudicators ignored his evidence of market rates, pointing to the
ALJ’s refusal to rely on previous awards he received at a $250 hourly rate as an abuse of discretion.
True, “where there is only a relatively small number of comparable attorneys, like here, an
adjudicator can look to prior awards for guidance in determining a prevailing market rate.” B &
G Mining, 522 F.3d at 664. But prior awards to Vowels at a $250 hourly rate “do not set the
prevailing market rate—only the market can do that.” Id. Thus, the adjudicators could consider
the hourly rates underlying Vowels’s prior fee awards as “some inferential evidence of what a
market rate is” but maintained discretion to select a lower figure consistent with the prevailing
market rate. Id.
Here, the adjudicators did not rely on clearly erroneous findings of fact, improperly apply
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0052n.06
Case No. 18-3514
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Jan 30, 2019 DAVID R. MADDOX, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ) v. ) ON PETITION FOR REVIEW OF A ) DECISION AND ORDER OF THE LODESTAR ENERGY, INC.; DIRECTOR, ) BENEFITS REVIEW BOARD, OFFICE OF WORKERS’ COMPENSATION ) UNITED STATES DEPARTMENT PROGRAMS; UNITED STATES ) OF LABOR DEPARTMENT OF LABOR; KENTUCKY ) EMPLOYERS MUTUAL INSURANCE, ) ) Respondents. )
BEFORE: CLAY, COOK, and LARSEN, Circuit Judges.
COOK, Circuit Judge. David Maddox, claimant in this black-lung benefits case, received
an award of benefits against his employer, Lodestar Energy, Inc. At each level of review in the
Department of Labor, the adjudicators awarded fees to Maddox’s attorney, Austin Vowels, under
the fee-shifting provision of the Black Lung Benefits Act, 30 U.S.C. § 932(a). On petition for
review before this court, Vowels argues that the adjudicators abused their discretion by approving
certain hourly rates and billable hours in calculating the fee award. Finding discretion properly
exercised here, we AFFIRM. Case No. 18-3514, Maddox v. Lodestar Energy, Inc.
I.
After the successful prosecution of his client’s disability claim under the Black Lung
Benefits Act, 30 U.S.C. §§ 901–45, attorney Austin Vowels petitioned an administrative law judge
(“ALJ”) for fees and expenses totaling $12,455.49. The requested fee award represented 38 hours
of Vowels’s services billed at $250 an hour along with 16.30 hours of his paralegal’s services
billed at $150 an hour.
In his statement supporting the requested $250 hourly rate, Vowels listed his six years of
experience representing black lung claimants, his customary billing rate between $150 and $250,
and his prior awards at a $250 hourly rate in cases where his fee petition went unopposed. One of
few attorneys representing claimants in Kentucky, Vowels explained that he requested a rate on
the high end of the range because Maddox’s case required complex and specialized legal and
medical knowledge. Vowels also provided the ALJ with two fee surveys: one summarizing rates
commanded by partners at law firms across the country and the other collecting rates for Kentucky
attorneys practicing consumer law.
To support the $150 rate requested for his paralegal’s services, Vowels relied on two prior
fee awards in which the ALJ selected $100 and $150 as the appropriate hourly rates. Though the
paralegal customarily billed at rates between $100 and $150 per hour, Vowels again pointed to the
complexity of Maddox’s claim as justification.
Lodestar objected to both of the hourly rates Vowels sought as excessive. It also challenged
various billable-time entries that the company considered clerical, vague, or otherwise non-
compensable.
After reviewing Vowels’s fee petition and Lodestar’s objections, the ALJ selected lower
figures as reasonable hourly rates: $225 for Vowels and $100 for the paralegal. The ALJ found
-2- Case No. 18-3514, Maddox v. Lodestar Energy, Inc.
that Vowels had not established that he was entitled to the full $250 hourly rate. She explained
that neither the unopposed fee petitions nor the attorneys fee surveys submitted were “indicative
of the appropriate prevailing rate” for comparable attorneys working in the relevant area of black
lung claims. In selecting $225, the ALJ reasoned that, given Vowels’s $200 rate in prior fee
awards, an increase to $225 would account for inflation. The ALJ similarly assessed the
appropriate paralegal hourly rate to be $100, as Vowels submitted no evidence establishing $150
as the prevailing market rate. As to the hours billed, the ALJ disallowed 1.95 of the 38 hours of
Vowels’s services and 0.90 of the 16.30 hours of paralegal services after finding the service
performed clerical or the time requested excessive.
In all, the ALJ awarded fees totaling $9,651.25, compensating Vowels for 36.05 hours of
work at a $225 rate and the paralegal for 15.40 hours at a $100 rate. The Benefits Review Board
(BRB) affirmed the award, and Vowels appealed.
II.
We review an administrative adjudicator’s award of attorneys’ fees, including the hourly
rate selected and number of billable hours approved, for abuse of discretion. B & G Mining, Inc.
v. Dir., Office of Workers’ Comp. Programs, 522 F.3d 657, 661 (6th Cir. 2008). “An abuse of
discretion exists when the [adjudicator] applies the wrong legal standard, misapplies the correct
legal standard, or relies on clearly erroneous findings of fact.” Id. (alteration in original) (quoting
Gonter v. Hunt Valve Co., 510 F.3d 610, 616 (6th Cir. 2007)).
In an attorneys’ fees case, we primarily concern ourselves with the reasonableness of the
award. An adjudicator must award a fee “reasonably commensurate with the necessary work
done,” 20 C.F.R. § 725.366(b), and adequately compensatory to attract competent representation,
-3- Case No. 18-3514, Maddox v. Lodestar Energy, Inc.
Gonter, 510 F.3d at 616. To arrive at a reasonable fee, an adjudicator multiplies the number of
hours spent on a case by a reasonable hourly rate. B & G Mining, 522 F.3d at 661–63.
A. Reasonable Hourly Rate
An attorney’s reasonable hourly rate is calculated according to “the prevailing market rate,
defined as the rate that lawyers of comparable skill and experience can reasonably expect to
command within the venue of the court of record.” Id. at 663 (quoting Gonter, 510 F.3d at 618).
“The appropriate rate, therefore, is not necessarily the exact value sought by a particular firm, but
is rather the market rate in the venue sufficient to encourage competent representation.” Id.
Vowels, as the prevailing attorney seeking fees, has the burden of proving that the requested rates
are in line with those prevailing in the community. Blum v. Stenson, 465 U.S. 886, 895 n.11
(1984); see also Lance Coal Corp. v. Caudill, 655 F. App’x 261, 262 (6th Cir. 2016).
Vowels argues that the adjudicators ignored his evidence of market rates, pointing to the
ALJ’s refusal to rely on previous awards he received at a $250 hourly rate as an abuse of discretion.
True, “where there is only a relatively small number of comparable attorneys, like here, an
adjudicator can look to prior awards for guidance in determining a prevailing market rate.” B &
G Mining, 522 F.3d at 664. But prior awards to Vowels at a $250 hourly rate “do not set the
prevailing market rate—only the market can do that.” Id. Thus, the adjudicators could consider
the hourly rates underlying Vowels’s prior fee awards as “some inferential evidence of what a
market rate is” but maintained discretion to select a lower figure consistent with the prevailing
market rate. Id.
Here, the adjudicators did not rely on clearly erroneous findings of fact, improperly apply
the law, or use an erroneous legal standard. Instead, they considered the rates Vowels requested
and found he produced insufficient evidence to support them. Vowels submitted two surveys of
-4- Case No. 18-3514, Maddox v. Lodestar Energy, Inc.
billing rates, but neither presented evidence of comparable attorneys doing comparable work. The
first survey, showing billing rates between $230 and $1,000 for law firm partners across the
country, does not reflect the prevailing market rate for the venue of the court of record, i.e., the
prevailing market rate in Kentucky. The second, a survey of rates awarded to Kentucky attorneys
practicing consumer law, says nothing of the rate that attorneys handling black lung claims in
Kentucky would reasonably expect to command. Moreover, “state-bar surveys of rates provide
evidence of a market rate,” but, like awards in earlier cases, do not set the rate themselves. Id. at
664. Thus, the adjudicators were within their discretion to set aside the two surveys Vowels
submitted. The same goes for the unpublished BRB decisions Vowels cited, which considered the
prevailing market rate for attorneys who had practiced for at least thirty more years than Vowels.
They simply were not relevant to the prevailing market rate inquiry.
Vowels presents the same arguments in his challenge to the adjudicators’ reduction of the
paralegal’s hourly rate. Vowels once again submitted his prior unopposed fee awards showing a
$150 hourly rate for his paralegal. But, as explained, an administrative adjudicator does not abuse
her discretion in declining to give controlling weight to unopposed prior fee awards. Vowels’s
other evidence about the paralegal’s credentials likewise does not reflect the market for paralegal
services and therefore cannot establish $150 as the prevailing rate. Because Vowels produced
insufficient evidence to support an hourly rate of $150 for his paralegal, the adjudicators acted
within their discretion when they reduced the paralegal’s hourly rate to $100.
B. Allowable Hours
To arrive at an award “reasonably commensurate with the necessary work done,” 20 C.F.R.
§ 725.366(b), agency adjudicators must review for and exclude “excessive, redundant, or
otherwise unnecessary” time entries. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Our review
-5- Case No. 18-3514, Maddox v. Lodestar Energy, Inc.
for abuse of discretion affords the ALJ and the BRB considerable deference in deciding whether
hours represented in a fee petition are excessive. See B & G Mining, 522 F.3d at 666–67; see also
Zeigler Coal Co. v. Dir., Office of Workers’ Comp. Programs, 326 F.3d 894, 902–903 (7th Cir.
2003). “As long as the total number of billable hours is reasonable in relation to the work
performed” and the adjudicators’ decision is supported by the record, the award should be
affirmed. B & G Mining, 522 F.3d at 666.
Vowels contends that the ALJ arbitrarily reduced or disallowed billable time entries that
she deemed clerical, excessive, or otherwise non-compensable. In fact, the ALJ and BRB
conducted thorough reviews and reached conclusions well supported by the record that certain
tasks at issue were clerical. For example, the ALJ reviewed each challenged billing entry on an
individual basis and reduced the time entries in the few instances where the task descriptions
revealed their clerical nature by mentioning invoices and transcript orders. Because the record
shows the adjudicators carefully reviewed Vowels’s submission and because they are “in a much
better position than the appellate court to make this determination,” Zeigler Coal, 326 F.3d at 903,
we find no abuse of discretion in the hours awarded.
III.
We give considerable deference to the fees awarded by administrative adjudicators, lest a
request for attorneys’ fees “metastasize into ‘a second major litigation.’” B & G Mining, 522 F.3d
at 666 (quoting Hensley, 461 U.S. at 437)). In view of this deferential standard, we discern no
abuse of discretion in the fees awarded by the ALJ or BRB. We AFFIRM.
-6-