Opposition Brief — Horrigan v. General Dynamics Corp.

In the :

Supreme Court of the United States

~ Ocroser Term, 1988

PETER E. HORRIGAN,

PETITIONER,

v.

GENERAL DYNAMICS CORPORATION,

RESPCNDENT.

On Petition For A Writ of Certiorari To The

United States Court of Appeals For The First Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Dona.Lp R. WarRE

(Counsel of Record)

WiiuraM B. Korre

Fo.ey, Hoac & ELIoT

One Post Office Square

Boston, MA 02109

(617) 482-1390

Counsel for Respondent

General Dynamics Corporation

Blanchard Press, Inc., Boston, Mass. — Law Printers [617] 426-6690

i

QUESTION PRESENTED

Whether an Administrative Law Judge, in a case arising

under the Longshore and Harbor Workers’ Compensation Act,

33 U.S.C. §§901 et seq. (the “Act’”), is compelled by 33 U.S.C.

§928(a) to award attorney’s fees and expenses to a claimant's

attorney for the unsuccessful prosecution of a discriminatory

discharge claim filed under Section 49 of the Act (33 U.S.C.

§948a) where a claimant has achieved partial success in a

separate claim for disability benefits under the Act?

Il

RULE 28.1 LISTING

Respondent General Dynamics Corporation’s corporate

affiliations, including all parent companies, subsidiaries

(except wholly owned subsidiaries) and affiliates is as follows:

Etudes Techniques et Constructions Aerospatiales,

Societe Anonyme (ETCA)

General Dynamics (C.I.) Limited

Mansour-General Dynamics Ltd.

Tusas Aerospace Industries, Inc.

Ankara Hilton

Mansour-General Dynamics GD (C.I.)

Perdata Corporation

Ill

TABLE OF CONTENTS

Page

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ss ngs pews ee au vas Ill

es ees kbs outs e ds ae ess IV

Rae SSI as agi ge 1

Reasons Why the Petition Should Be Denied........... 3

I. There Is No Conflict Among the Circuits on the

oS Se PE ee eee 3

II. This Case Does Not Involve a Novel Question

of Law and Turns on Its Own Facts.......... 3

et NS ee ce bac’ 6

IV

TABLE OF AUTHORITIES

Cases Page

American Stevedores, Inc. v. Salzano, 538 F.2d 933 (2nd

Sl oe dos cab eee eee 6

Atlantic and Gulf Stevedores v. Director, Office of Work-

ers’ Compensation Programs, et al., 542 F.2d 602 (3rd

CP, Fs iil ei eek btn we as dks os ek 6

Hensley v. Eckerhart, 461 U.S. 424 (1983) Sak cama aoe s 3,4

Portland Stevedoring Company v. Director, OWCP,

ke FF Oe | sere ser errr 6

Presley v. Tinsley Maintenance Service, 529 F.2d 433

i? 2. Gp ae yen scr ere 6

Statutes:

ree eh re Vee eer er ere ere l

Ca 2 oy She ha alee nas cee 4

Fei in Sa eds a he ee. eed eel Boke 5

NG ey rome ee I

Rules:

been Cee ne ET RIO). 5 ooo so os oe es geese nes 3

Miscellaneous:

1972 U.S. Code Cong. & Admin. News 4698........... 5

In the

Supreme Court of the United States

OctroBer TERM, 1988

No. 88-451

PETER E. HORRIGAN.

PETITIONER,

U.

CENERAL DYNAMICS CORPORATION.

RESPONDENT.

On Petition For A Writ of Certiorari To The

United States Court of Appeals For The First Circuit

RESPONDENT'S BRIEF IN OPPOSITION

The respondent General Dynamics Corporation respectfully

requests that this Court deny the petition for writ of certiorari

to the United States Court of Appeals for the First Circuit. The

decision of the Court of Appeals is reported at 848 F.2d 321

(1988).

Statement of the Case

Peter Horrigan (“Petitioner”), who was formerly emploved

as a crane operator at respondent General Dynamics Corpora-

tion’s Quincy Shipbuilding Division (“General Dynamics’),

filed two separate and distinct claims under the Longshore

and Harbor Workers’ Compensation Act (33 U.S.C. §§901 et

seq.) (the “Act”) in 1983. One claim sought disability benefits

due to injuries to his knee and ankle. The other claim alleged

discriminatory discharge in violation of Section 49 of the Act

(33 U.S.C. §948a). (Petition, Appendix C, p. 20a)

2

As a matter of convenience, the Administrative Law Judge

(“ALJ”) of the U.S. Department of Labor consolidated the

two claims for hearing. In December, 1983, after a full hear-

ing on the merits of both claims, the ALJ awarded Petitioner

some, but not all, of the disability benefits he had sought

under the Act. The ALJ denied the Section 49 claim, finding

that the Petitioner “was discharged for violating company

rules and for falsifying his reason for absence from work dur-

ing the period between December 14, 1981 and January 11,

1982.” (Petition, Appendix C, p. 33a) Petitioner subsequently

appealed the ALJ’s ruling on his claim for disability benefits to

the Benefits Review Board (“Board”) of the U.S. Department

of Labor. Petitioner did not appeal the ALJ's denial of his

Section 49 claim.

Petitioner's counsel submitted to the ALJ an application for

attorney's fees and expenses for his work on both the disability

claim and the Section 49 claim. Prior to ruling on this applica-

tion, the ALJ requested that Petitioner's counsel submit sup-

plemental information about his fee application and invited

the parties to file “written arguments concerning whether or

not the fee requested by [ Petitioner's] counsel is affected by my

denial of the Section 49 claim.” (Petition, Appendix C, p. 34a)

Thereafter the ALJ issued a “Supplemental Decision and

Order Granting Attorney Fee” in which he disallowed

attorney's fees ($4,000) for counsel's excessive estimates of the

hours he worked, awarded attorney's fees ($7,031.25) and

expenses ($1,602.76) to Petitioner's counsel for the partial suc-

cess in the prosecution of the claim for disability benefits, and

denied attorney's fees ($4,750.00) and expenses ($507.39) for

work associated with the unsuccessful prosecution of the Sec-

tion 49 claim, finding that it was “a separate and distinct

claim from the one for compensation” and was “completely

devoid of merit.” (Petition, Appendix D, p. 40a and p. 38a)

Petitioner's counsel petitioned the Board for review of the

denial of attorney's fees and expenses for his work on the un-

successful Section 49 claim. The Board modified the ALJ's

3

order to award Petitioner attorney's fees for his counsel’s work

on the unsuccessful Section 49 claim, effectively ruling that the

ALJ did not have discretion to deny attorney's fees under the

circumstances of this case. (Petition, Appendix B, p. 16a)

General Dynamics petitioned the Court of Appeals to

review the Board’s modification of the ALJ's order with

respect to attorney’s fees. The First Circuit denied enforce-

ment of the Board’s decision and remanded the case with in-

structions to accept the findings of the ALJ. 848 F.2d at 323.

Reasons Why the Petition Should Be Denied

I. Tere Is No Conriicr AMONG THE CIRCUITS ON THE QUEs-

TION PRESENTED.

The First Circuit’s decision is not in conflict with the deci-

sion of any other federal court of appeals on the same matter.

As Petitioner concedes, the First Circuit is the first appellate

court to reach the question presénted. Petitioner's argument

that the petition should be granted due to “the lack of case law

at the appellate level” (Petition, p. 5) ignores the rationale

underlying Supreme Court Rule 17.1(a), which invokes this

Court’s supervisory powers to resolve conflicts among the

courts of appeals. Petitioner's suggestion that the First

Circuit's decision represents a departure from prior decisions

of the Benefits Review Board is incorrect; but even if it had

merit, such a conflict would not warrant the exercise of this

Court's discretion to grant certiorari.

Il. Tis Case Does Not INvVoLvE A Nove, QuEsTION oF Law

AND TURNS ON Its Own Facts.

The legal standard applied by the First Circuit is consistent

with this court’s decisions and the applicable legislation. Tne

standards for awarding attorney's fees to “prevailing parties”

under federal statutes were fully elaborated in Hensley v.

Eckerhart, 461 U.S. 424 (1983). The First Circuit’s application

of those standards to the statute involved in this case, which

4

requires “the successful prosecution of [a] claim” before

attorney's fees and expenses can be awarded, is wholly consis-

tent with the teaching in Hensley.

In Hensley, this Court addressed the appropriate result in

cases—like this case—where a plaintiff presents distinctly dif-

ferent claims for relief that are based on different facts and

legal theories. In that circumstance, the Court pointed out,

“work on an unsuccessful claim cannot be deemed to have

been ‘expended in pursuit of the ultimate result achieved.’ ~

Id. at 435. It was this principle that led the ALJ to deny

attorney's fees for work expended on the Section 49 retaliatory

discharge claim, and it was this principle that the First Circuit

applied in reviewing the Board's decision.

Contrary to Petitioner's argument, the First Circuit did not

rule that jointly filed claims of disability and retaliatory

discharge under the Act can never be treated as related. The

Court expressly rejected “any hard and fast rule,” and noted

that in some cases where the claims are adjudicated in a single

hearing, fees “might be awarded without regard to the dif-

ferential success of the claims.” 848 F.2d at 326. The Court

further observed, however, that where the ALJ can differen-

tiate work performed on separate claims, “partial success

should mean partial fees.” Id. at 326.

In the end, the application of these principles must be left to

the factfinder, a principle which the Board overlooked. See 33

U.S.C. §921(b)(3) (“The findings of fact in the decision under

review by the Board shall be conclusive if supported by

substantial evidence in the record considered as a whole.”) As

this Court emphasized in Hensley, the factfinder’s discretion

should be broad in view of his “superior understanding of the

litigation and the desirability of avoiding frequent appellate

review of what are essentially factual matters.” 461 U.S. at

437.

In the instant case, the First Circuit properly sustained the

ALJ's factual finding that the claims were separate and dis-

5

tinct, noting that the “record manifests the separateness of the

events and evidence at issue in the two claims.” 848 F.2d at 326.

Court noted that the ALJ had “methodically scrutinized” the

total hours expended by petitioner’s counsel, considered his

estimate of what percentage of his time had been spent on the

Section 49 claim, and identified and deducted particular

expenses relating to that claim. In short, this case turns on its

own facts and on the narrow scope of review of the ALJ's

findings.

Petitioner incorrectly asserts that the First Circuit’s decision

conflicts with principles of statutory interpretation and fails to

apply the plain and unambiguous language of the statute. Sec-

tion 28(a) of the Act {33 U.S.C. §928(a) ) provides that

reasonable attorney's fees shall be paid by an employer only

when “the person seeking benefits shall...have utilized the

services of an attorney at law in the successful prosecution of

this claim... .” (Emphasis supplied.)

The legislative history of the Act confirms the requirement

of a “successful prosecution” of a claim before attorney’s fees

can be awarded:

H.R. 12006 amends section 28 of the Act to authorize

assessment of legal fees against employers in cases where

the existence or extent of liability is controverted and the

claimant succeeds in establishing liability or obtaining

increased compensation in formal proceedings or ap-

peals. Attorney's fees may only be awarded against the

employer where the claimant succeeds, and the fees

awarded are to be based on the amount by which the

compensation payable is increased as a result of litiga-

tion. Attorney’s fees may not be assessed against

employers (or carriers) in other cases.

1972 U.S. Code Cong. & Admin. News 4698, 4706. (Emphasis

supplied.)

6

In this case, the First Circuit correctly ruled:

The ALJ honored Congress’ intention that fees should be

awarded “based on the amount by which the compensa-

tion payable is increased as a result of litigation.” The

Section 49 claim did not increase respondent’s compensa-

tion at all.

Other courts of appeals have affirmed the requirement of a

“successful prosecution” of a claim before an attorney’s fee can

be awarded. American Stevedores, Inc. v. Salzano, 538 F.2d

933 (2nd Cir. 1976); Atlantic and Gulf Stevedores v. Director,

Office of Workers’ Compensation Programs et al., 542 F.2d

602, 609-610 (3d Cir. 1976); Presley v. Tinsley Maintenance

Service, 529 F.2d 433, 437 (5th Cir. 1976); and Portland

Stevedoring Company v. Director, OWCP, 552 F.2d 293, 294

(9th Cir. 1977).

Finally, contrary to Petitioner’s argument, the question

presented in this case is not fundamental to “the constitutional

protection against the deprivation of life, liberty, or property

without due process of law.” (Petition, p. 6) There is no con-

stitutional guarantee of attorney’s fees for a claimant alleging

retaliatory discharge under Section 49, particularly when,

after a full and fair hearing, that claimant’s allegations have

been found to be “completely devoid of merit.”

Conclusion

For all of the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

DoNALD R. WARE

(Counsel of Record)

WILLIAM B. KoFFEL

Fo.ey, Hoac & ELiot

One Post Office Square

Boston, MA 02109

(617) 482-1390

Counsel for Respondent

General Dynamics Corporation