Van Skike v. Director, Office of Workers' Comp.

• Decision Date: 02 March 2009
• Docket Number: No. 07-73886.,07-73886.
• Citation: 557 F.3d 1041
• Parties: David VAN SKIKE, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Cenex Harvest States Cooperative; Liberty Northwest Insurance Corp., Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

557 F.3d 1041

David VAN SKIKE, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Cenex Harvest States Cooperative; Liberty Northwest Insurance Corp., Respondents.

No. 07-73886.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 17, 2008.

Filed March 2, 2009.

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.

On Petition for Review of an Order of the Benefits Review Board. BRB Nos. 06-0904 07-0118.

Before: W. FLETCHER and RAYMOND C. FISHER, Circuit Judges, and JOHN M. ROLL,^* District Judge.

ROLL, Chief U.S. District Judge:

This is an appeal from the Benefits Review Board's ("BRB") affirmance of attorney's fee awards granted by the Administrative Law Judge ("ALJ") and the District Director ("DD") in a matter arising under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901-950. After prevailing on every contested issue on a claim for hearing loss benefits, David Van Skike's attorney, Charles Robinowitz, claimed compensation at a market rate of $350 per hour. The bulk of the litigation on the benefits claim had occurred before the ALJ, but the DD resolved several issues in the case as well. After reviewing the evidence submitted by both parties as to what hourly rate was appropriate, and after accounting for the applicable attorney-fee regulation, 20 C.F.R. § 702.132(a), the ALJ granted Robinowitz a rate of $250 per hour for his time expended litigating before the ALJ; based upon the complexity of the issues heard before her, the DD granted Robinowitz a rate of $235 per hour for his time expended litigating before the DD. The BRB affirmed both awards, finding that the ALJ and the DD properly applied § 702.132(a) in arriving at their respective hourly rates.

On appeal Van Skike argues that the fee awards were arbitrary, capricious, and an abuse of discretion, because both the ALJ and the DD rejected evidence proffered by Robinowitz as to his market rate and instead relied upon past LHWCA awards by other ALJs and DDs in arriving at their determinations. Van Skike further argues that the DD erred in reducing his market rate for lack of complexity. Finally, Van Skike argues that the DD erred by not awarding Robinowitz an enhanced fee for delay in payment. We have jurisdiction under 33 U.S.C. § 921(c), and we vacate and remand in part, and affirm in part.

FACTS AND PROCEDURAL HISTORY

Proceedings Before the ALJ

Robinowitz argued that a market rate of $350 per hour was appropriate given his general experience, his consultation with a lawyer who testifies as an attorney's fee expert, various fee awards he and other attorneys had been granted in the past, fee agreements he had obtained in non-contingent work, and the Laffey¹ matrix.² Respondent Cenex objected that the rate was incommensurate with the relevant prevailing market rate, and argued that recent LHWCA awards established that a figure somewhere between $200 and $235 was appropriate. Respondent Cenex also cited a number of contemporaneous LHWCA cases in which Robinowitz had been awarded between $200 and $250 per hour by ALJs and DDs.

In his Supplemental Decision and Order Granting Attorney's Fees, issued on July 14, 2006, ALJ William Dorsey considered and rejected each of Van Skike's proposed grounds for a $350 per hour rate.³ The ALJ discussed the pertinent law regarding fee litigation, including the lodestar calculation and the regulation pertaining to attorney's fees in longshore matters, 20 C.F.R. § 702.132(a). The ALJ concluded that it would be error to award Robinowitz a $350 per hour fee award, as he had failed to establish a "normal billing rate" under the regulation. The ALJ concluded that the "best proxy" for a normal billing rate was $250 per hour, based upon what other trial judges and the BRB had granted Robinowitz in recent LHWCA cases. It is not clear from the record whether these cases had been litigated in the Portland area or elsewhere.

Van Skike filed a timely Motion for Reconsideration, along with an affidavit and supporting memorandum of law, responding to the ALJ's findings. Robinowitz quantified his non-contingent billing, included the Morones Survey of 2004, which showed the average fees charged by commercial litigators in Portland, and included a copy of the previously cited Ninth Circuit's unpublished Christensen order, awarding him attorney's fees of $300 per hour. In an August 10, 2006 order, the ALJ denied the motion, once again concluding that in the absence of "meaningful proof of what hourly clients pay Mr. Robinowitz, or of what lawyers who are appropriate comparators charge, the awards judges have made to him in comparable cases" were appropriately consulted to "estimate the `normal billing rate' the regulation looks to."

Proceedings Before the DD

Robinowitz also applied to the DD, Office of Workers' Compensation Programs ("OWCP"), for an award which entailed a $350 rate. Respondent Cenex once again challenged the hourly rate as inconsistent with the relevant prevailing market rate. DD Karen Staats, after reviewing the responses and objections, concluded that given the considerations contemplated by § 702.132(a), "there is nothing in this fee request that justifies a rate of $350.00 for legal services provided in this claim at the DD level." The DD noted that $250 per hour was an appropriate rate for work performed before the ALJ, but granted Robinowitz only $235 per hour, based upon what she deemed to be a lack of complexity in the work Robinowitz performed before her.

Van Skike again filed a timely Motion for Reconsideration, reiterating many of the same arguments he made before the ALJ. The DD denied the motion on September 19, 2006, stating that the fee was approved in accord with the applicable statutory and regulatory criteria as well as the circumstances of the case.

Proceedings Before the BRB

Van Skike appealed both fee awards to the BRB. The BRB found that the ALJ "fully addressed the evidence of hourly rates provided by counsel to establish a customary, community market rate, and he provided a rational basis for finding such evidence insufficient to establish an hourly rate of $350." The BRB concluded that Robinowitz "failed to demonstrate either legal error or an abuse of discretion" in the ALJ's reliance on recent fee awards to him by other judges and the BRB in arriving at an hourly rate of $250.⁴ The BRB found that the DD "independently based her award of $235 per hour on the regulatory criteria of Section 702.132(a)," compelling the conclusion that there was no abuse of discretion. Finally, the BRB found that the DD did not err in failing to address a possible rate enhancement for delay in payment, as "counsel did not seek an hourly rate enhanced for delay."

STANDARD OF REVIEW

The decision of the BRB is reviewed for substantial evidence and errors of law. Marine Power & Equipment v. Dept. of Labor, 203 F.3d 664, 667 (9th Cir.2000). The ALJ's findings of fact must be accepted by the BRB unless they are contrary to law, irrational, or unsupported by substantial evidence. Id.; see also Parks v. Newport News Shipbuilding & Dry Dock Co., 32 BRBS 90 (1998). An appellate court must conduct an independent review of the administrative record to determine whether the BRB adhered to this standard of review. Marine Power, 203 F.3d at 667. A decision by the BRB is supported by substantial evidence if there exists "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." E.P. Paup Co. v. Dir., OWCP, 999 F.2d 1341, 1353 (9th Cir. 1993) (internal quotation marks omitted). No special deference is accorded to the BRB's interpretation of the LHWCA, but reasonable interpretations are respected. Port of Portland v. Dir., OWCP, 932 F.2d 836, 838 (9th Cir.1991).

DISCUSSION

Exclusive Reliance on Contemporaneous LHWCA Cases to Set a Market Rate

Van Skike argues on appeal that the ALJ abused his discretion and committed legal error when he rejected in their entirety the market indicators submitted by Robinowitz and instead relied on other decisions in previous cases, when the judges in those previous cases failed to base their fee awards on market rates. Respondent Cenex contends that the ruling of the ALJ was predicated upon the applicable regulation, § 702.132(a), and that because Van Skike failed to establish a "normal billing rate," the ALJ properly relied on hourly rate decisions in other LHWCA cases.

The Supreme Court has consistently held that reasonable fees "are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel." Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The burden is on the fee applicant himself "to produce satisfactory evidence" of the relevant market rate. Id. at 896 n. 11, 104 S.Ct. 1541. Case law construing reasonable fees "applies uniformly" to fee-shifting statutes such as the LHWCA, City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), and, as with other federal fee-shifting statutes, the use of the lodestar method (number of hours reasonably expended multiplied by reasonable hourly rate) in calculating attorney's fees under the LHWCA is proper. See Tahara v. Matson Terminals, Inc., 511 F.3d 950, 955 (9th Cir.2007).

The relevant community is generally defined as "the forum in which the district court sits." Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir.1997). In Christensen v. Stevedoring Services, No. 07-70297, 2009 WL 499540, 557 F.3d 1049 (9th Cir. 2009), filed today, we note the problems inherent in narrowly defining the relevant community in LHWCA cases strictly in terms of what other ALJs, DDs, and the BRB have...