Under LHWCA, Excusable Neglect Standard Applies to Late Filed Attorney Fee Petition

The Ninth Circuit has ruled that the excusable neglect standard applies to late filed attorney fee petitions under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §901, et seq.

In Iopa v. Saltchuk-Young Brothers, No. 17-70415 (March 4, 2019), the court affirmed a decision of the Benefits Review Board, which in turn had affirmed Administrative Law Judge (ALJ) Richard M. Clark’s dismissal of counsel’s attorney fee petition for being untimely. Judge Clark had awarded benefits under the Act to Iopa in a Decision and Order dated July 31, 2014. He directed counsel to file his fee petition within 21 days of service.

Almost a year later, on June 8, 2015, counsel filed a fee petition, but it was for work performed before the Office of Workers’ Compensation Programs (OWCP). Counsel filed a corrected fee petition on October 27, 2015. Judge Clark struck the first petition because he had no authority to consider work performed before OWCP, and struck the second petition as untimely.

The Ninth Circuit affirmed the dismissal, finding that Judge Clark applied the correct legal standard. The Rules of Practice and Procedure for Administrative Proceedings Before the Office of Administrative Law Judges provide: “When an act may or must be done within a specified time, the judge may, for good cause, extend the time . . . [o]n motion made after the time has expired if the party failed to act because of excusable neglect.” 29 C.F.R. § 18.32(b)(2). The court applied the four-part test for excusable neglect articulated by the Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993):

  • The danger of prejudice to the debtor;
  • The length of the delay and its potential impact on judicial proceedings;
  • The reason for the delay, including whether it was within the reasonable control of the movant, and;
  • Whether the movant acted in good faith.

Judge Clark found that the delay in filing was prejudicial to the Employer and Carrier, that the length of the delay was exceedingly long, and that the reason for the delay—counsel’s busy workload, was not a valid consideration. Good faith of counsel was given no weight, as the other three factors outweighed. The Ninth Circuit found the weighing of the Pioneer factors was properly within the discretion of the ALJ and was not an abuse of his discretion.