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Administrative – Black Lung Benefits – Statutory Presumption – Lawyer’s Hourly Rate

Medical tests raised the question of cancer as the diagnosis for a mass in a coal miner’s lungs, but additional tests also showed pneumoconiosis, and the 4th Circuit affirms the ALJ’s decision to award federal black lung benefits to the miner; however, the court remands for reconsideration of the award of attorney’s fees, which cannot be assessed without first determining a prevailing hourly rate for the attorney’s compensation.

Contrary to appellant coal company’s claim, the ALJ’s opinion makes clear that she found the presumption of disease established not because she had placed any unmet burden on the coal company, but rather because the evidence in the record did not amount to affirmative evidence sufficient to cause the miner’s evidence satisfying § 921(c)(3) to lost force. This approach is legally proper.

Further, the ALJ’s decision was supported by substantial evidence. The finding of statutory complicated pneumoconiosis was based on all the available evidence, not just the 2005 biopsy. The ALJ also reasoned that because the 2005 biopsy showed signs of pneumoconiosis or cancer, and cancer had since been ruled out, the record strongly indicated that pneumoconiosis was what caused the opacities found in the miner’s tests, the results of which had not been questioned by the coal company’s experts.

However, we find the ALJ abused her discretion in not explicitly establishing a prevailing hourly rate as the guide for her analysis of attorney’s fees.

The miner’s counsel relied on the Altman Weil Survey of Law Firm Economics, which lists the hourly rates for attorneys in the South Atlantic Region and the Mid-Atlantic Region. The lawyer stated he knew of no other attorneys who currently handle black lung work in Virginia or take new cases in this area of law. He explained it is almost impossible to find attorneys who perform this work.

The ALJ seemed unconvinced that the Altman Weil survey was an accurate indicator of the prevailing hourly rate. She determined a reasonable rate on her own, taking into account, among other factors, the low rates of success for claimants in black lung litigation and the contingent nature of the attorney’s fees.

We find that, like the district court in Robinson v. Equifax Info. Servs. LLC, 560 F.3d 235 (4th Cir. 2009), the ALJ here erred by determining a reasonable hourly rate in the absence of satisfactory specific evidence of the prevailing market rates. We do not question that there are few other attorneys doing similar work in the same area. The highly regulated markets governed by fee-shifting statutes are undoubtedly constrained and atypical. Under our precedent, however, that does not excuse the need to ascertain a reasonable prevailing rate. We have recognized a range of sources from which to draw. The lawyer could have submitted evidence of fees received in the past, affidavits of other lawyers familiar with the necessary skills in comparable administrative matters.

We find the ALJ erred in excusing the lawyer from his well-established burden to provide evidence of an applicable prevailing rate as a starting point for the attorney-fee analysis. We vacate the fee award and remand for further proceedings.

Affirmed in part, vacated in part and remanded.

Westmoreland Coal Co. v. Cox (Duncan, J.) No. 09-1240, April 8, 2010; On Petition for Review; Douglas A. Smoot for petitioner; Ryan Gilligan for respondents. VLW 010-2-086, 25 pp.

VLW 010-2-086

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