809 F.3d 1082
9th Cir.2015Background
- Shirrod sustained knee and ankle injuries working on a barge-refitting project in Oregon and is entitled to Longshore Act benefits.
- An ALJ awarded Shirrod $33,581.17 in attorney’s fees for Robinowitz’s work before the ALJ, at an hourly rate of $340 (reduced from $400).
- The BRB affirmed the ALJ’s fee award; Shirrod challenged the hourly rate as based on an improper proxy market rate.
- The proxy rate relied on by the ALJ/BRB drew from the Altman Weil data and a Portland-area/ Oregon-NW framework, rather than Portland-specific market data.
- Prior cases DiBartolomeo and Castillo informed the approach, using a proxy market rate, which this court finds inadequate for Portland.
- The court remands and vacates the BRB decision, holding the rate cannot stand as a market-rate proxy tailored to the relevant community.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What is the relevant community for the fee award? | Shirrod argues Portland is the relevant community. | Pacific Rim contends a broader Oregon or other region could apply. | Portland, Oregon is the relevant community for this case. |
| Is the proxy market rate tailored to the relevant community adequate? | Proxy rate based on Altman Weil data not Portland-specific is inadequate. | Proxy market rates are permissible when they approximate market rates. | The proxy market rate used was not adequately tailored to Portland and was error. |
| May workers’-compensation rates be used in determining market rates for Longshore Act fees? | Inclusion of workers’-compensation rates yields a lower, non-market rate. | Workers’ comp rates reflect related practice areas and should be considered. | Including the workers’-compensation rate was improper; it does not reflect market rates for this context. |
Key Cases Cited
- Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049 (9th Cir. 2009) (markets for fee awards must reflect independent market rates, not self-referential Longshore data)
- Van Skike v. Dir., OWCP, 557 F.3d 1041 (9th Cir. 2009) (limits on reliance on prior Longshore Act fee awards for market rate)
- Camacho v. Bridgeport Fin., Inc., 523 F.3d 973 (9th Cir. 2008) (requires explicit justification for “relevant community” and market-rate data)
- Jeffboat, LLC v. Dir., OWCP, 553 F.3d 487 (7th Cir. 2009) (discussion of possible national vs. local market in determining relevant community)