Stevedoring Services of America, Inc. v. Director, Office of Workers Compensation Programs

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 01 2011

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
STEVEDORING SERVICES OF No. 10-73574
AMERICA, INC.; HOMEPORT
INSURANCE COMPANY, OWCP No. 03-0302

Petitioners,
MEMORANDUM*
v.

DIRECTOR, OFFICE OF WORKERS
COMPENSATION PROGRAMS; BRUCE
W. CHRISTENSEN,

Respondents.

On Petition for Review of Orders of the
Benefits Review Board

Submitted July 13, 2011**
Portland, Oregon

Before: PREGERSON, WARDLAW, and M. SMITH, Circuit Judges.

Petitioners Stevedoring Services of America, Inc. and Homeport Insurance

Company appeal several orders of the Benefits Review Board of the United States

*
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).
Department of Labor (the Board) that awarded attorney’s fees to Respondent Bruce

Christensen and his attorney Charles Robinowitz. Because the parties are familiar

with the factual and procedural history of this case, including numerous prior appeals

to this court, Christensen v. Stevedoring Servs. of Am., Inc., 430 F.3d 1032 (9th Cir.

2005) (Christensen I); Christensen v. Dir., OWCP, 171 Fed. App’x 162 (9th Cir. Mar.

15, 2006) (Christensen II); Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049

(9th Cir. 2009) (Christensen III), we repeat only those facts necessary to resolve the

issues raised in this appeal. We have jurisdiction under 33 U.S.C. § 921(c), and we

affirm.

Petitioners’ contention that the Supreme Court’s decision in Perdue v. Kenny

A., 130 S. Ct. 1662 (2010), alters our precedent in Christensen III lacks merit. No

language in Perdue disturbs Christensen III’s holding that the Board should use

“prevailing market rates in the relevant community” based on the lawyer’s practice

area, skill, and experience. See Christensen III, 557 F.3d at 1053 (rates should be “in

line with those prevailing in the community for similar services by lawyers of

reasonably comparable skill, experience and reputation”) (quoting Blum v. Stetson,

465 U.S. 886, 896 n.11 (1984)); see also B&G Mining, Inc. v. Dir., OWCP, 522 F.3d

657, 663 (6th Cir. 2008) (“To arrive at a reasonable hourly rate, courts use as a

guideline the prevailing market rate, defined as the rate that lawyers of comparable

skill and experience can reasonably expect to command within the venue of the court

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of record.”). Perdue addressed the “rare circumstances” in which a properly

calculated lodestar may nevertheless be “enhanced,” and that simply was not an issue

in this litigation. 130 S. Ct. at 1669, 1673.

Nor did the Board abuse its discretion in awarding fees from the Oregon Bar

Survey based on the average rates of general civil litigation attorneys. A reasonable

attorney’s fee must be based on the relevant community and prevailing market rate.

Christensen III, 557 F.3d at 1053–54. The Board reasonably concluded that the

relevant community was Portland, Oregon and that insurance defense rates were not

“market,” especially in light of the volume discounts involved in such work. Each

factor the Board relied on was corroborated by evidence in the record in the form of

affidavits and surveys. See United Steelworkers of Am. v. Phelps Dodge Corp., 896

F.2d 403, 407 (9th Cir. 1990) (“Affidavits of the plaintiffs’ attorney[s] and other

attorneys regarding prevailing fees in the community, and rate determinations in other

cases . . . are satisfactory evidence of the prevailing market rate.”).

We have considered Petitioners’ remaining arguments and hold that they do not

alter the foregoing analysis. Accordingly, the orders of the Benefits Review Board are

AFFIRMED.

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