Cathy McDonald v. Navy Exchange Service Command
691 F. App'x 448
| 9th Cir. | 2017Background
- Cathy McDonald petitioned for review of the Benefits Review Board’s decision affirming an ALJ’s award of attorney’s fees under the Longshore and Harbor Workers’ Compensation Act.
- Attorney Matthew Witteman sought $400/hour and claimed numerous hours for post-award work; the ALJ set the rate at $305/hour and substantially reduced claimed hours (sustaining objections to 49 time entries and disallowing many reply hours).
- The Board affirmed the ALJ, finding Witteman failed to show his $400 rate was in line with prevailing community rates for comparable lawyers and approving the ALJ’s reliance on a prior ALJ rate decision adjusted for market differences.
- The Board also upheld the ALJ’s reductions of hours as within discretion: courts may exclude hours not reasonably expended, and judges may make rough-justice estimates.
- McDonald argued the Board/ALJ erred by ignoring critical evidence, showing partiality, misapplying law, making clearly erroneous factual findings, and failing to explain reductions with specificity.
- The Ninth Circuit denied McDonald’s petition, holding the Board did not err and the ALJ’s rate and hour reductions were supported by law and the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate hourly rate for Witteman | McDonald: ALJ wrongly set $305/hr; ignored evidence supporting $400/hr and showed bias in evaluating rate evidence | Board/Respondents: $400/hr not shown to match prevailing market; ALJ properly relied on prior ALJ rate adjusted for market | Held: ALJ and Board acted within discretion; $400/hr not established; $305/hr reasonable |
| Reduction/disallowance of claimed hours | McDonald: ALJ erroneously cut ~40% of hours, made factual errors, applied wrong law, lacked specificity | Board/Respondents: ALJ may exclude hours not reasonably expended and may estimate; many entries and reply work were unreasonable or beyond scope | Held: ALJ’s reductions and disallowance of excessive reply hours were within discretion and sufficiently explained |
Key Cases Cited
- Marine Power & Equip. v. Dep’t of Labor, 203 F.3d 664 (9th Cir. 2000) (standard for Board review of ALJ findings)
- Haw. Stevedores, Inc. v. Ogawa, 608 F.3d 642 (9th Cir. 2010) (appellate review focuses on legal error and adherence to statutory review standard)
- Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049 (9th Cir. 2009) (fee applicant must show proposed rate aligns with prevailing local rates for comparable counsel)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (court may exclude hours not reasonably expended; no precise formula)
- Fox v. Vice, 563 U.S. 826 (2011) (fee calculation aims for rough justice; judges may use estimates)
- Moreno v. City of Sacramento, 534 F.3d 1106 (9th Cir. 2008) (degree of reduction in fee awards and explanation for cuts)