FILED
NOT FOR PUBLICATION APR 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VICTOR NASSER, to the Use of Eric A. No. 09-70706
Dupree, Phillip M. Cohen, and Joshua T.
Gillelan II, BRB No. 08-0357
Petitioner,
MEMORANDUM *
v.
DIRECTOR, OFFICE OF WORKERS
COMPENSATION PROGRAMS; et al.,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
Submitted April 16, 2010 **
San Francisco, California
Before: TASHIMA and THOMAS, Circuit Judges, and STAFFORD, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William Stafford, United States District Judge for the
Northern District of Florida, sitting by designation.
Victor Nasser, solely for the benefit of his attorneys, Eric A. Dupree and
Joshua T. Gillelan II, petitions for review of the Department of Labor Benefits
Review Board’s decision affirming two orders issued by the administrative law
judge (“ALJ”), awarding attorneys’ fees and supplemental attorneys’ fees,
respectively, to Nasser’s attorneys pursuant to the Longshore and Harbor Workers’
Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-950, as extended by the
Defense Base Act (“DBA”), 42 U.S.C. §§ 1651-1654. The ALJ approved a
settlement of the underlying claim and thereafter awarded fees to Nasser’s
attorneys in an amount significantly less than requested. Nasser seeks review of
the fees awarded to Dupree and Gillelan.
Nasser first argues that the Benefits Review Board (“BRB”) erred by
affirming the ALJ’s use of an improper methodology for calculating fees. In
particular, Nasser contends that the ALJ erred when he based his lawyers’ fee
awards on past awards made by the BRB to LHWCA attorneys in other cases,
which past awards were not themselves based on any evidence of prevailing
market rates in the relevant community. Nasser contends that such
methodology—long approved by the BRB and used by ALJs in awarding
attorneys’ fees—was and is inconsistent with the Supreme Court’s case law
holding that “reasonable fees” under the LHWCA are to be calculated “according
2
to the prevailing market rates in the relevant community.” Blum v. Stenson, 465
U.S. 886, 895, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984).
One month after the BRB affirmed the ALJ’s decisions in this case, we
decided two cases that disapproved the hourly-rate-setting practice that had long
prevailed at the administrative level. Van Skike v. Dir., Office of Workers’ Comp.
Programs, 557 F.3d 1041 (9th Cir. 2009); Christensen v. Stevedoring Servs. of
Am., 557 F.3d 1049 (9th Cir. 2009). As noted in both Van Skike and Christensen,
attorneys representing LHWCA claimants are forbidden by law from negotiating or
entering into private fee agreements with their clients, which means that there is no
private competitive market for LHWCA attorney’s fees. Van Skike, 557 F.3d at
1046-47; Christensen, 557 F.3d at 1053. Accordingly, for purposes of awarding
fees under the LHWCA, the “relevant community” must be defined more broadly
than the LHWCA bar, and a “prevailing market rate” cannot be determined by
looking solely at previous LHWCA rate-settings that, in turn, were based on
previous LHWCA rate-settings. Van Skike, 557 F.3d at 1047; Christensen, 557
F.3d at 1053-54.
Nasser’s attorney, Dupree, submitted rate surveys and attorney affidavits as
evidence of market rates for similarly-experienced attorneys doing work of
comparable complexity. The respondents countered with no evidence of prevailing
3
market rates; instead, they submitted copies of six reported LHWCA cases wherein
ALJs had awarded fees to attorneys in the Western United States based not on
marketplace rates but on ALJ-determined hourly rates ranging from $225 to $300.
Rejecting Dupree’s evidence of market rates, the ALJ selected an hourly
rate—$285 per hour—from within the range of rates reported in the six LHWCA
cases submitted by the respondents.1 The ALJ thus used the very methodology that
was invalidated in Van Skike and Christensen.
Nasser also argues that the ALJ erred by denying fees on fees for all of the
attorney time spent challenging the ALJ’s and BRB’s entrenched hourly-rate
methodology. The ALJ reduced the hours requested by Dupree in his
supplemental application from 136.7 hours to 4.05 hours, explaining that the
“severe” discount was “due to lack of success on the major issue argued, the hourly
rate sought.” Because Dupree has now unquestionably prevailed on the issue
regarding the BRB’s hourly-rate methodology, the ALJ’s rationale for the
reduction in hours is no longer valid.
1
In selecting $285 rather than a higher rate within the range, the ALJ
explained that “none of the work performed herein appears to be so complex as to
warrant a higher rate.” Complexity of issues, however, does not factor into the
selection of a market rate. Instead, case complexity is reflected in the number of
billable hours recorded by counsel. Blum, 465 U.S. at 898-99; Van Skike, 557
F.3d at 1048.
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Because the ALJ in this case awarded—and the BRB affirmed—attorneys’
fees based on an hourly rate methodology that has been invalidated by this court,
we VACATE the BRB’s decision and REMAND for the agency decisionmaker to
re-evaluate the fee awards to Nasser’s attorneys. On remand, the agency
decisionmaker is directed (1) to make appropriate findings regarding the relevant
community and the prevailing market rate in accordance with our opinions in Van
Skike and Christensen; (2) to reconsider whether the hours requested in Dupree’s
supplemental fee application were reasonable under the circumstances; and (3) to
recalculate the fee awards based on the foregoing factors.
5