Richard Shirrod v. Owcp , 809 F.3d 1082 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD SHIRROD, No. 13-70613
Petitioner,
BRB No.
v. 12-0085
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS; PACIFIC OPINION
RIM ENVIRONMENTAL RESOURCES,
LLC, Self-Insured Employer,
Respondents.
On Petition for Review of a Decision and Order
of the Benefits Review Board
Argued and Submitted
October 16, 2015—Portland, Oregon
Filed December 31, 2015
Before: A. Wallace Tashima and Carlos T. Bea, Circuit
Judges, and Larry A. Burns,* District Judge.
Opinion by Judge Bea
*
The Honorable Larry A. Burns, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
2 SHIRROD V. OWCP
SUMMARY**
Longshore Act / Attorney’s Fees
The panel granted a petition for review and vacated the
Benefit Review Board’s decision affirming an administrative
law judge’s award of attorney’s fees under the Longshore and
Harbor Workers’ Compensation Act, and remanded for
further proceedings.
During workers’-compensation proceedings, an ALJ
awarded petitioner attorney’s fees for work performed before
the ALJ, as authorized under a fee-shifting provision of the
Longshore Act, 33 U.S.C. § 928(a).
The panel held that the Benefits Review Board erred in
affirming the ALJ’s award of attorney’s fees for work
performed by petitioner’s attorney because the proxy market
rate on which the award depended did not adequately
represent market rates in the “relevant community,” here,
Portland, Oregon.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SHIRROD V. OWCP 3
COUNSEL
Charles Robinowitz (argued), Portland, Oregon, for
Petitioner.
John R. Dudrey (argued), Williams Fredrickson, LLC,
Portland, Oregon, for Respondent Pacific Rim Environmental
Resources, LLC.
Kathleen Kim and Mark A. Reinhalter, Office of the
Solicitor, United States Department of Labor, Washington,
D.C., for Respondent Director, Office of Workers’
Compensation Programs.
OPINION
BEA, Circuit Judge:
Richard Shirrod was awarded benefits under the
Longshore and Harbor Workers’ Compensation Act
(“Longshore Act”) for injuries he sustained while working on
a barge-refitting project for Respondent Pacific Rim
Environmental Resources, LLC (“Pacific Rim”).1 During the
workers’-compensation proceedings, an administrative law
judge (“ALJ”) awarded Shirrod $33,581.17 in attorney’s fees
for work Shirrod’s attorney, Charles Robinowitz, performed
before the ALJ, as is authorized under a fee-shifting provision
of the Longshore Act. See 33 U.S.C. § 928(a). The Benefits
Review Board (“BRB”) affirmed the ALJ’s fee award. The
1
We affirmed the amount of Shirrod’s benefits under the Longshore Act
in a separate appeal. See Shirrod v. Pac. Rim Envt’l Res., LLC, No. 14-
73291, __ F. App’x __, 2015 WL 6468110 (9th Cir. Oct. 27, 2015).
4 SHIRROD V. OWCP
fee award is based on an hourly rate for Robinowitz’s
services of $340 per hour. Shirrod contends the formula on
which this $340-per-hour rate is based is flawed. We agree.
We grant Shirrod’s petition for review, vacate the BRB’s
decision and order, and remand this case for further
proceedings.
I
Shirrod sustained permanent injuries to his knee and ankle
during the course of his employment with Pacific Rim.
Shirrod was working in Oregon on a project to refit two rail
cars and a barge to carry solid waste from ocean-going barges
to waste dumps. Shirrod filed a claim for workers’-
compensation benefits under the Longshore Act, and it is
undisputed that he is entitled to such benefits. Shirrod’s case
was overseen by ALJ Steven Berlin.
The Longshore Act permits a claimant to recover
attorney’s fees in some circumstances and, in this case,
Shirrod requested attorney’s fees for work Robinowitz
performed before Judge Berlin, mostly during 2010. The fee
request totaled $38,786.17, including 86.75 hours for
Robinowitz’s services at $400 per hour, 8.25 hours of legal-
assistant services at $150 per hour, and $2,848.67 in costs.
Shirrod submitted several affidavits and legal-industry fee
surveys to support the proposed $400-per-hour rate for
Robinowitz’s services, including the Oregon State Bar’s 2007
Economic Survey (“Bar Survey”), which provides billing
rates for legal services in several Oregon markets.
Robinowitz has been a lawyer in private practice in Portland,
Oregon, since 1969.
SHIRROD V. OWCP 5
Judge Berlin approved an attorney’s-fee award of
$33,581.17; he reduced the rate for Robinowitz’s services to
$340 per hour but approved Shirrod’s fee request in all other
respects. In determining the proper rate for Robinowitz’s
services, Judge Berlin primarily relied on the analysis
developed by ALJs in two earlier Longshore Act cases in
which Robinowitz served as counsel: DiBartolomeo v. Fred
Wahl Marine Constr., ALJ No. 2008-LHC-01249 (Dep’t of
Labor Oct. 26, 2009) (ALJ Gerald Etchingham), and Castillo
v. Sundial Marine Tug & Barge Works, Inc., ALJ No. 2010-
LHC-00341 (Dep’t of Labor Apr. 22, 2011) (ALJ Jennifer
Gee).2
The claimants in this case, DiBartolomeo, and Castillo
submitted similar affidavits and legal-industry fee surveys to
support the hourly rate requested for Robinowitz’s services.
In each case, the presiding ALJ rejected that evidence as not
probative of the market rates for Longshore Act litigation and
instead found it necessary to develop a proxy market rate.
Both Judge Gee in Castillo and Judge Berlin in this case
relied on the $316.42-per-hour rate Judge Etchingham
calculated in DiBartolomeo as a proxy market rate.
In DiBartolomeo, Judge Etchingham “estimat[ed] the
value of Mr. Robinowitz’s services in the Portland market”
using data from the 2007 Survey of Law Firm Economics by
Altman Weil Publications (“Altman Weil Survey”). He
2
DiBartolomeo was affirmed by the BRB, DiBartolomeo v. Fred Wahl
Marine Constr., No. 10-0257, 2010 WL 3514186, at *6 (Ben. Rev. Bd.
Aug. 30, 2010), and Castillo was vacated by the BRB on grounds not
relevant to this appeal, Castillo v. Sundial Marine Tug & Barge Works,
Inc., No. 11-0400, 2012 WL 894005, at *3–*4 (Ben. Rev. Bd. Feb. 23,
2012).
6 SHIRROD V. OWCP
determined that Robinowitz’s credentials and performance
merited a rate in the 75th percentile. As a result, Judge
Etchingham averaged the 75th-percentile hourly billing rates
for lawyers practicing in areas he found relevant to
Longshore Act litigation—employment law ($365), maritime
law ($320), personal-injury law ($335), and workers’-
compensation law ($200)—and Oregon lawyers with over 30
years of experience ($325). He thus calculated a proxy market
rate of $309 per hour for Robinowitz’s services, which he
increased to $316.42 to account for inflation.
Judge Etchingham disavowed any reliance on the Bar
Survey, even though the Bar Survey includes more detail
about billing rates in various Oregon markets, including
Portland. Judge Etchingham determined that the Altman Weil
Survey was a better source of data because it is published
every year and provides billing rates for lawyers practicing
employment law and maritime law, whereas the Bar Survey
is published every four to five years and does not include
separate rates for those practice areas.
Judge Berlin agreed with Judge Etchingham’s approach
in DiBartolomeo and adopted the $316.42-per-hour proxy
market rate Judge Etchingham calculated for Robinowitz’s
services. Judge Berlin then increased this rate to $320 to
account for inflation and to $340 to acknowledge
Robinowitz’s recent accomplishments. He thus approved a
fee award totaling $33,581.17. The BRB affirmed this fee
award.
II
We have jurisdiction to review final orders of the BRB.
33 U.S.C. § 921(c). The BRB’s decisions are subject to the
SHIRROD V. OWCP 7
provisions of the Administrative Procedure Act. See Haw.
Stevedores, Inc. v. Ogawa, 608 F.3d 642, 648 (9th Cir. 2010).
Thus, we must set aside decisions of the BRB that are
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). The BRB
must accept an ALJ’s factual findings unless they are
contrary to law, irrational, or not supported by substantial
evidence. Van Skike v. Dir., OWCP, 557 F.3d 1041, 1045–46
(9th Cir. 2009). We independently evaluate the evidence in
the administrative record to ensure the BRB adhered to the
correct standard of review. See id.; Bumble Bee Seafoods v.
Dir., OWCP, 629 F.2d 1327, 1329 (9th Cir. 1980).
III
If an employer or insurance carrier denies liability for a
Longshore Act claim, it must pay a “reasonable attorney’s
fee” to the claimant if the claimant successfully prosecutes
his claim with the aid of an attorney. 33 U.S.C. § 928(a). A
successful claimant may collect attorney’s fees for work his
attorney performed before ALJs, the BRB, and District
Directors in the Office of Workers’ Compensation Programs.
Id.; 20 C.F.R. §§ 702.132, 802.203.
The term “reasonable attorney’s fee” has evolved toward
a uniform definition in all federal fee-shifting statutes,
including the Longshore Act. See Christensen v. Stevedoring
Servs. of Am., 557 F.3d 1049, 1052 (9th Cir. 2009). The
lodestar method, which requires multiplying a reasonable
hourly rate by the number of hours reasonably expended on
the case, is the starting point for the calculation of attorney’s
fees. Id. at 1053 & n.4. The goal of the lodestar method is to
“produce[] an award that roughly approximates the fee that
the prevailing attorney would have received if he or she had
8 SHIRROD V. OWCP
been representing a paying client who was billed by the hour
in a comparable case.” Perdue v. Kenny A. ex rel. Winn,
559 U.S. 542, 550–51 (2010) (emphasis omitted). As such, an
attorney’s hourly rate is to be calculated “according to the
prevailing market rates in the relevant community” and
should be “in line with [the rates] prevailing in the
community for similar services by lawyers of reasonably
comparable skill, experience and reputation.” Christensen,
557 F.3d at 1053 (quoting Blum v. Stenson, 465 U.S. 886,
895–96 (1984)).
Determining the prevailing market rate for claimants’
attorneys in Longshore Act cases has proven difficult, as the
Longshore Act prohibits claimants from negotiating fees with
their attorneys. See 33 U.S.C. § 928(e); Christensen, 557 F.3d
at 1053; 20 C.F.R. §§ 702.132(a), 802.203(f). We have held
that fees in Longshore Act cases should be “commensurate
with those which [claimants’ attorneys] could obtain by
taking other types of cases.” Christensen, 557 F.3d at 1053(quoting Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 981
(9th Cir. 2008)). Prior to our decisions in Christensen and
Van Skike, Longshore Act fee awards were typically based on
fee awards from earlier Longshore Act cases. Id. at 1054;
accord Van Skike, 557 F.3d at 1046–47. In Christensen, we
found that self-referential approach improper, because it did
not look to rates in an independently operating market and,
hence, did not produce “market” rates, as is required by the
Supreme Court’s decision in Blum v. Stenson. See 557 F.3d
at 1054–55. As such, we held that, in Longshore Act cases,
the “relevant community” must be defined “more broadly
than simply fee awards under the [Longshore Act].” Id.;
accord Van Skike, 557 F.3d at 1046–47. Recognizing that the
relevant decisionmaker has wide—but not unlimited—
discretion when making attorney’s-fee awards, see Kenny A.,
SHIRROD V. OWCP 9
559 U.S. at 558, we ultimately left it to the BRB, ALJs, and
District Directors to determine the “relevant community” and
the prevailing market rates in that community, as long as the
decisionmaker provides adequate justification. Christensen,
557 F.3d at 1055.
A. The “relevant community”
Our review of the fee award must begin by investigating
just what was the “relevant community” that Judge Berlin
used when he awarded fees for Robinowitz’s services. Judge
Berlin left the “relevant community” undefined but used
language suggesting that the “relevant community” was either
the state of Oregon or the city of Portland.3 The BRB, in its
review of the fee award, also made no express mention of the
“relevant community.” However, which is the “relevant
community” need not necessarily be decided anew in each
decision awarding fees. See Christensen, 557 F.3d at 1055.
We take the “relevant community” here to be Portland,
Oregon, the “relevant community” determined by the ALJs
in the two prior cases on which Judge Berlin relied. See
DiBartolomeo, ALJ No. 2008-LHC-01249, slip op. at 7
(“[T]his Court is left with the task of estimating the value of
Mr. Robinowitz’s services in the Portland market.”); Castillo,
ALJ No. 2010-LHC-00341, slip op. at 3 (“I find that the
3
For instance, Judge Berlin stated that “the present record contains no
evidence that attorneys in Oregon are increasing billing rates” and
compared Robinowitz to “Oregon trial lawyers,” but also applied a
Portland-specific inflation adjustment to the proxy market rate he adopted.
10 SHIRROD V. OWCP
‘relevant community’ for Mr. Rabinowitz [sic] is the city of
Portland.”).4
We also agree with Shirrod that Portland is the right
“relevant community” in this case. In civil litigation, we
typically recognize the forum where the district court sits as
the “relevant community” for purposes of fee-shifting
statutes. Christensen, 557 F.3d at 1053; Barjon v. Dalton,
132 F.3d 496, 500 (9th Cir. 1997). By analogy, a
determination of the “relevant community” in Longshore Act
cases should focus on the location where the litigation took
place. But, because district courts are not involved in cases
under the Longshore Act, we must look to other indicia to
determine where the litigation took place and, thus, which is
the “relevant community.” Here, all factors point to Portland
as the location of the litigation: Counsel to Shirrod and
Pacific Rim maintain their offices in Portland; hearings
before Judge Berlin occurred in Portland. Cf. Newport News
Shipbuilding & Dry Dock Co. v. Holiday, 591 F.3d 219, 229
4
Echoing the BRB’s decision affirming the ALJ’s fee award in
DiBartolomeo, Pacific Rim contends that Judge Berlin had the discretion
to treat the state of Oregon or the city of Portland as the “relevant
community.” See DiBartolomeo, 2010 WL 3514186, at *4 (“[T]he
appropriate community in this case could reasonably be found to be the
state of Oregon, the greater Portland metropolitan area, or the city of
Portland.”). Even if this is so, we review only what Judge Berlin and the
BRB did, not what they could have done. See SEC v. Chenery Corp.,
318 U.S. 80, 93–94 (1943). Because Judge Berlin adopted the analyses in
DiBartolomeo and Castillo, we assume he also adopted the “relevant
community” from those cases. If Judge Berlin sought to deviate from
those decisions on that point, he should have done so expressly and
provided justification sufficient to enable meaningful review by the BRB
and by us. See Christensen, 557 F.3d at 1055; Finnegan v. Dir., OWCP,
69 F.3d 1039, 1041 (9th Cir. 1995); cf. FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 514–15 (2009).
SHIRROD V. OWCP 11
(4th Cir. 2009) (noting that the “relevant community” should
“turn[] on inquiries about the lawyer and client”); 20 C.F.R.
§ 802.203(d)(4) (“The rate awarded by the [BRB] shall be
based on what is reasonable and customary in the area where
the services were rendered for a person of that particular
professional status.”).5
B. Applicability of the proxy market rate to the Portland
market
We next examine whether the proxy market rate
developed by Judge Etchingham in DiBartolomeo and relied
upon by Judge Berlin in this case adequately reflects market
rates for Portland, Oregon, the “relevant community.” We
conclude that it does not because it is based entirely on data
not tailored to Portland, even though reliable information
about attorney billing rates in Portland was readily available.
The proxy market rate adopted by Judge Berlin is based
on five constituent rates from the Altman Weil Survey: the
75th-percentile rates for lawyers practicing employment,
maritime, personal-injury, and workers’-compensation law,
and the 75th-percentile rate for Oregon lawyers with over 30
years of experience. See DiBartolomeo, ALJ No. 2008-LHC-
01249, slip op. at 7–8. The constituent rates do not relate
specifically to Portland, Oregon, the “relevant community”;
5
We acknowledge that the “relevant community” may depend on the
facts of specific cases, and we decline to construct a bright-line rule.
Instead, we leave it to the BRB, ALJs, and District Directors to determine
the “relevant community” in individual cases, as long as the decision is
adequately justified and supported by substantial evidence. See
Christensen, 557 F.3d at 1055. To facilitate meaningful review, we urge
these decisionmakers to make their findings regarding the “relevant
community” explicit. Cf. Camacho, 523 F.3d at 979.
12 SHIRROD V. OWCP
one of the rates is expressly geographically limited—but
encompasses the entire state of Oregon—and, although it is
not entirely clear from the record, the practice-area rates
appear to be national in scope. See id. We hold that it was
error for Judge Berlin to apply a rate bearing no direct nexus
to the “relevant community.” See Camacho, 523 F.3d at 979(vacating an attorney’s-fee award because the market rate was
based “almost exclusively” on data for judicial districts other
than the Northern District of California, the “relevant
community”).
To be sure, if the “relevant community” were defined
differently,6 or if reliable data on attorney’s fees in the
“relevant community” did not exist, using the proxy market
rate—or the constituent rates on which it depends—could be
permissible. Cf. id. (suggesting the market rate may be based
on rates for communities “comparable to” the “relevant
community”). Here, however, the Bar Survey does provide
attorney’s-fee information specific to the “relevant
6
The Seventh Circuit has suggested that the “relevant community”
could be national in scope. See Jeffboat, LLC v. Dir., OWCP, 553 F.3d
487, 490 (7th Cir. 2009) (“Jeffboat takes the word ‘community’ to mean
‘local market area.’ It would be just as consistent, however, to read the
word as referring to a community of practitioners; particularly when, as
is arguably the case here, the subject matter of the litigation is one where
the attorneys practicing it are highly specialized and the market for legal
services in that area is a national market.”). As stated previously, we leave
it to the BRB, ALJs, and District Directors to determine the “relevant
community” in the first instance but note that we have not adopted this
position and Jeffboat has not been widely followed with respect to this
point.
SHIRROD V. OWCP 13
community” of Portland, Oregon.7 Although Judge
Etchingham in DiBartolomeo gave two reasons for favoring
the Altman Weil Survey over the Bar Survey—which Judge
Berlin implicitly adopted in this case—we find those reasons
unconvincing.
First, Judge Etchingham stated that the Altman Weil
Survey is a better source of information because it is
published every year, whereas the Bar Survey is published
only every four to five years. DiBartolomeo, ALJ No. 2008-
LHC-01249, slip op. at 7 n.2. But if Judge Etchingham—and
other ALJs relying on his analysis and methodology—
preferred the Altman Weil Survey because it is published
annually, we would expect them to calculate proxy market
rates for each year using the data published for that year.
However, to determine proxy market rates for years after
2007, Judge Etchingham in DiBartolomeo, Judge Gee in
Castillo, and Judge Berlin in this case merely adjusted the
proxy market rate calculated from the 2007 Altman Weil
Survey using inflation data. See id. at 8; Castillo, ALJ No.
2010-LHC-00341, slip op. at 11–12 & n.10. We see no reason
why the ALJs could not have made the same inflation
adjustments to the figures in the Bar Survey.
Second, Judge Etchingham stated that he relied on the
Altman Weil Survey because it includes billing rates for
attorneys practicing employment law and maritime law,
7
We have no reason to doubt the reliability of the data in the Bar
Survey, as it supplies the benchmark for attorney’s-fee awards in the
District of Oregon, see D. Or. Civ. R. 54-3(a), and the BRB and ALJs
have relied on it in the past, see, e.g., Christensen v. Stevedoring Servs. of
Am., 43 Ben. Rev. Bd. Serv. (MB) 145, 146 (2009); see also Castillo,
2012 WL 894005, at *3–*4.
14 SHIRROD V. OWCP
which the Bar Survey lacks. DiBartolomeo, ALJ No. 2008-
LHC-01249, slip op. at 7 n.2. Judge Etchingham did not
explain why he disregarded the data for the practice areas—
personal-injury law and workers’-compensation law—that the
surveys have in common and for which the Bar Survey
contains data specific to the Portland market. Relatedly,
Judge Etchingham did not explain why the Altman Weil
Survey’s billing rate for Oregon attorneys with over 30 years
of experience was superior to the Bar Survey’s billing rate for
Portland attorneys with the same amount of experience. See
id. Nor did Judge Etchingham attempt to harmonize the data
in the two surveys in any other way. Cf., e.g., Ramsey v.
Cascade Gen., Inc., No. 11-0875, 2012 WL 3903607, at
*2–*4 (Ben. Rev. Bd. Aug. 29, 2012) (affirming an
attorney’s-fee award that was “based on averages of the rates
in the Altman Weil Survey, the Oregon Bar Survey and the
average hourly rate for all Portland attorneys with 21–30
years of experience, regardless of practice area”).
Because the lodestar method requires a “reasonable
attorney’s fee” to be based on market rates in the “relevant
community,” we hold that the BRB erred in affirming an
attorney’s-fee award based on a proxy market rate not
tailored to the “relevant community,” which, in this case,
Judge Berlin found to be Portland.
C. Use of billing rates for workers’-compensation practice
The proxy market rate applied by Judge Berlin depends in
part on the 75th-percentile rate, from the Altman Weil
Survey, for attorneys practicing workers’-compensation law.
See DiBartolomeo, ALJ No. 2008-LHC-01249, slip op. at
7–8. Shirrod contends that it was error to include that rate,
SHIRROD V. OWCP 15
because it is artificially low and does not represent a market
rate. We agree.
The proxy market rate includes, among its constituent
rates, a $200-per-hour rate reported by attorneys practicing
workers’-compensation law, which is significantly lower than
the other rates on which the proxy market rate depends.8 See
id. Judge Etchingham included that rate as part of the proxy
market rate he calculated in DiBartolomeo because he found
that workers’-compensation law “employ[s] legal skills
similar to those required by Longshore practice,” id. at 7, and
the BRB affirmed, see DiBartolomeo v. Fred Wahl Marine
Constr., No. 10-0257, 2010 WL 3514186, at *5 (Ben. Rev.
Bd. Aug. 30, 2010). Judge Berlin in this case agreed with
Judge Etchingham that “Oregon state workers’ compensation
fees are analogous and relevant to a determination of the
billing rate applicable to trial-level work” in Longshore Act
cases, and the BRB affirmed this decision, giving scant
discussion to the use of rates reported by workers’-
compensation lawyers.
Yet, the BRB previously recognized that billing rates
reported by workers’-compensation lawyers do not
necessarily represent market rates that are usable in a lodestar
calculation. In Christensen, we vacated the BRB’s decision
awarding fees for work Robinowitz performed before it
because the fee award was not based on market rates. See
557 F.3d at 1052–55. On remand from us, the BRB initially
calculated a proxy market rate “by reference to an average of
the rates for workers’ compensation, plaintiff personal injury
8
By our calculation, the proxy market rate would have been higher by
nearly $30 per hour if the rate for workers’-compensation lawyers had
been excluded.
16 SHIRROD V. OWCP
civil litigation, and plaintiff general civil litigation cases.”
Christensen v. Stevedoring Servs. of Am., 43 Ben. Rev. Bd.
Serv. (MB) 145, 146–47 (2009). However, the BRB
reconsidered this decision, excluded the workers’-
compensation rate, and recalculated the fee award based only
on the average of the other two rates. Christensen v.
Stevedoring Servs. of Am., 44 Ben. Rev. Bd. Serv. (MB) 39,
40 (2010). It did so because it found the reported workers’-
compensation rate to be artificially low and thus not reflective
of market rates: Fees paid to claimants’ attorneys are
typically capped by state law and often paid out of the
compensation award, whereas insurers and employers are
able to negotiate discounts with attorneys who defend against
workers’-compensation claims because they supply a steady
stream of work. Id. In response to the employer’s request for
reconsideration of this decision, the BRB added that “[f]ees
awarded by state administrative law judges are not
necessarily based on market considerations, just as rates set
by administrative law judges in longshore cases have been
held to be non-market-based rates.” See Christensen v.
Stevedoring Servs. of Am., 44 Ben. Rev. Bd. Serv. (MB) 75,
75 (2010) (citing Christensen, 557 F.3d 1049; Van Skike,
557 F.3d 1041), aff’d sub nom. Stevedoring Servs. of Am. v.
Dir., OWCP, 445 F. App’x 912 (9th Cir. 2011).
Although Judge Berlin did not mention the BRB’s
decision on reconsideration in Christensen by name, he gave
two reasons why it would not apply to this case. First, Judge
Berlin noted that BRB decisions regarding attorney’s fees for
appellate work performed before the BRB—such as
Christensen—are “less instructive” than BRB decisions
reviewing attorney’s-fee orders for trial-level work performed
before ALJs—such as the BRB’s decision affirming Judge
Etchingham’s attorney’s-fee award in DiBartolomeo. We see
SHIRROD V. OWCP 17
nothing in the BRB’s Christensen decision that would detract
from its applicability to attorney’s-fee orders for trial-level
work. We do not dispute that the skills involved in resolving
state workers’-compensation claims are similar to those
involved in litigating Longshore Act cases and may be more
relevant to trial-level work than appellate work. See, e.g.,
DiBartolomeo, 2010 WL 3514186, at *5. But, in Christensen,
the BRB excluded rates reported by workers’-compensation
lawyers not because workers’-compensation practice was
irrelevant, but because structural factors caused workers’-
compensation lawyers to report unusually low—and non-
market—hourly rates. See 44 Ben. Rev. Bd. Serv. (MB) at 40.
If reported rates for workers’-compensation practice do not
reflect market rates in the “relevant community,” they cannot
be used in a lodestar calculation, no matter how similar the
skills involved are. See Christensen, 557 F.3d at 1054–55
(rejecting reliance on the hourly rates awarded to attorneys in
previous Longshore Act cases); accord Van Skike, 557 F.3d
at 1046–47.
Second, and relatedly, Judge Berlin called the cap on fees
for claimants’ attorneys in Oregon workers’-compensation
cases an “open market factor” and suggested that rates
reported by workers’-compensation lawyers are market rates
because workers’-compensation attorneys “freely choose to
represent injured workers in cases very similar to [Longshore
Act cases], and they do so knowing of the cap.” But this
reasoning contradicts the BRB’s decision in Christensen;
there, the BRB found rates reported by Oregon workers’-
compensation attorneys not representative of market rates in
part because the total fee paid to claimants’ attorneys is
capped by statute. See 44 Ben. Rev. Bd. Serv. (MB) at 40; see
18 SHIRROD V. OWCP
also, e.g., Or. Rev. Stat. § 656.308(2)(d).9 We share the
BRB’s skepticism that billing rates reported under such a
regime reflect rates that are “sufficient to induce a capable
attorney to undertake the representation,” Kenny A., 559 U.S.
at 552, because the fee cap may reduce reported hourly rates
below expected hourly rates.
For example, suppose that an Oregon workers’-
compensation attorney reasonably expects to earn $400 per
hour and spend 10 hours on a case. He then spends 15 hours
on the case—for a total expected fee of $6,000—but his fee
is capped by statute at $4,500. Because of the fee cap, the
attorney’s average hourly rate for the case is $300, or $100
lower than the hourly rate he expected when he accepted the
client. Notwithstanding the operation of the fee cap in that
case, the attorney would still expect to receive $400 per hour
in his next case. If, in the next case, the attorney spends only
10 hours, basing his fee on the $300-per-hour rate earned in
the first case would undercompensate him, as that rate
represents a blend of full compensation for some time and no
compensation for other time. The lodestar method already
requires the relevant decisionmaker to award attorney’s fees
only for the number of hours reasonably expended on the
litigation—and to award no compensation for any
unreasonably spent time. See, e.g., Blum, 465 U.S. at 888.
Using a billing rate that is depressed because it assumes that
9
As mentioned previously, the practice-area rates identified by Judge
Etchingham in DiBartolomeo and adopted by Judge Berlin in this case,
which come from the Altman Weil Survey, appear to be national in scope,
not Oregon-specific. Nonetheless, we offer our view on Judge Berlin’s
reasoning because he assumed the workers’-compensation rate from
DiBartolomeo reflected the rate paid to claimants’ attorneys in Oregon,
and caps on fees for claimants’ attorneys seem to be commonplace
nationwide. Cf., e.g., Ramsey, 2012 WL 3903607, at *3 & n.3.
SHIRROD V. OWCP 19
counsel will not be fully compensated would doubly reduce
the attorney’s-fee award. See Kenny A., 559 U.S. at 546(noting that the lodestar method includes the factors relevant
to determining a “reasonable attorney’s fee” and adjustments
to the lodestar calculation may not be made “based on a
factor that is subsumed in the lodestar calculation”); see also
City of Burlington v. Dague, 505 U.S. 557, 560–67 (1992)
(rejecting as impermissible double-counting a lodestar
enhancement that accounts for the risk the attorney will not
collect a contingent fee).
We recognize that we are not in a position to evaluate
whether the billing rate for workers’-compensation practice
included in the proxy market rate in fact suffers from the flaw
we described or the other defects adverted to by the BRB in
Christensen. To the extent that it does not, and if it otherwise
reflects market rates in the “relevant community,” the BRB,
ALJs, and District Directors may be able to use it. But the
BRB’s published Christensen decision has precedential value,
see Price v. Stevedoring Servs. of Am., 697 F.3d 820, 827 (9th
Cir. 2012) (“In practice as well as theory, it is the BRB’s
published decisions . . . that are precedential and determine
the rights of future parties.”), and it provides good reasons to
doubt that the rate for workers’-compensation practice is a
market rate for Longshore Act claimants’ work. As far as we
can tell, the BRB has not repudiated its Christensen decision,
and it did not distinguish Christensen or justify a departure
from Christensen in this case. We thus find that the BRB
acted arbitrarily in allowing partial reliance on a rate reported
by workers’-compensation lawyers that, according to the
BRB’s own decisions, is not a market rate for claimant
Longshore Act representation. See Christensen, 557 F.3d at1054–55; Camacho, 523 F.3d at 979; see also Andia v.
Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (“The [Board
20 SHIRROD V. OWCP
of Immigration Appeals] acts ‘arbitrarily’ and ‘contrary to
law’ if it fails to apply and follow its own prior decisions.”).
IV
For the reasons discussed, we hold that the BRB erred in
affirming Judge Berlin’s award of attorney’s fees for work
performed by Robinowitz because the proxy market rate on
which the award depends does not adequately represent
market rates in the “relevant community,” here, Portland,
Oregon. We grant Shirrod’s petition for review, vacate the
BRB’s decision and order, and remand this case for further
proceedings.
PETITION FOR REVIEW GRANTED; VACATED
and REMANDED.