653 F. App'x 528
9th Cir.2016Background
- Ronnie Bell injured his knee at work on August 31, 2009, and filed a timely LHWCA claim for disability benefits.
- The DOL District Director recommended payment, but employer SSA Terminals did not pay within 30 days of notice as required.
- SSA Terminals made partial retroactive payments on October 8, 2010, and later agreed to ongoing permanent partial disability payments on November 29, 2010; only attorney’s fees remained in dispute.
- Bell sought attorney’s fees under 33 U.S.C. § 928(a) for the employer’s failure to timely pay; SSA Terminals and its insurer contested fee liability and rate issues before the ALJ and the BRB.
- The BRB awarded attorney’s fees and approved the ALJ’s determinations on hourly rates and reductions for clerical tasks; both parties appealed discrete aspects to the Ninth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel Dupree was a party such that fee claims were properly before the BRB | Bell: Fees pertain to claimant’s appeal; caption need not name Dupree | SSA: Fees implicate only Dupree’s interest; omission in caption deprived SSA of cross-appeal rights | Aldo: Dupree was a party-in-interest under regulation; caption was sufficient and BRB correctly heard fee issues |
| Whether SSA is liable for fees incurred after it later paid some benefits (post-Oct 8, 2010) | Bell: Liability under §928(a) continues for entire litigation because employer failed to pay within 30 days | SSA: Payment after initial refusal limits or negates fee liability for later fees | Held: Employer’s failure to pay within 30 days triggers §928(a) liability for the duration of litigation, including fees after payments were made |
| Whether ALJ/BRB erred in setting prevailing hourly rates for Dupree and Myers | Bell: Requested higher rates; submitted market evidence | SSA: Rates too high | Held: BRB may defer to ALJ factual findings; ALJ acted within discretion and adequately explained reductions; affirmed |
| Whether attorneys may bill for time supervising clerical tasks | Bell: Supervision of clerical staff is distinct and billable | SSA: Clerical work (including supervision) is overhead and non-billable | Held: Time for clerical tasks and their supervision is overhead and non-billable; ALJ and BRB correctly disallowed it |
| Whether ALJ erred in refusing to accept Bell’s reply to employer’s opposition without permission | Bell: Reply should have been considered | SSA: Reply was not authorized under rules | Held: 29 C.F.R. §18.6(b) requires permission to file a reply; ALJ properly refused to consider the unauthorized reply |
| Whether ALJ erred in refusing evidence submitted on reconsideration of prevailing rates | Bell: New evidence should be considered | SSA: Evidence was available earlier and improperly submitted on reconsideration | Held: Reconsideration cannot introduce evidence that could have been presented earlier; refusal affirmed |
Key Cases Cited
- Stevens v. Dir., OWCP, 909 F.2d 1256 (9th Cir. 1990) (standard of de novo review for BRB legal determinations)
- Dyer v. Cenex Harvest States Co-op., 563 F.3d 1044 (9th Cir. 2009) (§928(a) liability when employer fails to pay within 30 days; fees may run through litigation)
- Richardson v. Cont’l Grain Co., 336 F.3d 1103 (9th Cir. 2003) (successful claimant obtains fees where relief materially alters legal relationship)
- Farrar v. Hobby, 506 U.S. 103 (U.S. 1992) (test for whether plaintiff obtained relief that materially altered legal relationship)
- Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049 (9th Cir. 2009) (attorney-fee practice in LHWCA contexts; market-rate guidance)
- Van Skike v. Dir., OWCP, 557 F.3d 1041 (9th Cir. 2009) (ALJ/BRB discretion on fee evidence and rate determinations)
- Camacho v. Bridgeport Fin., Inc., 523 F.3d 973 (9th Cir. 2008) (burden to produce satisfactory evidence of market rates)
- Shirrod v. Dir., OWCP, 809 F.3d 1082 (9th Cir. 2015) (standard for disturbing BRB factual findings)
- Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877 (9th Cir. 2000) (motions for reconsideration may not present arguments or evidence that could have been raised earlier)