Seachris v. Brady-Hamilton Stevedore Co., No. 18-71807 (9th Cir. 2021)Annotate this Case
The Ninth Circuit granted a petitioner for review of the BRB's decision upholding the ALJ's award of attorney's fees and costs under the Longshore and Harbor Workers' Compensation Act (LHWCA), in an action brought by petitioner for death benefits.
The panel held that aspects of the decisions under review constitute legal error and are not supported by substantial evidence. Specifically, the panel held that the ALJ improperly rejected the fee applicant's evidence of prevailing market rates, erroneously established a paralegal's hourly rate by reference to other ALJ decisions rather than evidence of prevailing market rates in the relevant community, and improperly denied fees for hours reasonably expended. Furthermore, the ALJ and the BRB erred in concluding that the LHWCA does not authorize an award of interest on costs. Therefore, the panel remanded to the BRB for further proceedings and ordered the BRB to reassign this matter to a different ALJ on remand.
Court Description: Longshore Act / Attorney’s Fees. The panel granted a petition for review of a decision of the Benefits Review Board (“BRB”) that upheld an administrative law judge (“ALJ”)’s award of attorney’s fees and costs under the Longshore and Harbor Workers’ Compensation Act. Petitioner filed a claim for death benefits under the Longshore Act, and was represented in the proceedings by attorney Charles Robinowitz. An ALJ granted petitioner’s claim for benefits, and Robinowitz requested “a reasonable attorney’s fee” under 33 U.S.C. § 928(a). Robinowitz sought an hourly rate of $450, but the BRB awarded him a rate of $349.85 per hour. The panel held that the ALJ erred by concluding that Robinowitz failed to satisfy his initial burden of producing evidence of a prevailing market rate for his services. Robinowitz presented substantial evidence that his requested rate of $450 an hour, in 2016, was in line with the prevailing rate in the community for similar services by lawyers of comparable skill, experience, and reputation. The panel concluded that the ALJ’s contrary conclusion was not supported by substantial evidence, and the ALJ’s concerns at most went to the weight of the evidence, not its sufficiency. SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 3 The panel held that the ALJ erred by rejecting Robinowitz’s evidence of prevailing market rates as outdated because the conclusion was not supported by substantial evidence. Evidence of historical market conditions is relevant evidence of current market conditions, and reliance on such evidence is particularly appropriate when it is the most current information available. The panel held that the ALJ erred by rejecting Robinowitz’s evidence of commercial litigation rates. First, the ALJ appeared to have conflated commercial litigation and complex litigation. Second, there was no discernable rational basis for the ALJ’s selective concerns about the differences between formal and informal litigation. The panel held that the ALJ erred by rejecting Robinowitz’s evidence from the 2012 Oregon State Bar Survey of hourly rates. The panel held further that the ALJ’s decision to place Robinowitz within the 75th percentile of attorneys in the plaintiff civil litigation and general practice areas under the 2012 Oregon State Bar Survey must be vacated because that decision appeared to have been influenced by an improper factor, namely, the ALJ’s unwarranted irritation with a brief that Robinowitz filed on remand from this court. The panel held that the ALJ’s decision to include the “general” practice area in her analysis was not supported by substantial evidence. There was abundant evidence in the record to show that Robinowitz was a specialist, with significant experience and success in handling Longshore Act cases. 4 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY The panel concluded that the ALJ and the BRB committed legal error in determining the hourly rate, and that the ALJ’s determination of the hourly rate was not supported by substantial evidence. The panel granted the petition for review on this issue, and remanded for further proceedings. The panel held that the ALJ erred by awarding Robinowitz’s paralegal a rate of $150 per hour rather than $165 per hour as requested. First, the ALJ erred by relying almost exclusively on the rates awarded by other ALJs. Second, the ALJ’s reliance on the district court’s reliance on the district court’s awards was flawed because the decisions upon which the ALJ relied set paralegal rates based on survey data pertaining to the western United States as a whole, rather than the relevant Portland community. Robinowitz provided the only record evidence of market rates for Portland paralegals. The panel granted the petition for review on this issue, and directed that the BRB on remand award Robinowitz’s paralegal a rate of $165 per hour. The ALJ on remand ordered petitioner to file a supplemental brief addressing matters that this court had already decided. Rather than addressing the issues called for in the ALJ’s supplemental briefing order, Robinowitz used the brief to take issue with the ALJ’s interpretation of this court’s decision. The panel held that the ALJ improperly reduced Robinowitz’s fees for preparing the supplemental brief. The panel held that the ALJ’s anger over Robinowitz’s position on remand permeated the entire fee order, and it appeared that the ALJ improperly reduced Robinowitz’s fees for preparing the supplemental brief as a sanction. The panel granted the petition for review on this issue. SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 5 The panel held that the ALJ and the BRB erred by holding that the Longshore Act did not permit an award of interest on costs to account for delay in payment. The panel granted the petition for review on this issue, and directed the BRB on remand to determine whether an award of interest on costs was appropriate because of the exceptionally protracted period that this case has been pending. Finally, the panel held that the tone of the ALJ’s decision and the manner in which the ALJ evaluated the evidence suggested that the ALJ may not be able to provide Robinowitz with a fair and impartial hearing on remand. Accordingly, the panel sua sponte directed that the BRB reassign this matter to a different ALJ on remand to avoid the appearance of impropriety.