Christensen v. Stevedoring Services of America
| Decision Date | 02 March 2009 |
| Docket Number | No. 07-70297.,No. 07-70247.,07-70247.,07-70297. |
| Citation | 557 F.3d 1049 |
| Parties | Bruce W. CHRISTENSEN, Petitioner, v. STEVEDORING SERVICES OF AMERICA; Homeport Insurance Company; and Director, Office of Workers' Compensation Programs, Respondents. Arel Price, Petitioner, v. Stevedoring Services of America; Homeport Insurance Company; Eagle Pacific Insurance Company; and Director, Office of Workers' Compensation Programs, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles Robinowitz, Portland, OR; Joshua T. Gillelan II (argued), Longshore Claimants' National Law Center, Washington, D.C., for the petitioners-appellants.
John Dudrey, Williams Fredrickson, LLC, Portland, OR, for the respondents-appellees.
Appeal from Decisions and Orders of the Benefits Review Board. Agency Nos. BRB 03-0302, 03-0761, 01-0632 and 01-0632A.
Before: W. FLETCHER and RAYMOND C. FISHER, Circuit Judges, and JOHN M. ROLL, Chief District Judge.*
This is a consolidated appeal from awards of attorney's fees by the Benefits Review Board of the United States Department of Labor ("BRB"). Petitioners Christensen and Price appeal the amount of attorney's fees awarded to them by the BRB under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901-950. We have jurisdiction under 33 U.S.C. § 921(c), and we vacate and remand.
On February 12, 2004, with an appeal still pending, Petitioner Bruce W. Christensen's attorney, Charles Robinowitz, filed an affidavit of attorney's fees—for work done on the fee appeal to the BRB only—requesting an hourly rate of $250 per hour for his services. The BRB awarded Robinowitz his requested hourly rate.
Thereafter, on April 13, 2006, Robinowitz filed an "Amended Affidavit of Attorney Fees," requesting an increased rate of $350 per hour. On July 25, 2006, the BRB issued an order, stating that "an hourly rate of $250 remains appropriate in this geographic region and adequately compensates counsel for the delay in payment of the previously awarded attorney's fee."
Robinowitz then filed a Motion for Reconsideration, to which he attached a copy of the Morones Survey of 2004 showing the average hourly rates at that time for commercial litigation attorneys in Portland, Oregon; a copy of the Laffey Matrix,1 which supported an hourly rate in the range of $405 to $425 per hour; and copies of federal personnel pay rates for Washington, D.C., and Portland, Oregon, to aid the BRB in interpreting the Laffey Matrix.
On November 17, 2006, the BRB issued an order denying Robinowitz's Motion for Reconsideration, rejecting counsel's assertions and finding that the fee awarded was in compliance with 20 C.F.R. § 802.203(d)(4).
On May 30, 2002, Robinowitz, representing Petitioner Arel Price, filed an affidavit of attorney's fees with the BRB, requesting fees of $237.50 per hour. The BRB refrained from granting his fee petition because the case was, at that time, pending on appeal, but stated that Robinowitz could re-file a petition for fees if his appeal before the Ninth Circuit was successful.
On June 5, 2006, following a favorable result from the Ninth Circuit, Robinowitz filed a "Third Supplemental Affidavit of Attorney Fees" with the BRB. Therein, Robinowitz requested an increased rate of $350 per hour, citing much of the same support contained in his Christensen affidavits, including the Laffey matrix. The BRB's July 26, 2006 order on the requested fees stated that a rate of $250 was appropriate in the geographic region and adequately compensated counsel for the delay in payment of the attorney's fee. Robinowitz's motion for reconsideration was denied by the BRB on November 30, 2006.
This court reviews the BRB's decisions for abuse of discretion. Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945 (9th Cir.2007). The BRB "is not a policymaking agency," so "its interpretation of the LHWCA is not entitled to any special deference." McDonald v. Dir., OWCP, 897 F.2d 1510, 1512 (9th Cir.1990). Nevertheless, "the court must ... respect the Board's interpretation of the statute where such interpretation is reasonable and reflects the policy underlying the statute." Id.2
This case involves application of § 928(a) of the LHWCA, which provides for a "reasonable attorney's fee," and 20 C.F.R. § 802.203, which implements § 928(a) in regard to services performed before the Benefits Review Board.3 The definition of a "reasonable attorney's fee" pursuant to § 928(a) has evolved toward the definition of "reasonable" used in all federal fee-shifting statutes. See City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); Anderson v. Dir., OWCP, 91 F.3d 1322, 1324 (9th Cir.1996); Nelson v. Stevedoring Servs. of America, 29 B.R.B.S. 90, 97 (1995).
The "lodestar method" is the fundamental starting point in determining a "reasonable attorney's fee," see Dague, 505 U.S. at 562, 112 S.Ct. 2638 (), and this is true as to computation of attorney's fees under § 928(a) of the LHWCA.4 See Tahara v. Matson Terminals, Inc., 511 F.3d 950, 955 (9th Cir.2007). Various other factors have been held relevant to the setting of appropriate attorney's fees, including: (1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) time limitations imposed by the client or the circumstances; (7) the amount involved and the results obtained; (8) the experience, reputation and ability of the attorneys; (9) the "undesirability" of the case; (10) the nature and length of the professional relationship with the client; and (11) awards in similar cases. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 n. 2 (9th Cir.2000).
In Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), the Supreme Court held that "reasonable fees" in 42 U.S.C. § 1988 claims "are to be calculated according to the prevailing market rates in the relevant community." Id. at 895, 104 S.Ct. 1541. The Court further held that "the burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney's own affidavits— that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." 465 U.S. at 896 n. 11, 104 S.Ct. 1541; see also Bell v. Clackamas County, 341 F.3d 858, 868 (9th Cir.2003) .
Recently, in Camacho v. Bridgeport Financial, Inc., 523 F.3d 973 (9th Cir.2008), this Court vacated and remanded an award of attorney's fees in a Fair Debt Collection Practices Act ("FDCPA") action, because, among other reasons, the district court failed to make findings regarding what constituted the "relevant community" or the appropriate market rate. Id. at 979-80.
The relevant community is generally defined as "the forum in which the district court sits." Id. at 979 (citing Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir.1997)). In Newport News Shipbuilding & Dry Dock Co. v. Brown, 376 F.3d 245 (4th Cir.2004), the Fourth Circuit defined "relevant community," specifically for purposes of LHWCA cases, by looking solely to what other administrative law judges and the BRB awarded in other LHWCA cases in the same geographic region. See id. at 251. Such a limited definition of "relevant community" is problematic, however, in light of the fact that there is no private market for attorney's fees under the LHWCA. Indeed, LHWCA attorneys face criminal penalties for negotiating or entering into private fee agreements with their clients. See 33 U.S.C. § 928(e). We stated in Camacho that "`[i]n order to encourage able counsel to undertake FDCPA cases, as Congress intended, it is necessary that counsel be awarded fees commensurate with those which they could obtain by taking other types of cases.'" Camacho, 523 F.3d at 981 (quoting Tolentino v. Friedman, 46 F.3d 645, 652 (7th Cir.1995)). We believe the concern expressed in Camacho with respect to fees under the FDCPA is equally applicable to fees under the LHWCA.
Petitioners also argue that the BRB should not be allowed to define "prevailing market rate" in such a way as to define the "market" only in terms of what has been awarded by ALJs and the BRB under the LHWCA. This is a legitimate point. In Student Pub. Interest Research Group of N.J. v. AT & T Bell Laboratories, 842 F.2d 1436, 1446 (3d Cir.1988), in the context of public interest work fees, the Third Circuit appropriately articulated the flaw inherent in the attempt to define a "market" by simply looking to what other judges award:
Courts that try to establish public interest market rates by looking to the going rate for public interest work therefore do not examine an independently operating market governed by supply and demand, but rather recast fee awards made by previous courts into "market" rates. Courts adopting this micro-market approach, therefore, engage in a tautological, self-referential enterprise. They perpetuate a court-established rate as a "market" when that rate in fact bears no necessary relationship to the underlying purpose of relying on the marketplace: to calculate a reasonable fee sufficient to attract competent counsel.
Dague unambiguously states that the Supreme Court's caselaw concerning what constitutes a reasonable fee applies to all federal fee-shifting statutes, including the LHWCA. Blum requires the BRB to consider the relevant market rate when it awards attorney's fees.5
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