Vortex Marine Construction v. Terry Grimm ( 2017 )


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  •                   FOR PUBLICATION
    
      UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT
    
    
    VORTEX MARINE                         No. 15-72258
    CONSTRUCTION, employer;
    SIGNAL MUTUAL INDEMNITY                 BRB No.
    ASSOCIATION, Insurance                  14-0323
    Carrier,
                     Petitioners,
                                                ORDER
                 v.
    
    TERRY GRIMM; GENERAL
    CONSTRUCTION COMPANY;
    ST. PAUL FIRE AND MARINE
    INSURANCE COMPANY;
    DIRECTOR, OFFICE OF
    WORKERS’ COMPENSATION
    PROGRAM; U.S. DEPARTMENT
    OF LABOR,
                    Respondents.
    
    
                      Filed December 22, 2017
    
       Before: Michael Daly Hawkins, Marsha S. Berzon,
            and Andrew D. Hurwitz, Circuit Judges
    2        VORTEX MARINE CONSTRUCTION V. GRIMM
    
                                SUMMARY*
    
    
               Attorneys’ Fees/Benefits Review Board
    
        The panel upheld the Appellate Commissioner’s order
    awarding attorneys’ fees and costs for a petition for review in
    the amount of $32,280 in favor of Terry Grimm and against
    Vortex Marine Construction and Signal Mutual Indemnity
    Association, and amending the mandate; and awarded
    attorneys’ fees for the fee litigation in the amount of $20,060
    in favor of Terry Grimm and against Vortex Marine and
    Signal Mutual.
    
        After Vortex Marine and Signal Mutual dismissed a
    petition for review of a decision of the Benefits Review
    Board, the panel granted Grimm’s motion for an award of
    attorneys’ fees on review and referred the determination of an
    appropriate amount of fees on review to the Appellate
    Commissioner, and also referred to the Appellate
    Commissioner for a report and recommendation on Grimm’s
    supplemental attorneys’ fees motion, including the issue of
    entitlement to fees for defending the fee application.
    
        In its order, the panel agreed with the Appellate
    Commissioner that Baker Botts L.L.P. v. ASARCO LLC,
    
    135 S. Ct. 2158
    , 2168 (2015), did not prevent an award of
    attorney’s fees for the fee litigation under the Longshore and
    Harbor Workers’ Compensation Act, 33 U.S.C. § 928(a).
    The panel noted that under fee-shifting statutes, like § 928(a)
    of the Longshore Act, courts uniformly decline to treat
    
        *
          This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
            VORTEX MARINE CONSTRUCTION V. GRIMM                  3
    
    fee–application and fee-litigation work differently.
    Accordingly, the panel upheld the Appellate Commissioner’s
    order awarding attorneys’ fees and costs for the petition for
    review; and awarded attorneys’ fees for the fee litigation in
    the amount of $20,060 in favor of Grimm and against Vortex
    Marine Construction and Signal Mutual Indemnity
    Association.
    
    
                             COUNSEL
    
    James P. Aleccia, Aleccia & Mitani, Long Beach, California,
    for Petitioners.
    
    Eric A. Dupree and Paul R. Meyers, Dupree Law aplc,
    Coronado, California; Joshua T. Gillelan II, Longshore
    Claimants’ National Law Center, Washington, D.C.; for
    Respondent Terry Grimm.
    
    
                              ORDER
    
        After Vortex Marine Construction and Signal Mutual
    Indemnity Association dismissed the petition for review, we
    granted Terry Grimm’s motion for an award of attorneys’
    fees on review and referred the determination of an
    appropriate amount of fees on review to the Appellate
    Commissioner. See 9th Cir. R. 39-1.9. We also referred to
    the Appellate Commissioner for a report and recommendation
    Grimm’s supplemental attorney’s fees motion, including the
    issue of entitlement to fees for defending the fee application.
    The Appellate Commissioner awarded Grimm’s attorneys’
    fees and costs for the petition for review in the amount of
    4       VORTEX MARINE CONSTRUCTION V. GRIMM
    
    $32,280, and recommended that we award Grimm’s
    attorneys’ fees for the fee litigation in the amount of $20,060.
    
         The parties have not requested reconsideration of the
    Appellate Commissioner’s order or objected to the Appellate
    Commissioner’s report and recommendation. We agree with
    the Appellate Commissioner’s determination that Baker Botts
    L.L.P. v. ASARCO LLC, 
    135 S. Ct. 2158
    , 2168 (2015), does
    not prevent an award of attorneys’ fees for the fee litigation
    here under the Longshore and Harbor Workers’
    Compensation Act (“LHWCA”), 33 U.S.C. § 928(a). In
    Baker Botts, the court held that the text of § 330(a)(1) of the
    Bankruptcy Code does not shift the costs of adversarial
    litigation from one side to the other, and it does not displace
    the American Rule with respect to fee-defense litigation. See
    id. at 2165–67; see also Micha v. Sun Life Assurance of
    Canada, Inc., 
    874 F.3d 1052
    , 1062 n.2 (9th Cir. 2017)
    (Berzon, J., concurring). But § 928(a) of the LHWCA is a
    fee-shifting statute that departs from the American Rule and
    explicitly shifts to the employer or carrier the responsibility
    for payment of a reasonable fee for attorney services for the
    adversarial litigation if the claimant successfully prosecutes
    the claim. See Shirrod v. Dir., OWCP, 
    809 F.3d 1082
    , 1084,
    1086 (9th Cir. 2015); see also Baker Botts, 135 S. Ct. at
    2164–65, 2167–68. Under fee-shifting statutes like § 928(a),
    courts have uniformly declined to treat fee-application and
    fee-litigation work differently, and have consistently held that
    time spent establishing the entitlement to and amount of the
    fee is compensable. See Baker Botts, 135 S. Ct. at 2167–68
    (citing Comm’r, INS v. Jean, 
    496 U.S. 154
    , 158, 162 (1990));
    Blixseth v. Yellowstone Mtn. Club, 
    854 F.3d 626
    , 629, 631–32
    (9th Cir. 2017) (citing In re S. Cal. Sunbelt Developers, Inc.,
    
    608 F.3d 456
    , 462–64 & n.4 (9th Cir. 2010)).
           VORTEX MARINE CONSTRUCTION V. GRIMM                5
    
         Thus, the Appellate Commissioner’s order awarding
    attorneys’ fees and costs for the petition for review in the
    amount of $32,280 in favor of Terry Grimm and against
    Vortex Marine Construction and Signal Mutual Indemnity
    Association, and amending the mandate, remains in effect.
    Accordingly, we hereby award attorneys’ fees for the fee
    litigation in the amount of $20,060 in favor of Terry Grimm
    and against Vortex Marine Construction and Signal Mutual
    Indemnity Association. This order amends the court’s
    mandate.
    

Document Info

DocketNumber: 15-72258

Filed Date: 12/22/2017

Modified Date: 12/22/2017