               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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


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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,




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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


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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


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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.




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