Van Skike v. Owcp ( 2009 )


Menu:
  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    DAVID VAN SKIKE,                            
    Petitioner,
    v.                              No. 07-73886
    BRB Nos.
    DIRECTOR, OFFICE OF WORKERS’
    COMPENSATION PROGRAMS; CENEX                         06-0904
    HARVEST STATES COOPERATIVE;                           07-0118
    LIBERTY NORTHWEST INSURANCE                          OPINION
    CORP.,
    Respondents.
    
    On Petition for Review of an Order of the
    Benefits Review Board
    Argued and Submitted
    November 17, 2008—Portland, Oregon
    Filed March 2, 2009
    Before: William A. Fletcher and Raymond C. Fisher,
    Circuit Judges, and John M. Roll,* District Judge.
    Opinion by Judge Roll
    *The Honorable John M. Roll, United States District Judge for the Dis-
    trict of Arizona, sitting by designation.
    2365
    2368            VAN SKIKE v. DIRECTOR, OWCP
    COUNSEL
    Charles Robinowitz, Portland, Oregon; Joshua T. Gillelan II
    (argued), Longshore Claimants’ National Law Center, Wash-
    ington, D.C., for the petitioners-appellants.
    John Dudrey, Williams Fredrickson, LLC, Portland, Oregon,
    for the respondents-appellees.
    OPINION
    ROLL, Chief U.S. District Judge:
    This is an appeal from the Benefits Review Board’s
    (“BRB”) affirmance of attorney’s fee awards granted by the
    Administrative Law Judge (“ALJ”) and the District Director
    (“DD”) in a matter arising under the Longshore and Harbor
    Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-
    950. After prevailing on every contested issue on a claim for
    hearing loss benefits, David Van Skike’s attorney, Charles
    Robinowitz, claimed compensation at a market rate of $350
    per hour. The bulk of the litigation on the benefits claim had
    occurred before the ALJ, but the DD resolved several issues
    in the case as well. After reviewing the evidence submitted by
    both parties as to what hourly rate was appropriate, and after
    accounting for the applicable attorney-fee regulation, 20
    C.F.R. § 702.132(a), the ALJ granted Robinowitz a rate of
    VAN SKIKE v. DIRECTOR, OWCP                       2369
    $250 per hour for his time expended litigating before the ALJ;
    based upon the complexity of the issues heard before her, the
    DD granted Robinowitz a rate of $235 per hour for his time
    expended litigating before the DD. The BRB affirmed both
    awards, finding that the ALJ and the DD properly applied
    § 702.132(a) in arriving at their respective hourly rates.
    On appeal Van Skike argues that the fee awards were arbi-
    trary, capricious, and an abuse of discretion, because both the
    ALJ and the DD rejected evidence proffered by Robinowitz
    as to his market rate and instead relied upon past LHWCA
    awards by other ALJs and DDs in arriving at their determina-
    tions. Van Skike further argues that the DD erred in reducing
    his market rate for lack of complexity. Finally, Van Skike
    argues that the DD erred by not awarding Robinowitz an
    enhanced fee for delay in payment. We have jurisdiction
    under 33 U.S.C. § 921(c), and we vacate and remand in part,
    and affirm in part.
    FACTS AND PROCEDURAL HISTORY
    Proceedings Before the ALJ
    Robinowitz argued that a market rate of $350 per hour was
    appropriate given his general experience, his consultation
    with a lawyer who testifies as an attorney’s fee expert, various
    fee awards he and other attorneys had been granted in the
    past, fee agreements he had obtained in non-contingent work,
    and the Laffey1 matrix.2 Respondent Cenex objected that the
    1
    The matrix is derived from the hourly rates allowed by the district
    court in Laffey v. Northwest Airlines, Inc., 
    572 F. Supp. 354
    (D.D.C. 1983).
    2
    More specifically, Robinowitz claimed his normal billing rate was
    $350 per hour based upon the following: (1) he had been a trial lawyer in
    private practice in Portland, Oregon since 1969, had represented over
    1,000 maritime workers under the LHWCA, and had handled over 500
    jury and court trials; (2) he consulted with William Crow, a trial attorney
    who had testified numerous times as an attorney fee expert, and Crow told
    2370               VAN SKIKE v. DIRECTOR, OWCP
    rate was incommensurate with the relevant prevailing market
    rate, and argued that recent LHWCA awards established that
    a figure somewhere between $200 and $235 was appropriate.
    Respondent Cenex also cited a number of contemporaneous
    LHWCA cases in which Robinowitz had been awarded
    between $200 and $250 per hour by ALJs and DDs.
    In his Supplemental Decision and Order Granting Attor-
    ney’s Fees, issued on July 14, 2006, ALJ William Dorsey
    considered and rejected each of Van Skike’s proposed
    grounds for a $350 per hour rate.3 The ALJ discussed the per-
    him that his hourly rate should be approximately $350 per hour in cases
    of this type; (3) in March 2006 the Oregon Court of Appeals awarded him
    an hourly rate of $350 per hour in a discrimination case, and in May 2006
    the Ninth Circuit awarded him $300 per hour for legal services in Chris-
    tensen v. Director, OWCP, Ninth Circuit No. 04-70965; (4) Seattle attor-
    ney William Hochberg, an attorney with less LHWCA experience than
    Robinowitz, received a $300 per hour fee award from the Ninth Circuit in
    2005, and Savannah, Georgia attorney Ralph Lorberbaum, an attorney
    with similar LHWCA experience to Robinowitz, received a $300 per hour
    fee award for an LHWCA claim in 2003; (5) in late 2005 two clients
    retained him at $275 per hour, and in spring 2006 three individual clients
    retained him at $300 per hour; (6) the Board had awarded him $250 per
    hour in each LHWCA case he handled since 2004; and (7) the Laffey
    matrix supported an hourly rate of $400, when adjusted for Portland cost
    of living figures.
    3
    With respect to the attorney fee expert relied upon by Robinowitz, the
    ALJ found that the attorney’s statement was essentially hearsay which car-
    ried with it no substantial guarantee of trustworthiness, and he further
    found little evidence that the alleged expert opinion was based upon a
    knowledge of litigating longshore claims. With respect to the $350 per
    hour award granted by the Oregon Court of Appeals to Robinowitz, the
    ALJ noted that Robinowitz himself admitted that the award was enhanced
    for risk of loss, which the Supreme Court outlawed in City of Burlington
    v. Dague, 
    505 U.S. 557
    (1992); as to the Ninth Circuit’s $300 per hour
    award in Christensen, the ALJ found that as the basis of the award was
    not articulated but rather stated summarily, it did not establish a market
    rate of $350 per hour for Robinowitz. With respect to Seattle attorney Wil-
    liam Hochberg’s $300 per hour award, the ALJ similarly found that, as the
    VAN SKIKE v. DIRECTOR, OWCP                        2371
    tinent law regarding fee litigation, including the lodestar cal-
    culation and the regulation pertaining to attorney’s fees in
    longshore matters, 20 C.F.R. § 702.132(a). The ALJ con-
    cluded that it would be error to award Robinowitz a $350 per
    hour fee award, as he had failed to establish a “normal billing
    rate” under the regulation. The ALJ concluded that the “best
    proxy” for a normal billing rate was $250 per hour, based
    upon what other trial judges and the BRB had granted Robi-
    nowitz in recent LHWCA cases. It is not clear from the record
    whether these cases had been litigated in the Portland area or
    elsewhere.
    Van Skike filed a timely Motion for Reconsideration, along
    with an affidavit and supporting memorandum of law,
    basis of the award was not disclosed and the record was not before the
    ALJ, that example did not establish a market rate of $350 per hour for
    Robinowitz. The ALJ also found that Savannah attorney Ralph Lorber-
    baum’s $300 per hour award did not establish a market rate for Robi-
    nowitz, because the legal services were performed outside Portland, the
    employer in that case, unlike Cenex, failed to prove or even suggest that
    a lower rate should have been granted, and furthermore the trial judge in
    that case had reduced the hours claimed by Lorberbaum, reasoning that
    someone who deserved that rate ought to have completed the tasks more
    expeditiously. With respect to the non-contingent fees Robinowitz claimed
    he obtained from paying clients, the ALJ found that while those fee agree-
    ments “are some evidence of what he can obtain for his services in the
    open market,” they still failed to show “whether he billed for a significant
    portion of his professional services at those rates, or just a few hours of
    his time.” The ALJ concluded that the evidence proffered by Robinowitz
    was “too thin” to establish that $350 per hour was his normal billing rate.
    With respect to previous awards by the BRB to Robinowitz, the ALJ noted
    that no agency adjudicators ever granted him fees approaching $350 per
    hour, and found that awards to him up to that point clustered at “the lower
    to mid $200s per hour.” Finally, with respect to the Laffey matrix, the ALJ
    rejected Van Skike’s proposed method for updating it, noting that the orig-
    inal data were never gathered with statistical rigor, and concluded that
    even if the matrix were updated, it should properly apply only to the com-
    plex federal litigation involved in Laffey, rather than the less complicated
    LHWCA claim under discussion.
    2372            VAN SKIKE v. DIRECTOR, OWCP
    responding to the ALJ’s findings. Robinowitz quantified his
    non-contingent billing, included the Morones Survey of 2004,
    which showed the average fees charged by commercial litiga-
    tors in Portland, and included a copy of the previously cited
    Ninth Circuit’s unpublished Christensen order, awarding him
    attorney’s fees of $300 per hour. In an August 10, 2006 order,
    the ALJ denied the motion, once again concluding that in the
    absence of “meaningful proof of what hourly clients pay Mr.
    Robinowitz, or of what lawyers who are appropriate compara-
    tors charge, the awards judges have made to him in compara-
    ble cases” were appropriately consulted to “estimate the
    ‘normal billing rate’ the regulation looks to.”
    Proceedings Before the DD
    Robinowitz also applied to the DD, Office of Workers’
    Compensation Programs (“OWCP”), for an award which
    entailed a $350 rate. Respondent Cenex once again chal-
    lenged the hourly rate as inconsistent with the relevant pre-
    vailing market rate. DD Karen Staats, after reviewing the
    responses and objections, concluded that given the consider-
    ations contemplated by § 702.132(a), “there is nothing in this
    fee request that justifies a rate of $350.00 for legal services
    provided in this claim at the DD level.” The DD noted that
    $250 per hour was an appropriate rate for work performed
    before the ALJ, but granted Robinowitz only $235 per hour,
    based upon what she deemed to be a lack of complexity in the
    work Robinowitz performed before her.
    Van Skike again filed a timely Motion for Reconsideration,
    reiterating many of the same arguments he made before the
    ALJ. The DD denied the motion on September 19, 2006, stat-
    ing that the fee was approved in accord with the applicable
    statutory and regulatory criteria as well as the circumstances
    of the case.
    VAN SKIKE v. DIRECTOR, OWCP                       2373
    Proceedings Before the BRB
    Van Skike appealed both fee awards to the BRB. The BRB
    found that the ALJ “fully addressed the evidence of hourly
    rates provided by counsel to establish a customary, commu-
    nity market rate, and he provided a rational basis for finding
    such evidence insufficient to establish an hourly rate of
    $350.” The BRB concluded that Robinowitz “failed to dem-
    onstrate either legal error or an abuse of discretion” in the
    ALJ’s reliance on recent fee awards to him by other judges
    and the BRB in arriving at an hourly rate of $250.4 The BRB
    found that the DD “independently based her award of $235
    per hour on the regulatory criteria of Section 702.132(a),”
    compelling the conclusion that there was no abuse of discre-
    tion. Finally, the BRB found that the DD did not err in failing
    to address a possible rate enhancement for delay in payment,
    as “counsel did not seek an hourly rate enhanced for delay.”
    STANDARD OF REVIEW
    The decision of the BRB is reviewed for substantial evi-
    dence and errors of law. Marine Power & Equipment v. Dept.
    of Labor, 
    203 F.3d 664
    , 667 (9th Cir. 2000). The ALJ’s find-
    ings of fact must be accepted by the BRB unless they are con-
    trary to law, irrational, or unsupported by substantial
    evidence. Id.; see also Parks v. Newport News Shipbuilding
    & Dry Dock Co., 32 BRBS 90 (1998). An appellate court
    must conduct an independent review of the administrative
    record to determine whether the BRB adhered to this standard
    of review. Marine 
    Power, 203 F.3d at 667
    . A decision by the
    BRB is supported by substantial evidence if there exists “such
    relevant evidence as a reasonable mind might accept as ade-
    4
    The BRB cited with approval Newport News Shipbuilding & Dry Dock
    Co. v. Brown, 
    376 F.3d 245
    , 251 (4th Cir. 2004), for the proposition that
    “[e]vidence of fee awards in comparable cases is generally sufficient to
    establish the prevailing market rates in the relevant community.” (internal
    quotation marks and citations omitted) (emphasis added).
    2374            VAN SKIKE v. DIRECTOR, OWCP
    quate to support a conclusion.” E.P. Paup Co. v. Dir., OWCP,
    
    999 F.2d 1341
    , 1353 (9th Cir. 1993) (internal quotation marks
    omitted). No special deference is accorded to the BRB’s inter-
    pretation of the LHWCA, but reasonable interpretations are
    respected. Port of Portland v. Dir., OWCP, 
    932 F.2d 836
    , 838
    (9th Cir. 1991).
    DISCUSSION
    Exclusive Reliance on Contemporaneous LHWCA Cases to
    Set a Market Rate
    Van Skike argues on appeal that the ALJ abused his discre-
    tion and committed legal error when he rejected in their
    entirety the market indicators submitted by Robinowitz and
    instead relied on other decisions in previous cases, when the
    judges in those previous cases failed to base their fee awards
    on market rates. Respondent Cenex contends that the ruling
    of the ALJ was predicated upon the applicable regulation,
    § 702.132(a), and that because Van Skike failed to establish
    a “normal billing rate,” the ALJ properly relied on hourly rate
    decisions in other LHWCA cases.
    [1] The Supreme Court has consistently held that reason-
    able fees “are to be calculated according to the prevailing
    market rates in the relevant community, regardless of whether
    plaintiff is represented by private or nonprofit counsel.” Blum
    v. Stenson, 
    465 U.S. 886
    , 895 (1984). The burden is on the fee
    applicant himself “to produce satisfactory evidence” of the
    relevant market rate. 
    Id. at 896
    n.11. Case law construing rea-
    sonable fees “applies uniformly” to fee-shifting statutes such
    as the LHWCA, City of Burlington v. Dague, 
    505 U.S. 557
    ,
    562 (1992), and, as with other federal fee-shifting statutes, the
    use of the lodestar method (number of hours reasonably
    expended multiplied by reasonable hourly rate) in calculating
    attorney’s fees under the LHWCA is proper. See Tahara v.
    Matson Terminals, Inc., 
    511 F.3d 950
    , 955 (9th Cir. 2007).
    VAN SKIKE v. DIRECTOR, OWCP               2375
    [2] The relevant community is generally defined as “the
    forum in which the district court sits.” Barjon v. Dalton, 
    132 F.3d 496
    , 500 (9th Cir. 1997). In Christensen v. Price, Ninth
    Circuit No. 07-70297, filed today, we note the problems
    inherent in narrowly defining the relevant community in
    LHWCA cases strictly in terms of what other ALJs, DDs, and
    the BRB have awarded fee claimants in contemporaneous
    cases. In doing so we reject the Fourth Circuit’s overly cir-
    cumscribed definition of “relevant community” advanced in
    Brown, relied upon by the BRB in the instant case in affirm-
    ing the awards granted by the ALJ and the DD. First, exclu-
    sive reliance on contemporaneous LHWCA cases does not
    constitute an appropriate determination of a market rate as
    contemplated by relevant case law. In Moreno v. City of Sac-
    ramento, 
    534 F.3d 1106
    , 1115 (9th Cir. 2008), this court
    recently found unreasonable a district court’s award of attor-
    ney’s fees pursuant to 42 U.S.C. § 1988, because the district
    court had applied “what appear[ed] to be a de facto policy of
    awarding a rate of $250 an hour to civil rights cases.” Such
    a policy ignores current market conditions while deferring to
    historical market rates, which is clearly not contemplated by
    Blum. Exclusive reliance on contemporaneous LHWCA cases
    also overlooks the fact that LHWCA attorneys are forbidden
    by law from, and face criminal penalties for, negotiating or
    entering into private fee agreements with their clients. See 33
    U.S.C. § 928(e). The lack of a private LHWCA market does
    not absolve courts of the duty to arrive at a market rate. As
    we note today in Christensen, the relevant community must
    necessarily be defined more broadly than the LHWCA bar.
    Finally, exclusive reliance on contemporaneous LHWCA
    cases is contrary to the rationale behind fee-shifting statutes
    in general. In Camacho v. Bridgeport Financial, Inc., in
    which an attorney’s fee award in a Fair Debt Collection Prac-
    tices Act (“FDCPA”) case was vacated because the district
    court failed to make findings regarding what constituted the
    relevant community or an appropriate market rate, we reiter-
    ated that “[i]n order to encourage able counsel to undertake
    FDCPA cases, as congress intended, it is necessary that coun-
    2376             VAN SKIKE v. DIRECTOR, OWCP
    sel be awarded fees commensurate with those which they
    could obtain by taking other types of cases.” 
    523 F.3d 973
    ,
    981 (9th Cir. 2008) (internal quotation marks omitted and
    alteration in original). Arbitrarily holding the line at past
    court-generated fee awards does not respect the congressional
    intent animating fee-shifting statutes. See Student Pub. Inter-
    est Research Group of N.J. v. AT&T Bell Labs., 
    842 F.2d 1436
    , 1446 (3d Cir. 1988) (“Courts that try to establish public
    interest market rates by looking to the going rate for public
    interest work therefore do not examine an independently oper-
    ating market governed by supply and demand, but rather
    recast fee awards made by previous courts into ‘market’ rates
    . . . [thereby] . . . perpetuat[ing] a court-established rate as a
    ‘market’ when that rate in fact bears no necessary relationship
    to the underlying purpose of relying on the marketplace: to
    calculate a reasonable fee sufficient to attract competent coun-
    sel.”).
    [3] As stated in Christensen, the same concerns expressed
    in Camacho and Moreno as to other fee-shifting cases apply
    with equal force to LHWCA cases. It is true that the remand
    for the fee determinations in Christensen occurred largely
    because the BRB did not adequately justify its awards. The
    instant case is distinguishable from Christensen in that both
    the ALJ and the DD here provided, for the most part, detailed
    analyses of the evidence proffered by Van Skike to establish
    a prevailing market rate. The exclusive reliance by the ALJ
    and the DD on contemporaneous LHWCA cases remains
    problematic, however, given the guidance of Camacho,
    Moreno, and now Christensen. The relevant community must
    be defined “more broadly than simply fee awards under the
    LHWCA.” Christensen, Ninth Circuit No. 07-70297 at 9.
    Finally, Christensen states that the failure of a fee applicant
    to carry his burden under Blum as to the establishment of a
    relevant market may justify courts in looking to what other
    ALJs and the BRB have awarded a fee applicant in contempo-
    raneous LHWCA cases, but it also states that if the reasons
    given by a court for such a failure “would not have been
    VAN SKIKE v. DIRECTOR, OWCP                  2377
    anticipated by a reasonable fee applicant,” “it may be appro-
    priate . . . to allow an applicant to cure its failure to carry the
    burden.” 
    Id. at 10.
    [4] Under the circumstances presented by this case, particu-
    larly considering the detailed justification proffered by Van
    Skike to establish a relevant market rate, it is appropriate to
    vacate the fee awards arrived at by the ALJ and the DD and
    to remand the case for reconsideration of Van Skike’s pro-
    posed rate in light of the guidance provided by Christensen
    and this opinion. The ALJ and the DD may then decide
    whether it is proper to award a different fee or to allow Van
    Skike to modify his fee request in an attempt to cure what
    they originally deemed a failure to establish a market rate.
    Reduction of Hourly Rate Based Upon Complexity of Task
    Van Skike argues on appeal that the DD committed legal
    error when she awarded a lower hourly rate than the ALJ due
    to what she deemed to be a lack of complexity of the issues
    heard before her. He argues that such a practice is inconsistent
    with all other fee-shifting regimes Congress has authorized
    and further contends that Blum forbids the DD from consider-
    ing the complexity of the legal issues involved in computing
    an hourly rate, as opposed to considering that factor in com-
    puting the number of hours allowed. Respondent Cenex con-
    tends that the DD properly applied § 702.132(a) and that the
    BRB properly affirmed her fee determination.
    [5] Attorney’s fee awards under the LHWCA are to be
    “reasonably commensurate with the necessary work done and
    shall take into account the quality of the representation, the
    complexity of the legal issues involved, and the amount of
    benefits awarded.” 20 C.F.R. § 702.132(a). While the regula-
    tion does not expressly mandate the use of the traditional
    lodestar method, it does permit the consideration of lodestar
    factors not explicitly listed, and it also sets forth at least four
    of the eleven factors to be considered. See Van Gerwen v.
    2378                VAN SKIKE v. DIRECTOR, OWCP
    Guarantee Mutual Life Co., 
    214 F.3d 1041
    , 1045 n.2 (9th Cir.
    2000) (listing the lodestar factors). The Supreme Court has
    stated that the lodestar is the “guiding light” of its fee-shifting
    jurisprudence, a standard that is the fundamental starting point
    in determining a reasonable attorney’s fee. 
    Dague, 505 U.S. at 562
    . Moreover, in the instant case the DD used the lodestar
    method in calculating the fee award. In doing so, however,
    she deviated from the admonition that the reasonable hourly
    rate is generally determined based upon the prevailing rate in
    the relevant community, rather than upon the complexity of
    the issues, which should be reflected in the reasonable number
    of hours. See 
    Blum, 465 U.S. at 895
    . Here, as in Blum, the
    “novelty and complexity of the issues presumably were fully
    reflected in the number of billable hours recorded by coun-
    sel.” 
    Id. at 898.
    Therefore, “[n]either complexity nor novelty
    of the issues . . . is an appropriate factor in determining
    whether to [decrease] the basic fee award.” 
    Id. at 898-99.5
    [6] A formulaic recitation of the regulations pertaining to
    LHWCA fee awards is insufficient to absolve the DD from
    compliance with relevant case law outlining the lodestar
    methodology. Reducing an hourly rate based upon a lack of
    complexity and the routine nature of the work is inconsistent
    with other fee-shifting regimes Congress has adopted or the
    Supreme Court has approved. 20 C.F.R. § 702.132 does not
    specifically require that the reasonable rate determination turn
    upon the complexity of the issues, so it was incumbent upon
    the DD to consistently apply the prevailing lodestar methodol-
    ogy, which accounts for complexity in the hours and not in
    the rate computation. It is appropriate, therefore, to vacate the
    DD’s determination to reduce the fee award based upon lack
    of complexity and to remand to her so that she can recalculate
    the award in light of the foregoing guidance.
    5
    It would be illogical and burdensome under any fee-shifting statute, for
    instance, to attempt to distinguish between an attorney’s hourly rate for a
    15-minute phone call with the clerk’s office concerning a technical proce-
    dural issue and a 15-minute phone call with a client providing expert sub-
    stantive advice based on how the procedural issue was resolved.
    VAN SKIKE v. DIRECTOR, OWCP                2379
    Delay Enhancement
    Van Skike argues on appeal that the DD committed legal
    error when she failed to enhance the fee award to Robinowitz
    for delay in payment. Respondent Cenex contends that since
    Van Skike did not raise this issue before the DD, it is not
    reviewable by the panel.
    [7] A review of the administrative record reveals that Van
    Skike never raised the delay enhancement argument either in
    his initial application for fees to the DD or in his motion for
    reconsideration. He did eventually brief the issue to the BRB,
    but the BRB declined to consider it because it found he raised
    it for the first time on appeal. Van Skike contends in his
    Reply Brief that his mere request for a $350 per hour current
    market rate was sufficient not only to raise the delay issue but
    to preserve it on appeal. It is clear from the fee affidavit and
    from the orders drafted by both the ALJ and the DD that the
    common issue under consideration was not delay but whether
    Robinowitz’s $350 per hour request represented his normal
    billing rate or the current prevailing market rate. Because Van
    Skike never effectively raised the prospect of delay, the BRB
    was not required to reach the issue. See Johnson v. Dir.,
    OWCP, 
    183 F.3d 1169
    , 1171 (9th Cir. 1999) (holding in
    LHWCA case that, unless necessary to prevent manifest
    injustice, Ninth Circuit will not review issue not raised
    below); Smiley v. Dir., OWCP, 
    984 F.2d 278
    , 281 (9th Cir.
    1992) (stating that Ninth Circuit will reach an issue of law of
    which the ALJ and the BRB were aware and which BRB
    promised to consider; reaffirming that the standard for
    whether issue was properly raised below is that argument
    must be sufficient for trial court to rule on it); Perkins v.
    Marine Terminals Corp., 
    673 F.2d 1097
    , 1100 (9th Cir. 1982)
    (holding that BRB lacked authority to raise LHWCA cover-
    age issue sua sponte when issue was not previously raised
    before ALJ). The BRB’s decision was therefore proper, given
    the factual circumstances and the applicable law.
    2380          VAN SKIKE v. DIRECTOR, OWCP
    AFFIRMED IN PART, VACATED AND REMANDED
    IN PART. Each party shall bear its own costs on appeal.