Newport News Shipbuilding and Dry Dock Co. v. Holiday

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NEWPORT NEWS SHIPBUILDING AND 

DRY DOCK COMPANY,

Petitioner,

v.

 No. 08-1129

HARRY HOLIDAY; DIRECTOR,

OFFICE OF WORKERS’ COMPENSATION

PROGRAMS,

Respondents.



HARRY HOLIDAY, 

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’  No. 08-1122

COMPENSATION PROGRAMS; NEWPORT

NEWS SHIPBUILDING AND DRY DOCK

COMPANY,

Respondents.



On Petitions for Review of an Order

of the Benefits Review Board.

(BRB-07-0870)

Argued: September 22, 2009

Decided: December 29, 2009

2 NEWPORT NEWS SHIPBUILDING v. HOLIDAY

Before NIEMEYER and DUNCAN, Circuit Judges,

and James P. JONES, Chief United States District Judge for

the Western District of Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by published

opinion. Judge Duncan wrote the opinion, in which Judge

Niemeyer and Judge Jones joined.

COUNSEL

ARGUED: Jonathan Henry Walker, MASON, MASON,

WALKER & HEDRICK, PC, Newport News, Virginia, for

Newport News Shipbuilding and Dry Dock Company. Joshua

Thomas Gillelan, II, LONGSHORE CLAIMANTS

NATIONAL LAW CENTER, Washington, D.C., for Harry

Holiday. ON BRIEF: Ralph R. Lorberbaum, ZIPPERER,

LORBERBAUM & BEAUVAIS, Savannah, Georgia, for

Harry Holiday.

OPINION

DUNCAN, Circuit Judge:

Newport News Shipbuilding and Dry Dock Company

("Newport News") and Harry Holiday ("Holiday") petition

and cross-petition for review from a final order of the Depart-

ment of Labor’s Benefits Review Board (the "BRB"). The

BRB held that Newport News had not provided substantial

evidence to rebut a presumption of compensability that the

Longshore and Harbor Workers’ Compensation Act (the

"LHWCA") provided Holiday once he made out his prima

facie case of workplace related aggravation-injury. The BRB

also awarded Holiday’s appellate counsel $250 per hour,

NEWPORT NEWS SHIPBUILDING v. HOLIDAY 3

down from his requested hourly rate of $420 per hour, and

deducted 1.05 hours from the total time he claimed. For the

reasons set forth below, we affirm in part, vacate in part, and

remand for further proceedings consistent with this opinion.

I.

Holiday worked as a longshoreman for Newport News

from early 2001 until February 2004. He worked principally

as a nuclear pipefitter at the main yard, but occasionally took

overtime assignments at the nearby Copeland industrial park

("Copeland Park").1 On Saturday, January 31, 2004, Holiday

was assembling metal racks at Copeland Park when he experi-

enced pain in his back. Holiday reported the pain to his super-

visor there, but declined medical attention. On February 10,

2004, Holiday was at work in the main yard, drilling holes in

boxes for mounting. This required him to press down on a

drill and bend over repeatedly to pick up the boxes. At one

point, Holiday bent over to reach a box on the ground and felt

his back give out. He stood hunched over, unable to move,

until discovered by two colleagues who escorted him to the

medical clinic.

In December 2004, Holiday filed a claim for total tempo-

rary disability compensation under the LHWCA with the Dis-

trict Director for the Department of Labor, in Norfolk, Virginia.2

Because Holiday had moved to Augusta, Georgia by this

time, his case was assigned to an Administrative Law Judge

(an "ALJ") in Savannah. The ALJ held a hearing. He first

found that Holiday sufficiently alleged a back injury on Janu-

1

The parties stipulate that Holiday suffered an injury on January 31 at

Copeland Park, a job site beyond the LHWCA’s auspice, and that he was

working at a site within the LHWCA’s domain—the main shipyard—on

February 10 when his back gave out.

2

Holiday did not file for compensation under the LHWCA until Decem-

ber 2004 because he was receiving compensation under Virginia’s work-

ers’ compensation program.

4 NEWPORT NEWS SHIPBUILDING v. HOLIDAY

ary 31, and a worsening of the condition on February 10.

Therefore, under the terms of the LHWCA, the ALJ credited

Holiday with a prima facie case of compensability, creating

a presumption of recovery under § 920(a) of that statute.

After he determined that Holiday had established a prima

facie case, the ALJ found that Newport News had provided

substantial evidence to rebut the presumption, knocking it out

of play. To make this finding, the ALJ expressly relied on

three pieces of evidence from that which Newport News pro-

vided.

First, the ALJ relied on Holiday’s accident questionnaire,

completed on February 26, 2004. It stated that Holiday’s back

began to hurt on January 31, but that he finished out the

weekend of overtime and returned to his regular shifts on

Monday, though with continued pain. Despite this pain, Holi-

day consistently declined medical attention. Then on February

10, his back still hurt but spasmed when he bent over to pick

up a box; at that point, Holiday sought medical attention.

Second, the ALJ considered deposition testimony of New-

port News shipyard supervisor Richard T. Jay. Jay deposed

that Holiday had not gone to work on Monday, February 2,

but had worked the rest of the week, mostly driving a forklift

and doing work requiring him to bend and lift twenty- to

thirty-pound pieces of materiel. During that period, Holiday

also complained periodically about his back.3

Third, the ALJ relied on two responses provided by Holi-

day in his "Claim for Compensation" form. As to where the

accident occurred, Holiday filled in: "Building 610, Copeland

Park, Newport News, VA; back gave out while in shipyard."

J.A. 113. When asked for a description of the accident, Holi-

3

Holiday’s counsel before the ALJ specifically asked Jay if Holiday’s

condition got progressively worse throughout the week, and Jay deposed

that he did not know.

NEWPORT NEWS SHIPBUILDING v. HOLIDAY 5

day noted: "Employee was working in Bldg. 610 putting up

racks to store material; later that day, back started bothering

him; continued to work with increasing pain in back for a

couple of weeks; then, while bending over to pick up a box,

his back gave out." Id.

Evaluating the case without the presumption, the ALJ held

for Newport News. Holiday appealed the ALJ’s decision to

the BRB, in Washington, D.C. On appeal, Holiday procured

new counsel, Joshua T. Gillelan ("Gillelan"), based in Wash-

ington, D.C. Gillelan did all the work associated with the

appeal in Washington. The parties did not appear before the

BRB to argue. The BRB concluded that the ALJ relied upon

insufficient evidence to find the presumption rebutted and

reversed, remanding for the ALJ to reconsider the question in

light of the entire evidentiary record. On remand, the ALJ

considered all of the evidence that Newport News had put for-

ward, but found it insufficient to rebut. Newport News moved

the ALJ to reconsider. The ALJ granted the motion, but

reached the same conclusion.

Newport News then appealed to the BRB, requesting only

a summary affirmance, which is a predicate final order to

petitioning this court for review. In its request, Newport News

appealed "only the [BRB]’s ruling in its prior decision that

[the] employer did not rebut the Section 20(a) presumption."

J.A. 195. The BRB affirmed the ALJ’s remand determina-

tions, noting that Newport News had not challenged them.

In its appeal, Newport News protested Gillelan’s applica-

tion for his fee award, to which he was entitled under the

LHWCA for successfully appealing the ALJ’s initial determi-

nation. Gillelan had requested an award of $9,420, based on

an hourly rate of $420 per hour and a total of 22 hours of

work on the appeal. Gillelan based his request on his belief

that he should be paid a fee commensurate with other Wash-

ington, D.C. attorneys. The BRB disagreed, stating that $250

per hour would be a reasonable hourly rate in Georgia. The

6 NEWPORT NEWS SHIPBUILDING v. HOLIDAY

BRB also disallowed 1.05 hours of Gillelan’s claimed time of

22 hours, holding that it was not sufficiently related to litiga-

tion before the BRB.

Having obtained a final order, Newport News petitioned

this court for review of the BRB’s legal conclusion on the

question of substantial evidence. Gillelan cross-petitioned for

review of his fee award. We possess jurisdiction over a peti-

tion and cross-petition for review of a final BRB order under

33 U.S.C. § 921(c).

II.

We first address Newport News’s petition. We review the

BRB’s legal conclusions de novo. Scott v. Mason Coal Co.,

289 F.3d 263, 267 (4th Cir. 2002). We examine the record

independently to determine whether the ALJ’s initial decision

was supported by substantial evidence. Id.

The Longshore and Harbor Workers’ Compensation Act,

33 U.S.C. § 901 et seq., provides a form of workers’ compen-

sation to maritime employees. To state a claim for compensa-

tion, a claimant must at least "allege (1) an injury or death (2)

that arose out of and in the course of (3) his maritime employ-

ment." Universal Mar. Corp. v. Moore, 126 F.3d 256, 262

(4th Cir. 1997). Under the LHWCA, "injury" can be either a

new harm, or the aggravation of an existing condition. New-

port News Shipbuilding & Dry Dock Co. v. Fishel, 694 F.2d

327, 329 (4th Cir. 1982). Once a claimaint makes out a prima

facie case by properly alleging a claim, § 920(a) of the

LHWCA provides a presumption of compensability, stating

that "the claim comes within the provisions of this chapter."

33 U.S.C. § 920(a); see Moore, 126 F.3d at 262. To rebut the

§ 920(a) presumption, the employer must provide "substantial

evidence" to undermine the claim. See, e.g., Moore, 126 F.3d

at 262. Where the claimant makes out a prima facie case

alleging the aggravation of a previous injury, the employer

may rebut with substantial evidence demonstrating that the

NEWPORT NEWS SHIPBUILDING v. HOLIDAY 7

claimant’s symptoms are a natural outgrowth of, or complica-

tion from, an existing predicate condition.4 See Admiralty

Coatings Corp. v. Emery, 228 F.3d 513, 517-18 (4th Cir.

2000); Dir., OWCP v. Newport News Shipbuilding & Dry

Dock Co., 138 F.3d 134, 138 (4th Cir. 1998).

Before we can review the BRB’s decision below, we must

clarify the precise issue before us. When Newport News

appealed to the BRB, its appeal was limited to "only . . . the

[BRB]’s ruling in its prior decision that [the] employer did not

rebut the Section 20(a) presumption." J.A. 195. As mentioned,

the BRB did not consider the ALJ’s decisions on remand

because Newport News did not request that. We therefore find

that Newport News has waived its challenge to consideration

of anything other than the determination the ALJ made in his

first hearing. On appeal, we will consider only whether the

three pieces of evidence the ALJ relied on in his first determi-

nation amount to substantial evidence.5

The substantial evidence standard of proof requires the

employer to put forward as much relevant factual matter as a

reasonable mind would need to accept, as one rational conclu-

4

Section 908(f), however, requires employers to pay the entire amount

of the weekly benefits to employees who are injured on the job, "even if

the ultimate disability is due in part to a pre-existing disability." Newport

News, 138 F.3d at 138. That said, "if the ultimate disability is ‘materially

and substantially greater’ than that which would have resulted from the

work-related injury without the pre-existing condition, then the employer

need only pay those benefits for 104 weeks (2 years)." Id.

5

We are aware that the failure to preserve arguments by waiving them

in the administrative forum is not a jurisdictional bar to our review. Toler

v. E. Associated Coal Co., 43 F.3d 109, 113 (4th Cir. 1995). But, the equi-

table factors counseling us to excuse such a lapse are not present here. Cf.

Rana v. United States, 812 F.2d 887, 889-90 n.2 (4th Cir. 1987) (noting

that more than 50 percent of claimants typically proceed pro se or with

representation by their Union). Further, our previously stated interests in

preserving the exhaustion requirement and respecting agency expertise are

present here. Cf. Thorn v. Itmann Coal Co., 3 F.3d 713, 717 (4th Cir.

1993).

8 NEWPORT NEWS SHIPBUILDING v. HOLIDAY

sion, that the employee’s injury did not arise out of his

employment. Milburn Colliery Co. v. Hicks, 138 F.3d 524,

528 (4th Cir. 1998). The standard requires more than a scin-

tilla of evidence, but it is not a preponderance standard. Nor-

folk Shipbuilding & Drydock Corp. v. Faulk, 228 F.3d 378,

386 (4th Cir. 2000). The employer need not show that natural

causes more likely than not explain the employee’s symp-

toms, it need only provide enough facts to support one ratio-

nal conclusion. See Moore, 126 F.3d at 263.

In this case, the BRB reversed because the three pieces of

evidence on which the ALJ relied in his initial decision failed

to address the material change in Holiday’s condition that

occurred while he worked on February 10. Newport News

argues that by proving the existence of the January 31 injury,

which caused the same symptoms as the February 10 injury,

it proffered substantial evidence that the second injury was

merely a natural outgrowth of the first. We disagree.

The three pieces of evidence relied upon by the ALJ in his

first determination demonstrate that Holiday injured his back

on January 31 and experienced a continuation of pain thereaf-

ter. But as the BRB recognized, they do not respond to the

fact that on February 10, Holiday’s back materially worsened

while he repeatedly bent over to pick up boxes and drill them.6

To accept as substantial evidence that which addresses the

former occurrence but not the latter would be to eviscerate the

aggravation component as a freestanding claim for relief

under the LHWCA. Thus, we find that the evidence relied

upon by the ALJ is, for the purpose of rebutting an allegation

of an aggravation of a prior injury, no evidence at all.7 See

6

At oral argument, counsel for Newport News spent a considerable

amount of time questioning the events of February 10, but those events

appear undisputed in the record.

7

In support of its argument that the BRB imposed too rigorous a burden,

Newport News refers us to decisions by the Fifth and Seventh Circuits in

which those courts reviewed BRB findings on substantial evidence. See

Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283 (5th Cir. 2003); Am.

Grain Trimmers, Inc. v. Dir., OWCP, 181 F.3d 810 (7th Cir. 1999) (en

banc). These cases, which do not control, are inapposite: they consider the

weight of evidence that actually addressed the employee’s claim.

NEWPORT NEWS SHIPBUILDING v. HOLIDAY 9

Bath Iron Works Corp. v. Dir., OWCP, 109 F.3d 53, 56 (1st

Cir. 1997). We agree that Newport News did not have to pro-

vide affirmative evidence directly ruling out an aggravation,

and in fact we have previously so found. See Moore, 126 F.3d

263. But no matter the nature of the evidence, it is not sub-

stantial if it cannot respond to the prima facie case in the first

place. See Parsons Corp. v. Dir., OWCP, 619 F.2d 38, 41 (9th

Cir. 1980) ("The statutory presumption . . . may be overcome

by evidence specific and comprehensive enough to sever the

potential connection between the disability and the work envi-

ronment.").

III.

We next consider Gillelan’s cross-petition for review of his

fee. When assessing a fee award, we review the application of

law to facts for abuse of discretion, making a closer examina-

tion when the criteria for determining a reasonable fee are cal-

led into question. See Rum Creek Coal Sales, Inc. v.

Caperton, 31 F.3d 169, 174 (4th Cir. 1995). A tribunal

"abuses its discretion when it acts arbitrarily or irrationally,

fails to recognize judicially recognized factors constraining its

exercise of discretion, relies on erroneous legal or factual

premises, or commits an error of law." United States v. Del-

fino, 510 F.3d 468, 470 (4th Cir. 2007) (citing United States

v. Williams, 461 F.3d 441, 445 (4th Cir. 2006); United States

v. Hedgepeth, 418 F.3d 411, 419 (4th Cir. 2005)).

The LHWCA prohibits longshore claimants’ attorneys from

entering into fee agreements with their clients. Instead, when

a claimant represented by counsel brings a successful appeal,

"there shall be awarded . . . a reasonable attorney’s fee against

the employer or carrier in an amount approved by the deputy

commissioner, Board, or court, as the case may be." 33 U.S.C.

§ 928(a). In this case, the parties agree that Gillelan has "suc-

ceeded" for purposes of obtaining a fee. The dispute is over

what he should receive.

10 NEWPORT NEWS SHIPBUILDING v. HOLIDAY

Hensley v. Eckerhart instructs that under a statutory fee-

shifting provision, "[t]he most useful starting point for deter-

mining the amount of a reasonable fee is the number of hours

reasonably expended on the litigation multiplied by a reason-

able hourly rate." 461 U.S. 424, 433 (1983); see also Grissom

v. The Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008).8 Under

this so-called "lodestar analysis", "[t]he party seeking an

award of fees should submit evidence supporting the hours

worked and rates claimed." Hensley, 461 U.S. at 433. The tri-

bunal then determines an appropriate fee. Id.

A.

We consider the hourly rate first. The Department of

Labor’s regulation interpreting this provision states that "[t]he

rate awarded by the Board shall be based on what is reason-

able and customary in the area where the services were ren-

dered for a person of that particular professional status."9 20

C.F.R. § 802.203(d)(4). In the usual case, we have said that

an attorney identifies the appropriate hourly rate by demon-

strating what similarly situated lawyers would have been able

to charge for the same service. See Depaoli v. Vacation Sales

Assocs., L.L.C., 489 F.3d 615, 622 (4th Cir. 2007). Typically,

this means an attorney will demonstrate the market rate for

services in the geographic jurisdiction of the litigation. See

Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 244 (4th

Cir. 2009). However, the BRB has the power to set awards

8

The LHWCA’s fee-shifting requirement compels us to adopt a lodestar

analysis for the BRB’s fee determinations. See City of Burlington v.

Dague, 505 U.S. 557, 561-62 (1992).

9

The BRB has no authority to set policy for the Department of Labor

and so receives no deference on its interpretation of the LHWCA. Newport

News Shipbuilding & Dry Dock Co. v. Dir., OWCP, 477 F.3d 123, 125

(4th Cir. 2007) (citing Potomac Elec. Power Co. v. Dir., OWCP, 449 U.S.

268, 279 n.18 (1980)). We are therefore not obliged to defer to the BRB’s

view of the regulation, but will consider it ourselves to determine if the

BRB has acted within its discretion in applying it. See Wood v. U.S. Dep’t

of Labor, 112 F.3d 592, 595–96 (1st Cir. 1997).

NEWPORT NEWS SHIPBUILDING v. HOLIDAY 11

with reference to its own past determinations, Newport News

Shipbuilding & Dry Dock Co. v. Brown, 376 F.3d 245, 251

(4th Cir. 2004), which undermines the ability of an attorney

to make out a reasonable hourly rate with reference to what

other attorneys earn for similar services. That said, lodestar

analysis requires far more than consideration of just these fac-

tors.

The Supreme Court has recognized these twelve factors as

guides to the tribunal’s determination of a reasonable hourly

rate in a lodestar analysis: (1) time and labor required; (2)

novelty and difficulty of the questions; (3) requisite skill

needed to perform the service properly; (4) preclusion of

other employment by the attorney due to acceptance of the

case; (5) the customary fee; (6) whether the fee is fixed or

contingent; (7) time limitations imposed by the client or the

circumstances; (8) amount involved and the results obtained;

(9) the experience, reputation, and ability of the attorney; (10)

the "undesirability" of the case; (11) the nature and length of

the professional relationship with the client; and (12) awards

in similar cases. Blanchard v. Bergeron, 489 U.S. 87, 92 n.5

(1989); Robinson, 560 F.3d at 243-44. The ultimate conclu-

sion rests with the tribunal, which is closer to the adjudication

and has a better understanding of this inherently factual mat-

ter. Goodwin v. Metts, 973 F.2d 378, 384 (4th Cir. 1992) (cit-

ing Hensley, 461 U.S. at 437). The tribunal must assess an

overall reasonable rate with actual attention to the facts of a

given case, and provide "detailed findings of fact with regard

to the factors considered." Barber v. Kimbrell’s, Inc., 577

F.2d 216, 226 (4th Cir. 1978); see also Schlacher v. Law

Offices of Phillip J. Rotche & Assocs., P.C., 574 F.3d 852,

857 (7th Cir. 2009) ("A district court facilitates appellate

review by making specific findings en route to a fee calcula-

tion, and therefore we have reversed when we could not dis-

cern whether the district court arrived at its fee award by

using the proper factors.").

In this case, the BRB stated only that "the prevailing hourly

rate for claimants’ attorneys in the geographic area where this

12 NEWPORT NEWS SHIPBUILDING v. HOLIDAY

case arose is $250." J.A. 197. The BRB then cited its ten-year

old decision in Hargrove v. Strachan Shipping Co., 32 BRBS

224, at *4 (1998), aff’g on recon., 32 BRBS 11 (1998), in

which it held that a successful Savannah-based attorney was

entitled to $200 per hour, in keeping with fees it had awarded

successful attorneys in that region. The BRB therefore took a

ten-year old hourly rate, assumed it was a reasonable basis for

an hourly rate today, and adjusted it upwards by the arbitrary

amount of $50.

This is an abuse of discretion. The BRB generally can look

to previous awards in the relevant marketplace as a barometer

for how much to award counsel in the immediate case. Brown,

376 F.3d at 251. But, an hourly rate appropriate ten years ago,

arbitrarily adjusted with no regard to the facts of the case or

the lodestar factors, is not necessarily appropriate today. See

Barber, 577 F.2d at 226; see also Christensen v. Stevedoring

Servs. of Am., 557 F.3d 1049, 1054-55 (9th Cir. 2009) (The

BRB must "make . . . determinations [of the relevant commu-

nity and the reasonable hourly rate] with sufficient frequency

that it can be confident—and we can be confident in review-

ing its decisions—that its fee awards are based on current

rather than merely historical market conditions."). We there-

fore remand this matter to the BRB for a determination and

explanation of the appropriate hourly rate.10

On remand, the BRB should consider the proper geo-

graphic market in which to determine the correct hourly rate.

We have previously provided guidance on this issue. In

National Wildlife Federation v. Hanson, we held that the

"[t]he community in which the court sits is the appropriate

10

Ordinary administrative principles counsel that on remand, the BRB

determine the reasonable fee in the first instance. Congress has tasked the

BRB with this, 33 U.S.C. § 928, and the Secretary of Labor has furthered

that directive, 29 C.F.R. 802.203(d)(4). Where the Secretary has reason-

ably construed the LHWCA, we defer. See Mowbray v. Kozlowski, 914

F.2d 593, 598 (4th Cir. 1990) (deferring to the Secretary’s interpretation

of the Medicaid statute).

NEWPORT NEWS SHIPBUILDING v. HOLIDAY 13

point for selecting the proper rate." 859 F.2d 313, 317 (4th

Cir. 1988). However, we then identified a two-step test for tri-

bunals to utilize when considering whether extrajurisdictional

counsel were entitled to home market rates. First, tribunals

should ask if extrajurisdictional counsel rendered services that

were truly available in the visited market. Id. Second, tribu-

nals should ask if the party that hired extrajurisdictional attor-

ney chose reasonably, or whether they chose an unnecessarily

expensive attorney. Id.

In Rum Creek, we looked specifically at extrajurisdictional

appellate counsel. In that case, a West Virginia coal company

hired a Virginia law firm to litigate complex questions on its

behalf. The law firm satisfied the Hanson factors, and much

of its work involved appellate litigation before this court,

which sits in Richmond. We stated that as far as the appeals

went, the Hanson test "need not even be considered." 31 F.3d

at 179. Rum Creek does not suggest that appellate counsel

automatically qualify for their home market rates; it recog-

nizes that Hanson turns on inquiries about the lawyer and cli-

ent, not the posture of the litigation. Thus, the BRB should

consider Hanson and Rum Creek to decide if Gillelan’s hourly

rate should be determined with reference to Georgia or Wash-

ington, D.C.

Also, the BRB should explain how it determines a reason-

able rate within the relevant geographic market. Gillelan

argues that the BRB was constrained to consider the Laffey

matrix because he is a Washington, D.C. attorney.11 We dis-

agree, for the mere fact that Gillelan practices in Washington,

D.C. is insufficient to accord him that market, let alone any

11

The Laffey Matrix, named for Laffey v. Northwest Airlines, Inc., 572

F. Supp. 354 (D.D.C. 1983), overrruled on other grounds by Laffey v. Nw.

Airlines, Inc., 746 F.2d 4 (D.D.C. 1984), is a fee schedule purporting to

provide hourly rates for attorneys of a broad spectrum of practice experi-

ence and expertise in Washington, D.C. See http://www.laffeymatrix.com/

see.html.

14 NEWPORT NEWS SHIPBUILDING v. HOLIDAY

rate within it. Further, the Laffey matrix is a useful starting

point to determine fees, not a required referent. See Grissom,

549 F.3d at 322. The BRB may consider, but is not bound by,

the Laffey matrix.

B.

Next, we consider the 22 hours Gillelan claimed. The

LHWCA’s fee-shifting sections divide the labor between trial

counsel’s and appellate counsel’s fees. 33 U.S.C. §§ 928(b),

(c). Meanwhile, 29 C.F.R. § 802.203(d)(4) states that the fee

the BRB awards must reasonably relate to work before the

BRB. In this case, the BRB deducted 1.05 hours from Gille-

lan’s total requested time because it found those hours insuffi-

ciently related to appellate work. This was not an abuse of

discretion.

Gillelan spent 0.65 hours attempting to obtain the record

from the BRB so that the ALJ could conduct his remand con-

sideration. As Gillelan concedes that he spent this time so that

Holiday could have his (second) day before the ALJ, these

actions clearly did not reasonably relate to appellate work.

The remaining 0.4 hours of the 1.05 hours at issue represent

slightly less than half of the 0.9 hours that Gillelan claims he

spent "securing and reviewing a copy of the ALJ’s decision

on remand [from the BRB] and preparing the fee application."

Cross-Petitioner’s Br. 58. Gillelan argues that obtaining the

remand decision was necessary because the LHWCA requires

a successful appeal before he could apply for his fee. But, Gil-

lelan knew his client had succeeded when the BRB issued its

summary affirmance order, so he had no need for the underly-

ing ALJ determination. Gillelan did not provide evidence

specifying what portion of the 0.9 hours he spent obtaining

the ALJ determination,12 so we will not say the BRB abused

12

When applying for a fee, an attorney has the burden to make out the

reasonableness of his hourly rate with specific evidence. Spell v. McDan-

iel, 824 F.2d 1380, 1402 (4th Cir. 1987). There is no logical reason not

to apply that principle to the hours aspect of the lodestar analysis.

NEWPORT NEWS SHIPBUILDING v. HOLIDAY 15

its discretion in disallowing slightly less than half that time.

The BRB therefore need not reconsider the total hours it

awarded Gillelan.

IV.

For the reasons provided, the final order of the BRB is

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.