Stevedoring Services of America v. Price ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEDORING SERVICES OF AMERICA; 
HOMEPORT INSURANCE CO.,
Petitioners, No. 02-71207
v. BRB Nos.
AREL PRICE; EAGLE PACIFIC  01-0632/A
14-108163
INSURANCE COMPANY; DIRECTOR, 14-128687
OFFICE OF WORKERS COMPENSATION 92-LHCA-2469
PROGRAMS,
Respondents.

AREL PRICE,  No. 02-71578
Petitioner,
BRB Nos.
v.
01-0632/A
STEVEDORING SERVICES OF AMERICA;
HOMEPORT INSURANCE CO.; EAGLE  14-108162
14-128687
PACIFIC INSURANCE COMPANY; 92-LHC-2469
DIRECTOR, OFFICE OF WORKERS 99-LHC-1653
COMPENSATION PROGRAMS,
ORDER
Respondents.

Filed January 5, 2006
Before: Stephen S. Trott, Raymond C. Fisher and
Ronald M. Gould, Circuit Judges.
ORDER
Respondent Arel Price’s application for attorney’s fees and
costs under the Longshore and Harbor Workers’ Compensa-
37
38 STEVEDORING SERVICES v. PRICE
tion Act (“LHWCA”), 33 U.S.C. § 928(a), is denied. This
court lacks jurisdiction to entertain respondent’s application
for fees accrued successfully opposing his employer’s petition
for certiorari.
Although 33 U.S.C. § 928(a) authorizes this court to award
fees “in the successful prosecution” of a claim, § 928(c) states
that a court “may approve an attorney’s fee for the work done
before it by the attorney for the claimant.” (Emphasis added.)
In light of this language, we appear to lack jurisdiction to
award fees to a claimant like Price, because the work
undertaken in successfully opposing his employer’s certiorari
petition was necessarily not done “before” this court.
The Supreme Court’s October 11, 2005 order denying
Price’s fee application “without prejudice to filing in the
United States Court of Appeals for the Ninth Circuit” does not
explicitly delegate jurisdiction to us to grant Price fees. The
only authority we have for interpreting the Court’s order
favorably to Price is Hensley v. Metropolitan Area Transit
Authority, 690 F.2d 1054 (D.C. Cir. 1982), which construed
an analogous order as a jurisdictional predicate allowing a
petitioner to seek fees before that court. Despite our sister cir-
cuit’s opinion and the policies underlying the LHWCA fee
provisos, the plain language of § 928(c) is too restrictive to
allow the leap required under Hensley. Cf. Christensen v.
Stevedoring Services, ___ F.3d ___, 2005 U.S. App. LEXIS
26645, *4-5 (9th Cir. 2005).
An issue of timeliness further complicates Price’s applica-
tion. According to petitioner Stevedoring Services, Ninth Cir-
cuit Rule 39-1.6 requires a claimant to file his fee application
within 14 days of the Supreme Court’s order. Price filed on
November 8, 2005, several weeks after the Court’s October
11 order. Were we to apply Circuit Rule 39-1.6, the motion
would be untimely. On the other hand, Price argues that
Supreme Court Rule 44.1, which allows a party 25 days to file
a petition for rehearing from the date of entry of a judgment
STEVEDORING SERVICES v. PRICE 39
or decision unless the Supreme Court shortens or lengthens
the time, prevented him from filing with us until after that
period expired on November 5, 2005. If so, there might be a
basis for tolling our rule. Despite the parties’ arguments, how-
ever, it is not apparent that either rule governs the timeliness
of such a motion as Price’s: Circuit Rule 39-1.6 refers to peti-
tions for rehearing and rehearing en banc, not petitions for
certiorari; Supreme Court Rule 44.1 governs that forum, not
the Ninth Circuit. Thus, it is unclear what basis we have to
determine the timeliness of Price’s motion.
Although our order has the unfortunate effect of “allow-
[ing] these fees to be charged to the client, a resolution that
appears to run counter to the legislative intent that attorneys’
fees not diminish the recovery of a claimant,” see Hensley,
690 F.2d at 1057, “it is Congress’ role or that of the agency
to address” this state of affairs. Christensen, 2005 U.S. App.
LEXIS 26645, at *9.1
Application for attorney’s fees and costs is DENIED.
1
Regardless of fees, Price is not entitled to costs. 33 U.S.C. § 928(d)
provides only that costs of witnesses’ fees and mileage be awarded to pre-
vailing claimants. And the Federal Rules of Appellate Procedure solely
govern proceedings in the courts of appeals and therefore provide no
authority for us to award costs for proceedings in the Supreme Court. Cf.
Hensley, 690 F.2d at 1059.
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