United States District Court, D. New Mexico
FILBERT C. VIALPANDO, Plaintiff,
CHEVRON MINING INC., Defendant.
MAGISTRATE JUDGE'S SUPPLEMENTAL PROPOSED FINDINGS
AND RECOMMENDATION AS TO THE AMOUNT OF ATTORNEYS' FEES
AND COSTS TO BE AWARDED
H. RITTER U.S. MAGISTRATE JUDGE.
matter comes before the Court on Plaintiff's Motion
for Award of Attorneys' Fees and Costs
[Doc. 26] filed on January 21, 2019');">19 and Plaintiff's
Response to Magistrate Judge's Proposed Findings
and Recommendation as to the Amount of Attorneys' Fees
and Costs to be Awarded [Doc. 34]. On February 12, 2019');">19,
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]. The Magistrate Judge's
Proposed Findings and Recommendation as to the Amount of
Attorneys' Fees and Costs to be Awarded
(PFRD) was filed June 3, 2019');">19. [Doc. 33]. As Plaintiff notes
in his Response, his request for the attorneys' fees
incurred in defending his Motion for Award of
Attorneys' Fees and Costs was not addressed
in the initial PFRD. [Doc. 26]. [Doc. 34]. Having reviewed
the 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 an additional $962.50 in attorneys'
Filbert Vialpando worked for Chevron Mining, Inc. at the York
Canyon coal mine in New Mexico for nearly 29 years. [Doc. 19');">19,
p. 2]. Plaintiff contracted pneumoconiosis, a disease
commonly known as “black lung” and subsequently
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.]. Plaintiff was awarded $12, 19');">197.90 in
back dated benefits and continued monthly payments of
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');">19, p. 5');">p. 5].
Court held that Plaintiff was entitled to additional
compensation and interest on the monthly benefit payments,
which were untimely. [Doc. 19');">19, pp. 11-13]. The Court also
granted Plaintiff's Motion for Award of
Attorneys' Fees and Costs [Doc. 26] and the matter
was referred to U.S. Magistrate Judge Jerry H. Ritter to
determine the amount of attorneys' fees and costs to be
awarded. [Doc. 32]. On June 3, 2019');">19, the PFRD was filed
recommending that the Court award Plaintiff the $13, 620.88
in attorneys' fees and costs requested in his Motion.
[Doc. 33, p. 1, 8]. Plaintiff's request for
attorneys' fees for preparing his Reply in Support of
Award of Attorneys' Fees and Costs [Doc. 29], which
was made in the Reply itself, was not addressed in the
initial PFRD. [Doc. 33]. In order to give the parties an
opportunity to object to the proposed findings and
recommendation as to this request, it is addressed in this
supplement to the initial PFRD.
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 (19');">1983).
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 (19');">1989) (noting the “self-evident
proposition that the ‘reasonable attorney's
fee' provided for by statute [under 42 U.S.C. §
19');">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.
The Law Regarding Attorneys' Fees
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. 19');">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., 19');">19');">205 F.3d 1219');">19, 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.
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 (19');">1984); see Case v.
Unified Sch. Dist. No. 233, 157 F.3d 1243, 1255-56 (10th
Cir. 19');">1998); Ramos v. Lamm, 713 F.2d 546, 555 (10th
Cir. 19');">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 (19');">1987).
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); 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 ...