FILED
NOT FOR PUBLICATION MAR 07 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HEIDI EBERLY-SHERMAN, No. 10-73713
Petitioner, OWCP No. 14-134194
v.
MEMORANDUM *
DEPARTMENT OF ARMY/NAF;
DIRECTOR, OFFICE OF WORKERS
COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order of the
Office of Workers Comp Program
Argued and Submitted February 15, 2012
San Francisco, California
Before: HUG, B. FLETCHER, and PAEZ, Circuit Judges.
Heidi Eberly-Sherman petitions for review of the final order of the Benefits
Review Board (“BRB”) affirming an administrative law judge’s (“ALJ”) award of
attorney’s fees to her attorney, Charles Robinowitz, pursuant to the Longshore and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Harbor Workers’ Compensation Act (“Longshore Act”), 33 U.S.C. § 901 et seq.
Petitioner contends that the BRB erred in affirming a $309.00 hourly rate for
Robinowitz and a $110.00 hourly rate for Robinowitz’s legal assistant. Because
the parties are familiar with the factual and procedural history of this case, we need
not recount it here. We have jurisdiction under 33 U.S.C. § 921(c), and we deny
the petition.
“[T]he burden is on the fee applicant to produce satisfactory
evidence . . . that the requested rates are in line with those prevailing in the
community for similar services by lawyers of reasonably comparable skill,
experience and reputation.” Christensen v. Stevedoring Servs. of Am., 557 F.3d
1049, 1053 (9th Cir. 2009) (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11
(1984)). The BRB did not err in concluding that Robinowitz failed to meet this
burden. See Van Skike v. Dir., Office of Workers’ Comp. Programs, 557 F.3d
1041, 1045-46 (9th Cir. 2009).
The BRB did not err in affirming the ALJ’s decision to consider the hourly
rates of workers’ compensation attorneys in setting Robinowitz’s rate. A major
consideration in determining an appropriate fee award under the Longshore Act is
the market rate of attorneys employing legal skills similar to those required by
Longshore practice. See Christensen, 557 F.3d at 1053. Here, the ALJ considered
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rates charged by workers’ compensation attorneys in calculating Robinowitz’s
hourly rate because the ALJ determined that workers’ compensation practice
requires legal skills similar to those required by Longshore practice. Substantial
evidence supports this finding. This is especially true because Longshore practice
is a form of workers’ compensation practice. See 33 U.S.C. § 902(2).
The BRB did not err in affirming the ALJ’s refusal to place Robinowitz in
the top ten percent of his peers. The ALJ had an opportunity to observe
Robinowitz’s filings in the fee proceeding and had access to the record for the
case. The record included an order by a different ALJ, which explained that
Robinowitz had made “sophomoric,” “careless,” and “egregious” errors in his
representation of Eberly-Sherman. While the BRB modified that order, it did not
set aside the ALJ’s findings regarding the quality of Robinowitz’s work.
Therefore, substantial evidence supports the ALJ’s refusal to place Robinowitz in
the top ten percent of his peers. Additionally, the ALJ’s consideration of the
quality of Robinowitz’s representation in the case does not violate Perdue v. Kenny
A. ex rel. Winn, ––– U.S.––––, 130 S. Ct. 1662 (2010), because unlike the district
court in Perdue, the ALJ in this case considered representation quality only once
when determining the reasonable hourly rate. See id. at 1674–76 (holding that the
district court erred by enhancing a lodestar award by 75%, based on performance,
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because the lodestar method incorporates hourly rates based upon attorney market
value).
The BRB also did not err in affirming the ALJ’s consideration of Oregon
market rates instead of Portland market rates. An attorney’s fee is “calculated
according to the prevailing market rates in the relevant community.” Christensen,
557 F.3d at 1053 (quoting Blum, 465 U.S. at 895). “The relevant community is
generally defined as the forum in which the district court sits.” Van Skike, 557
F.3d at 1046 (internal quotation marks and citation omitted). In this case, the
district court is located in Portland, Oregon, but its jurisdiction includes the entire
state of Oregon. In light of Mr. Robinowitz’s failure to provide satisfactory
evidence establishing that the hourly rate for attorneys providing similar services to
Longshore Act work is higher in Portland than it is in the rest of Oregon,
substantial evidence supports the ALJ’s reliance on Oregon fee rates.
Finally, because Robinowitz failed to carry his burden to produce
satisfactory evidence supporting his requested legal assistant rate, the BRB did not
err by affirming the awarded legal assistant rate. See Christensen, 557 F.3d at
1055.
PETITION DENIED.
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