FILED
NOT FOR PUBLICATION JUL 19 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MID-COAST MARINE, INC.; SAIF No. 10-72798
CORPORATION,
BRB No. 09-0136
Petitioners,
v. MEMORANDUM *
DIRECTOR, OFFICE OF WORKERS
COMPENSATION PROGRAMS;
UNITED STATES DEPARTMENT OF
LABOR,
Respondents,
and
JERRY W. UTTERBACK,
Claimant.
On Petition for Review of an Order of the
Benefits Review Board
Submitted July 13, 2011 **
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: PREGERSON, WARDLAW, and M. SMITH, Circuit Judges.
Petitioners Mid-Coast Marine, Inc. and SAIF Corporation appeal a final
Order of the Benefits Review Board of the United States Department of Labor (the
Board) that awarded employer-paid attorney’s fees to claimant–Respondent Jerry
Utterback and his attorney Charles Robinowitz. Because the parties are familiar
with the factual and procedural history of this case, we repeat only those facts
necessary to resolve issues raised in the appeal. We have jurisdiction under 33
U.S.C. § 921(c), and we affirm.
In this case, the Board followed its published decision on reconsideration in
a May 2010 Order in Christensen v. Stevedoring Services of America, 44 Ben. Rev.
Bd. Serv. 39 (2010). Not every fee award warrants an exhaustive recitation of
competing evidence. Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049,
1055 (9th Cir. 2009). No such recitation was required here. The relevant
community and reasonable rate in this case were not distinct from those the Board
identified in Christensen. The Oregon Bar Survey takes into account two key
factors, “relevant community” (Portland) and “market rate” (plaintiff’s civil
litigation), that we directed the Board to use in Christensen, 557 F.3d at 1054–55.
The Board explained why it discounted Petitioners’ evidence as well as the reasons
to adhere to the May 2010 Christensen Order. The Board also had a sufficient
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record from which to conclude that insurance defense rates were not representative
of Robinowitz’s practice, especially in light of volume discounts and statutory
caps.
We have considered Petitioners’ remaining arguments and hold that they do
not alter our conclusions. Accordingly, the Order of the Benefits Review Board is
AFFIRMED.
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