Stevedoring Services of America, Inc. v. Director, Office of Workers Compensation Programs ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 01 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
STEVEDORING SERVICES OF No. 10-73574
AMERICA, INC.; HOMEPORT
INSURANCE COMPANY, OWCP No. 03-0302
Petitioners,
MEMORANDUM*
v.
DIRECTOR, OFFICE OF WORKERS
COMPENSATION PROGRAMS; BRUCE
W. CHRISTENSEN,
Respondents.
On Petition for Review of Orders of the
Benefits Review Board
Submitted July 13, 2011**
Portland, Oregon
Before: PREGERSON, WARDLAW, and M. SMITH, Circuit Judges.
Petitioners Stevedoring Services of America, Inc. and Homeport Insurance
Company appeal several orders of the Benefits Review Board of the United States
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Department of Labor (the Board) that awarded attorney’s fees to Respondent Bruce
Christensen and his attorney Charles Robinowitz. Because the parties are familiar
with the factual and procedural history of this case, including numerous prior appeals
to this court, Christensen v. Stevedoring Servs. of Am., Inc., 430 F.3d 1032 (9th Cir.
2005) (Christensen I); Christensen v. Dir., OWCP, 171 Fed. App’x 162 (9th Cir. Mar.
15, 2006) (Christensen II); Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049(9th Cir. 2009) (Christensen III), we repeat only those facts necessary to resolve the
issues raised in this appeal. We have jurisdiction under 33 U.S.C. § 921(c), and we
affirm.
Petitioners’ contention that the Supreme Court’s decision in Perdue v. Kenny
A., 130 S. Ct. 1662 (2010), alters our precedent in Christensen III lacks merit. No
language in Perdue disturbs Christensen III’s holding that the Board should use
“prevailing market rates in the relevant community” based on the lawyer’s practice
area, skill, and experience. See Christensen III, 557 F.3d at 1053 (rates should be “in
line with those prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience and reputation”) (quoting Blum v. Stetson,
465 U.S. 886, 896 n.11 (1984)); see also B&G Mining, Inc. v. Dir., OWCP, 522 F.3d
657, 663 (6th Cir. 2008) (“To arrive at a reasonable hourly rate, courts use as a
guideline the prevailing market rate, defined as the rate that lawyers of comparable
skill and experience can reasonably expect to command within the venue of the court
2
of record.”). Perdue addressed the “rare circumstances” in which a properly
calculated lodestar may nevertheless be “enhanced,” and that simply was not an issue
in this litigation. 130 S. Ct. at 1669, 1673.
Nor did the Board abuse its discretion in awarding fees from the Oregon Bar
Survey based on the average rates of general civil litigation attorneys. A reasonable
attorney’s fee must be based on the relevant community and prevailing market rate.
Christensen III, 557 F.3d at 1053–54. The Board reasonably concluded that the
relevant community was Portland, Oregon and that insurance defense rates were not
“market,” especially in light of the volume discounts involved in such work. Each
factor the Board relied on was corroborated by evidence in the record in the form of
affidavits and surveys. See United Steelworkers of Am. v. Phelps Dodge Corp., 896
F.2d 403, 407 (9th Cir. 1990) (“Affidavits of the plaintiffs’ attorney[s] and other
attorneys regarding prevailing fees in the community, and rate determinations in other
cases . . . are satisfactory evidence of the prevailing market rate.”).
We have considered Petitioners’ remaining arguments and hold that they do not
alter the foregoing analysis. Accordingly, the orders of the Benefits Review Board are
AFFIRMED.
3