Christensen v. Owcp ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE W. CHRISTENSEN, 
Petitioner,
No. 07-70247
v.
OWCP No.
DIRECTOR, OFFICE OF WORKERS  BRB 03-0302
COMPENSATION PROGRAMS; District of Oregon,
STEVEDORING SERVICES OF AMERICA; Portland
HOMEPORT INSURANCE CO.,
Respondents.

AREL PRICE, 
Petitioner,
No. 07-70297
v.
OWCP No.
U.S. DEPARTMENT OF LABOR;  BRB 01-0632
STEVEDORING SERVICES OF AMERICA; District of Oregon,
HOMEPORT INSURANCE CO.; EAGLE Portland
PACIFIC INSURANCE COMPANY,
Respondents.

DAVID VAN SKIKE, 
Petitioner,
No. 07-73886
v.
BRB Nos.
DIRECTOR, OFFICE OF WORKERS
COMPENSATION PROGRAMS; CENEX  06-0904
07-0118
HARVEST STATES COOPERATIVE; District of Oregon,
LIBERTY NORTHWEST INSURANCE Portland
CORP.,
Respondents.

10757
10758 CHRISTENSEN v. DIRECTOR, OWCP
REX DYER,  No. 07-73549
Petitioner,
OWCP No.
v.
CENEX HARVEST STATES  07-0164
District of Oregon,
COOPERATIVE; DIRECTOR, OFFICE OF Portland
WORKERS COMPENSATION PROGRAMS,
ORDER
Respondents.

Filed August 10, 2009
Before: William A. Fletcher and Raymond C. Fisher,
Circuit Judges, and John M. Roll, Chief District Judge.*
ORDER
The above-captioned cases are consolidated for the purpose
of resolving the opposed motions for appellate attorney’s fees
pending in each case.
In these appeals, petitioners Bruce Christensen, Arel Price,
David Van Skike and Rex Dyer challenged the attorney’s fees
awarded to them under 33 U.S.C. § 928(a) after they were
successful in obtaining benefits from their employers under
the Longshore and Harbor Workers’ Compensation Act
(“LHWCA”), 33 U.S.C. §§ 901-950. In a series of published
opinions, we held, inter alia, that the methodology employed
by the Benefits Review Board and other agency decision
makers in determining the reasonable hourly rate for attor-
ney’s fees under the LHWCA was flawed, we vacated the fee
awards, and we remanded for further proceedings to deter-
*The Honorable John M. Roll, United States District Judge for the Dis-
trict of Arizona, sitting by designation.
CHRISTENSEN v. DIRECTOR, OWCP 10759
mine the reasonable hourly rate. See Dyer v. Cenex Harvest
States Co-op., 563 F.3d 1044 (9th Cir. 2009); Christensen v.
Stevedoring Servs. of Amer., 557 F.3d 1049 (9th Cir. 2009);
Van Skike v. Dir., OWCP, 557 F.3d 1041 (9th Cir. 2009).
Charles Robinowitz represented petitioners throughout the
administrative proceedings and prepared the briefs in each of
these appeals. Joshua T. Gillelan II argued the cases before
us. Petitioners now seek attorney’s fees under 33 U.S.C.
§ 928(a) for the time their attorneys spent on the appeals.
Robinowitz and Gillelan submitted separate attorney’s fees
applications for each appeal. For the reasons stated below, we
grant the applications for appellate attorney’s fees and refer
the determination of an appropriate amount of fees to the
court’s special master, Appellate Commissioner Peter L.
Shaw, see 9th Cir. R. 39-1.9.
1. We reject respondents’ contention that Gillelan’s fee
requests in Van Skike, Christensen and Price were untimely.
All three cases had been consolidated for oral argument, but
only Christensen and Price had been consolidated as a single
appeal. Gillelan timely submitted a single fee request for Van
Skike, Christensen and Price, which the clerk struck, because
Gillelan needed to submit a separate fee request for Van
Skike. We conclude that Gillelan’s subsequent filings correct-
ing this technical error relate back to the date of the initial,
stricken filing and are therefore timely.
2. We reject respondents’ argument that Gillelan’s fee
requests should be denied because he has not submitted evi-
dence demonstrating petitioners authorized his representation.
33 U.S.C. § 928(a) authorizes an award of “a reasonable attor-
ney’s fee against the employer or carrier in an amount
approved by the . . . court.” The implementing regulation,
entitled “Fees for services,” provides that “[a]ny person seek-
ing a fee for services performed on behalf of a claimant with
respect to claims filed under the Act shall make application
therefor to the district director, administrative law judge,
10760 CHRISTENSEN v. DIRECTOR, OWCP
Board, or court, as the case may be, before whom the services
were performed.” 20 C.F.R. § 702.132(a) (emphases added).
Gillelan provided services for petitioners and has applied to
us for appellate fees, so he has complied with the plain terms
of these provisions.
20 C.F.R. § 702.131(a), which is entitled “Representation
of parties in interest,” provides that “[c]laimants, employers
and insurance carriers may be represented in any proceeding
under the Act by an attorney or other person previously autho-
rized in writing by such claimant, employer or carrier to so
act.” Respondents did not object to Gillelan’s notice of
appearance or suggest prior to oral argument that he had
failed to comply with § 702.131(a). Even if an attorney’s enti-
tlement to fees under § 702.132(a) is implicitly dependent on
compliance with § 702.131(a), respondents have waived any
objection they might have as to whether Gillelan was autho-
rized to represent claimants under § 702.131(a). At this point,
there is no doubt Gillelan did represent petitioners’ interests
in these appeals, which is the only precondition that
§ 702.132(a) establishes for recovering attorney’s fees.
Because respondents waived any objection under
§ 702.131(a), we express no opinion whether an attorney may
recover attorney’s fees if the employer timely objects under
§ 702.131(a) and the attorney then fails to provide documen-
tation that the claimant authorized the representation.
3. We disagree with respondents’ contention that the fee
requests in each appeal are premature because petitioners
have not established their entitlement to an hourly rate higher
than what the agency awarded below. Respondents reason
that petitioners have not necessarily prevailed in these
appeals, because they might receive the same hourly rate on
remand. This argument overlooks that petitioners’ primary
argument in Christensen/Price and Van Skike, and one of peti-
tioner’s two main arguments in Dyer, was that the agency was
artificially depressing the reasonable hourly rate for the
LHWCA bar by relying exclusively on past LHWCA fee
CHRISTENSEN v. DIRECTOR, OWCP 10761
awards and refusing to look at market evidence when deter-
mining a reasonable hourly rate. Petitioners unquestionably
prevailed on this issue, because we invalidated the agency’s
methodology. On remand, the agency decision makers will
evaluate petitioners’ requested hourly rate based on market
considerations rather than past LHWCA fee awards, which is
the primary relief petitioners sought in these appeals. See
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health
& Human Res., 532 U.S. 598, 603 (2001) (holding “a ‘pre-
vailing party’ is one who has been awarded some relief by the
court”). Because petitioners prevailed in these appeals,
regardless of whether the agency increases the reasonable
hourly rate on remand, their applications for appellate attor-
ney’s fees are not premature.
Richardson v. Continental Grain Co., 336 F.3d 1103 (9th
Cir. 2003), upon which respondents rely, is inapposite. The
issue in that case was whether the LHWCA’s fee-shifting pro-
vision, § 928(a), had been triggered, so our opinion focused
only on whether petitioner had successfully prosecuted his
claim for benefits under the LHWCA. See id. at 1105-06.
Here, it is undisputed that petitioners successfully prosecuted
their underlying claims for benefits, so their entitlement to
employer-paid attorney’s fees under § 928(a) is already set-
tled.
4. The determination of an appropriate amount of attor-
ney’s fees is referred to the court’s special master, Appellate
Commissioner Peter L. Shaw, who shall conduct whatever
proceedings he deems appropriate, and who shall have author-
ity to enter an order awarding fees. See 9th Cir. R. 39-1.9. The
order is subject to reconsideration by the panel. See id.
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