Opinion
Civil Action No. 02-1155 Section "C"(3)
February 21, 2003
ORDER AND REASONS
The Court, having considered Plaintiff's Application for Attorney's Fees and Costs, the memorandum in support thereof and in opposition thereto, the record, the applicable law, the Findings and Recommendation of the United States Magistrate Judge, Plaintiff's objections to the Magistrate Judge's Findings and Recommendation and Defendant's Opposition thereto, declines to follow the Findings and Recommendation of the United States Magistrate Judge and instead issues the following opinion.
Including the Supplemental Application for Attorney's Fees and Costs filed on January 27, 2003.
By Minute Entry, dated January 16, 2003, the Court treated the Order and Reasons issued by the Magistrate Judge on January 7, 2003, as a Findings and Recommendation. ( See Rec. Doc. 16).
I. Background
Plaintiff, Richard Millet ("Millet" "Plaintiff") has represented Claimant, Jerry Gauthreaux ("Claimant") since December 23, 1991, regarding a work-related accident compensable under the Longshore Harbor Workers Compensation Act ("LHWCA" "the Act") that occurred on September 3, 1991, during his employment with Defendant, Avondale Industries, Inc. ("Avondale" "Defendant") After an unsuccessful attempt at informal resolution, the matter proceeded before the Office of Administrative Law Judges on November 13, 1995. On March 27, 1997, a Decision and Order was issued by the Administrative Law Judge ("ALJ") awarding benefits to claimant, Gauthreaux. (Rec. Doc. 18, Ex. 2). This compensation order directed Claimant's counsel to submit a fee application, which the employer, Avondale had opportunity to oppose. ( Id., p. 15).
Avondale appealed the decision of the ALJ. ( Id., Ex. 3) Likewise, Claimant appealed a portion of the ALJ's decision and requested additional compensation. ( Id., Ex. 4). On appeal, the Benefits Review Board denied Avondale's appeal, granted Claimant's appeal and remanded back to the ALJ for a determination consistent with its decision. ( Id., Ex. 5). On remand the ALJ awarded additional benefits to Claimant, which Avondale again appealed. ( Id., Exs. 6 7). On June 16, 2000, the Benefits Review Board denied Avondale's renewed appeal. ( Id., Ex. 8). Thereafter, Avondale appealed to the United States Court of Appeals for the Fifth Circuit and on April 4, 2001, the Fifth Circuit affirmed the award of benefits to Claimant, as well as the award of attorney's fees. ( Id., Ex. 10). Because Avondale did not seek review with the United States Supreme Court, the decision and awards became final on July 6, 2001.
Avondale refused to pay the fee award after final order to Millet, who in April of 2002, filed the instant action to enforce the final order of the Court of Appeals. In May of 2002, after initiation of this enforcement action, Avondale paid the total fee award to Millet. Thus, the sole remaining issue herein concerns whether Millet is entitled to recover the cost of enforcing the final judgment.
II. Analysis
Pursuant to 33 U.S.C. § 921(d) "[i]f an employer . . . fails to comply with a compensation order making an award, that has become final, any beneficiary of such award . . . may apply for the enforcement of the order" to a district court. Id. (emphasis added). In the case at bar, it is undisputed that the compensation order became a final award on July 6, 2001. It is also undisputed that this compensation order included an award of attorney's fees to Claimant's counsel.
Avondale was obligated to pay the attorney's fee award upon the decision becoming final on July 6, 2001. See Wells for Use of Rossiello v. Int'l Great Lakes Shipping Co., 693 F.2d 663, 665 (7th Cir. 1982) (Posner, J.) (finding § 921(d) provides the "machinery for judicial enforcement of attorney fee awards" under the LHWCA). "The duty to pay the attorney's fee award `directly' arises only `after the compensation award becomes final,' section 928(a), and the right to sue to enforce that duty also arises only when the award `has become final,' section 921(d)." Id. Although the Seventh Circuit reversed the district court's enforcement of the compensation order in favor of attorney Rossiello because the award had not yet become final, the Court acknowledged that once such an award did become final, "[t]he absence of such machinery [in the LHWCA to enforce a final award] for the lawyers would be a curious oversight which we hesitate to impute to the draftsmen." Id.
The general purpose of the LHWCA is to aid longshoremen. Guidry v. Booker Drilling Co. (Grace Offshore Co.), 901 F.2d 485, 487 (5th Cir. 1990); Blancq v. Hapag-Lloyd A.G., 986 F. Supp. 376, 381 (E.D.La. 1997). The provisions of the LHWCA ensure that award of attorney's fees does not diminish the compensation obtained by the claimant. Oilfield Safety, Etc. v. Harmon Unlimited, 625 F.2d 1248, 1257 (5th Cir. 1988). Additionally, congressional intent is furthered by the structure of the fee award provisions which provide incentive to attorneys to represent injured longshoremen seeking to pursue claims under the Act. Guidry, 901 F.2d at 488 ("This incentive is that such attorneys will receive the full value of the fees to which they are entitled under the Act.")
The purpose and spirit of the LHWCA is violated when an employer refuses to pay an award of attorney's fees pursuant to a final order and suffers no consequence. That result awards bad behavior and thwarts the purpose of the LFIWCA. Avondale refused to tender payment of the award to Millet for nearly one year from the date that it became final until Millet filed the instant enforcement action. The fact that Avondale promptly paid Millet upon notice of this lawsuit does not relieve Avondale of responsibility. Millet was forced to incur costs and expenses to secure payment of a final award pursuant to the provisions of the LHWCA, to which he was rightfully entitled. If Millet must bear the cost of enforcement of that final fee award then he cannot receive "the full value of the fees to which [he is] entitled under the Act." Guidry, 901 F.2d at 488.
III. Conclusion
Upon review of the motions, memorandum, the record as a whole and the applicable law, the Court finds that the purpose of the LHWCA is violated when an employer refuses to pay a final compensation order directing payment of attorney's fees. Thus, in order to receive the full value of the fees to which he is entitled under the Act, Plaintiff, Richard Millet may recover the full cost of this enforcement action, including those costs included in the Supplemental Application and Affidavit In Support of Attorney's Fees and Costs (Rec. Doc. 17).
Plaintiff's Application for Attorney's Fees and Costs (Rec. Doc. 10) detailing 20.75 hours at a rate of $175 per hour, for a total amount of $3,631.25 is fair and reasonable under the circumstances. Likewise, the request, therein, for expenses totaling $164.53 is also reasonable. Additionally, Plaintiff's Supplemental Application and Affidavit In Support of Attorney's Fees and Costs (Rec. Doc. 17) detailing 17.95 hours at a rate of $175 per hour, for a total amount of $3,141.25 is reasonable as well. Thus, Plaintiff is entitled to an award of attorney's fees in the amount of $6,772.50 ($3,631.25 + $3,141.25) and expenses in the amount of $164.53.
Accordingly, IT IS ORDERED that Plaintiff's, Richard Millet's Application for Attorney's Fees and Costs, including the Supplemental Application and Affidavit In Support of Attorney's Fees and Costs is GRANTED. IT IS FURTHER ORDERED that Plaintiff, Richard Millet is hereby awarded attorney's fees in the amount of $6,772.50 and expenses in the amount of $164.53 for a total award of $6,937.03.