Ladonna Seachris v. Brady-Hamilton Stevedore Co.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LADONNA E. SEACHRIS, No. 18-71807
Petitioner,
BRB No.
v. 17-0581
BRADY-HAMILTON STEVEDORE
COMPANY; SAIF CORPORATION; OPINION
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted September 3, 2020
Seattle, Washington
Filed April 19, 2021
Before: A. Wallace Tashima, Jay S. Bybee, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Tashima
2 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
SUMMARY*
Longshore Act / Attorney’s Fees
The panel granted a petition for review of a decision of
the Benefits Review Board (“BRB”) that upheld an
administrative law judge (“ALJ”)’s award of attorney’s fees
and costs under the Longshore and Harbor Workers’
Compensation Act.
Petitioner filed a claim for death benefits under the
Longshore Act, and was represented in the proceedings by
attorney Charles Robinowitz. An ALJ granted petitioner’s
claim for benefits, and Robinowitz requested “a reasonable
attorney’s fee” under 33 U.S.C. § 928(a). Robinowitz sought
an hourly rate of $450, but the BRB awarded him a rate of
$349.85 per hour.
The panel held that the ALJ erred by concluding that
Robinowitz failed to satisfy his initial burden of producing
evidence of a prevailing market rate for his services.
Robinowitz presented substantial evidence that his requested
rate of $450 an hour, in 2016, was in line with the prevailing
rate in the community for similar services by lawyers of
comparable skill, experience, and reputation. The panel
concluded that the ALJ’s contrary conclusion was not
supported by substantial evidence, and the ALJ’s concerns at
most went to the weight of the evidence, not its sufficiency.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 3
The panel held that the ALJ erred by rejecting
Robinowitz’s evidence of prevailing market rates as outdated
because the conclusion was not supported by substantial
evidence. Evidence of historical market conditions is
relevant evidence of current market conditions, and reliance
on such evidence is particularly appropriate when it is the
most current information available.
The panel held that the ALJ erred by rejecting
Robinowitz’s evidence of commercial litigation rates. First,
the ALJ appeared to have conflated commercial litigation and
complex litigation. Second, there was no discernable rational
basis for the ALJ’s selective concerns about the differences
between formal and informal litigation.
The panel held that the ALJ erred by rejecting
Robinowitz’s evidence from the 2012 Oregon State Bar
Survey of hourly rates. The panel held further that the ALJ’s
decision to place Robinowitz within the 75th percentile of
attorneys in the plaintiff civil litigation and general practice
areas under the 2012 Oregon State Bar Survey must be
vacated because that decision appeared to have been
influenced by an improper factor, namely, the ALJ’s
unwarranted irritation with a brief that Robinowitz filed on
remand from this court.
The panel held that the ALJ’s decision to include the
“general” practice area in her analysis was not supported by
substantial evidence. There was abundant evidence in the
record to show that Robinowitz was a specialist, with
significant experience and success in handling Longshore Act
cases.
4 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
The panel concluded that the ALJ and the BRB
committed legal error in determining the hourly rate, and that
the ALJ’s determination of the hourly rate was not supported
by substantial evidence. The panel granted the petition for
review on this issue, and remanded for further proceedings.
The panel held that the ALJ erred by awarding
Robinowitz’s paralegal a rate of $150 per hour rather than
$165 per hour as requested. First, the ALJ erred by relying
almost exclusively on the rates awarded by other ALJs.
Second, the ALJ’s reliance on the district court’s reliance on
the district court’s awards was flawed because the decisions
upon which the ALJ relied set paralegal rates based on survey
data pertaining to the western United States as a whole, rather
than the relevant Portland community. Robinowitz provided
the only record evidence of market rates for Portland
paralegals. The panel granted the petition for review on this
issue, and directed that the BRB on remand award
Robinowitz’s paralegal a rate of $165 per hour.
The ALJ on remand ordered petitioner to file a
supplemental brief addressing matters that this court had
already decided. Rather than addressing the issues called for
in the ALJ’s supplemental briefing order, Robinowitz used
the brief to take issue with the ALJ’s interpretation of this
court’s decision. The panel held that the ALJ improperly
reduced Robinowitz’s fees for preparing the supplemental
brief. The panel held that the ALJ’s anger over Robinowitz’s
position on remand permeated the entire fee order, and it
appeared that the ALJ improperly reduced Robinowitz’s fees
for preparing the supplemental brief as a sanction. The panel
granted the petition for review on this issue.
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 5
The panel held that the ALJ and the BRB erred by holding
that the Longshore Act did not permit an award of interest on
costs to account for delay in payment. The panel granted the
petition for review on this issue, and directed the BRB on
remand to determine whether an award of interest on costs
was appropriate because of the exceptionally protracted
period that this case has been pending.
Finally, the panel held that the tone of the ALJ’s decision
and the manner in which the ALJ evaluated the evidence
suggested that the ALJ may not be able to provide
Robinowitz with a fair and impartial hearing on remand.
Accordingly, the panel sua sponte directed that the BRB
reassign this matter to a different ALJ on remand to avoid the
appearance of impropriety.
COUNSEL
Joshua T. Gillelan II (argued), Longshore Claimants’
National Law Center, Mitchellville, Maryland; Charles
Robinowitz, Portland, Oregon; for Petitioner.
Michael J. Godfrey (argued), Sather Byerly & Holloway
LLP, Portland, Oregon, for Respondent.
6 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
OPINION
TASHIMA, Circuit Judge:
This is Ladonna Seachris’ (“Seachris”) petition to review
a decision of the Benefits Review Board (“BRB”) upholding
a decision of an administrative law judge (“ALJ”) awarding
Seachris attorney’s fees and costs under the Longshore and
Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C.
§§ 901–50. We hold that aspects of the decisions under
review constitute legal error and are not supported by
substantial evidence. Specifically, we hold that the ALJ
improperly rejected the fee applicant’s evidence of prevailing
market rates, erroneously established a paralegal’s hourly rate
by reference to other ALJ decisions rather than evidence of
prevailing market rates in the relevant community, and
improperly denied fees for hours reasonably expended. We
further hold that the ALJ and the BRB erred in concluding
that the LHWCA does not authorize an award of interest on
costs. Accordingly, we grant the petition for review and
remand to the BRB for further proceedings. We also order
the BRB to reassign this matter to a different ALJ on remand.
I. BACKGROUND
A. Robinowitz’s Fee Application
In 2006, Seachris, widow of Cloyd E. Seachris,1 filed a
claim for death benefits under the LHWCA. Seachris was
represented in the proceedings by attorney Charles
Robinowitz. The proceedings were heard by an ALJ in the
U.S. Department of Labor’s Office of Administrative Law
1
Cloyd Seachris died on October 10, 2005.
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 7
Judges (“OALJ”). After the ALJ denied the claim and the
BRB affirmed, we granted a petition for review and
remanded. Seachris v. Dir., OWCP, 538 F. App’x 813 (9th
Cir. 2013). On remand, in April 2016, the ALJ granted
Seachris’ claim for benefits.
Seachris’ successful prosecution of her claim entitled
Robinowitz to an award of “a reasonable attorney’s fee.”
33 U.S.C. § 928(a).2 Accordingly, in May 2016, ten years
after the claim was first filed, Robinowitz filed a Declaration
of Attorney Fees and Costs seeking an award of $50,616.75
in attorney’s fees and $5,413.95 in costs for work performed
between 2007 and 2016.
Robinowitz requested an hourly rate of $450 for his own
legal services. In support of this rate, Robinowitz’s
2
Section 928(a) states:
If the employer or carrier declines to pay any
compensation on or before the thirtieth day after
receiving written notice of a claim for compensation
having been filed from the deputy commissioner, on the
ground that there is no liability for compensation within
the provisions of this chapter and the person seeking
benefits shall thereafter have utilized the services of an
attorney at law in the successful prosecution of his
claim, there shall be awarded, in addition to the award
of compensation, in a compensation order, a reasonable
attorney’s fee against the employer or carrier in an
amount approved by the deputy commissioner, Board,
or court, as the case may be, which shall be paid
directly by the employer or carrier to the attorney for
the claimant in a lump sum after the compensation
order becomes final.
33 U.S.C. § 928(a).
8 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
declaration stated that he had over 45 years’ experience as an
attorney; that his “legal practice emphasizes serious tort and
wrongful death claims and workers’ compensation claims
under the [LHWCA]”; that he has “tried over 200 jury trials,
[tried] over 350 court trials, and . . . argued over
150 appeals”; that he has “instructed at [Continuing Legal
Education] programs on trial practice and the [LHWCA]”;
and that “other lawyers regularly consult [him] for advice on
issues under the [LHWCA] as well as on trial practice in civil
cases.” Robinowitz stated that he has handled “commercial
litigation cases,” including an Employee Retirement Income
Security Act (“ERISA”) case and “a large consumer fraud
case with over 140 plaintiffs.” He further stated that
“Longshore cases involve very similar services to these cases.
They involve careful review of documents, meeting[]
frequently with both expert and lay witnesses, detailed
calculation of losses and specific legal research, which is
typical trial preparation.”
Robinowitz also submitted a 2009 declaration from
Portland practitioner Phil Goldsmith. Goldsmith stated that
he specializes in class action and financial institution
litigation, that most of his compensation comes from court-
awarded attorney’s fees, that he carefully monitors evidence
of local market rates, that he periodically testifies as an expert
witness on attorney’s fees, and that he has known Robinowitz
for many years. Goldsmith stated that “the $400 hourly rate
requested” by Robinowitz at that time was “slightly below
market rates in Portland for lawyers of comparable skill,
experience and reputation.” Goldsmith relied in part on a
survey of commercial litigation rates compiled by Serena
Morones (“Morones Survey”) in 2008. According to the
Morones Survey, “the average rate [as of January 1, 2008] for
lawyers with experience comparable to Mr. Robinowitz was
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 9
$446 an hour.” Goldsmith also noted that “attorneys that
specialize in a specific niche . . . charge a higher rate,” and
that Robinowitz had “substantial expertise” and experience in
LHWCA cases.
Robinowitz also submitted a 2009 affidavit from David
Markowitz, another Portland practitioner. Markowitz, the
state chairperson of the American College of Trial Lawyers,
recounted his experience on the subject of attorney’s fees,
including his extensive work as an expert witness, arbitrator,
and lecturer. Markowitz stated that Robinowitz had a
reputation as “a very experienced and accomplished litigator
who is able to provide highly qualified representation in
[LHWCA] cases as well as a wide variety of business and tort
litigation.” Markowitz opined that Robinowitz’s “attorney
fee rate should be set at or above the average rate for
attorneys with 30 or more years experience as shown in the
Morones Survey of Commercial Litigation Rates,” equating
to a rate of $404 per hour in 2009. He opined that
these amounts reflect the prevailing market
rates in Oregon for an attorney of
Mr. Robinowitz’s experience and reputation
and are rates commensurate with those which
he could obtain by taking other types of cases
which he is qualified to handle. I have
observed from my work in over 100 attorney
fee matters as an expert, arbitrator, mediator
and attorney in Oregon that these rates are in
line with those prevailing in Oregon for
similar services by lawyers of reasonably
comparable experience and reputation.
10 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
Robinowitz also submitted the 2010 iteration of the
Morones Survey. This survey, which includes information
from Portland law firms having more than five attorneys
specializing in commercial litigation, stated that attorneys
with 30 or more years of experience charged an average of
$431 per hour as of January 2010.
Robinowitz also submitted portions of the Oregon State
Bar 2012 Economic Survey (“2012 OSB Survey”). For
Portland attorneys with over 30 years of experience, the 2012
OSB Survey reported a median rate of $350 per hour. For
attorneys in the 75th percentile, the rate was $400 per hour;
for those in the 95th percentile, it was $500 per hour.
Robinowitz also submitted a 2014 decision by the Ninth
Circuit Appellate Commissioner awarding him fees at a rate
of $425 per hour for his services in this court. See Petitt v.
Sause Brothers, No. 12-70740 (9th Cir. Sept. 24, 2014).3 The
Appellate Commissioner looked to the 2012 OSB Survey,
which, as noted, reported an hourly rate of $400 for the top
25 percent of Portland attorneys with more than 30 years’
experience. The Appellate Commissioner rejected the
respondents’ contention that the court should instead rely on
the OSB Survey’s rates for specific practice areas
encompassing “Portland plaintiff-side civil litigators.
3
The Appellate Commissioner issued the Petitt decision pursuant to
Ninth Circuit Rule 39-1.9. Such decisions do not constitute circuit
precedent but may be treated as persuasive authority. See Orn v. Astrue,
511 F.3d 1217, 1220 (9th Cir. 2008) (noting the Appellate
Commissioner’s “substantial experience and expertise in ruling on
appellate fee requests”).
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 11
Robinowitz also submitted a 2014 decision by the BRB
awarding him a rate of $413 per hour for work performed in
2013 and $420 per hour for work performed in 2014. Petitt
v. Sause Brothers, No. 11-0351 (Ben. Rev. Bd. Apr. 29,
2014).4 The BRB relied on the 2012 OSB Survey. Rather
than looking at the survey’s rates for Portland attorneys with
at least 30 years’ experience, however, the BRB looked at the
survey’s rates for Portland attorneys practicing in two of the
survey’s 14 practice areas: plaintiff civil litigation personal
injury and plaintiff civil litigation non-personal injury. The
BRB placed Robinowitz in the top five percent of lawyers
practicing in these areas (the 95th percentile), averaged the
rates applicable to these two practice areas, and adjusted the
resulting rates for inflation, producing an hourly rate of $413
for work performed in 2013. The BRB adopted the 95th
percentile rate because, as the BRB had noted in its prior
decision in Christensen v. Stevedore Services of America, No.
03-0302, 2010 WL 2256182 (Ben. Rev. Bd. May 13, 2010),
Robinowitz had “40 years of experience and demonstrated
skill in the successful representation of many claimants
before the Board and the Ninth Circuit.”
Robinowitz’s fee declaration requested an hourly rate of
$165 for a paralegal in his office with over 20 years’
experience. In support of this rate, Robinowitz relied on the
2009 Goldsmith declaration, which opined that the $150
hourly rate Robinowitz requested at that time was “consistent
with the rates prevailing in the community.” Goldsmith
relied on the 2008 Morones Survey of Portland commercial
litigation firms, which stated that the average rate for
4
See also Petitt v. Sause Brothers, No. 13-0330, 2014 WL 993104,
at *4 (Ben. Rev. Bd. Feb. 26, 2014) (awarding Robinowitz a rate of $413
per hour for work performed in 2013).
12 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
paralegals at that time was $154 per hour. Robinowitz also
relied on the Ninth Circuit Appellate Commissioner’s 2014
decision in Petitt, which awarded Robinowitz’s paralegal a
rate of $165 an hour for work performed in 2013. The
Appellate Commissioner concluded that this rate was “in line
with currently prevailing market rates for Portland paralegal
work.”
Finally, Robinowitz requested an award of interest on
costs to account for delay in payment, noting that Seachris
had incurred the litigation expenses in 2011, five years before
Robinowitz filed his request for fees and costs.
B. Respondents’ Objections
In their objections to Robinowitz’s fee declaration,
Respondents argued that Robinowitz should be awarded fees
at a rate of $358 per hour rather than the $450 he requested.
Respondents derived this figure from the practice-area chart
in the 2012 OSB Survey rather than the years-of-experience
chart. Specifically, Respondents selected the rates applicable
to Portland attorneys practicing in two of the survey’s
14 practice areas—plaintiff civil litigation personal injury and
plaintiff civil litigation non-personal injury. For Portland
attorneys in the 75th percentile, the 2012 OSB Survey’s rates
for these practice areas were $350 and $300 respectively.
Respondents averaged these two rates, adjusted the 2011 rates
for inflation, and arrived at a proposed rate of $358 per hour.
Respondents acknowledged the Ninth Circuit Appellate
Commissioner and BRB decisions awarding Robinowitz rates
of $425 and $420 per hour. They argued, however, that these
rates should not control, because “appellate practice involves
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 13
a different set of skills than is required to practice before the
OALJ.”
Relying on Christensen v. Stevedoring Services of
America, No. 03-0302, 2010 WL 2256182 (Ben. Rev. Bd.
May 13, 2010), Respondents also contended that
Robinowitz’s other evidence of prevailing market rates—the
Goldsmith declaration, the Markowitz affidavit, and the
Morones Survey—were “not relevant,” because “services
provided by attorneys with a business litigation practice” are
not “comparable” to services performed under the LHWCA.
Finally, Respondents argued that Robinowitz’s paralegal
should be awarded a rate of $150 per hour rather than the
$165 requested. They argued that the Morones Survey was
inadequate to support Robinowitz’s requested rate because it
was “applicable to business litigation.” They further argued
that, “[i]n other fee decisions involving Mr. Robinowitz, with
similar documents and statements offered in support of the
requested rate, the paralegal was often awarded $150.00.
C. The ALJ’s Fee Decision
The ALJ addressed Robinowitz’s request for attorney’s
fees and costs in a January 2017 order. The ALJ awarded
Robinowitz $36,560.50 in attorney’s fees and awarded
Seachris $5,413.95 in costs.
The ALJ devoted the majority of her decision to the
question of Robinowitz’s hourly rate. As a threshold matter,
the ALJ concluded that Robinowitz had failed to satisfy his
initial burden of producing evidence of a prevailing market
rate for his services. First, the ALJ declined to give any
weight to the Goldsmith declaration, the Markowitz affidavit,
14 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
and the Morones Survey because (1) the information
contained in this evidence was “too old to be very useful” and
“simply too dated to be convincing,” and (2) the information
pertained to rates charged by lawyers handling commercial
litigation, which “involve[s] different skills and expertise”
than LHWCA work.
Second, the ALJ declined to give any weight to the
portion of the 2012 OSB Survey that Robinowitz submitted,
faulting him for submitting only part of the report and for
relying on the rates for all Portland practitioners, based on
years of experience, rather than relying on the rates charged
by Portland attorneys in individual practice areas involving
“the sort of trial-level skills needed in Longshore practice.”
Third, the ALJ declined to give weight to the BRB and
Ninth Circuit Appellate Commissioner’s decisions awarding
Robinowitz rates of $420 and $425 respectively for appellate
work. Echoing Respondents, the ALJ reasoned that this
evidence was “not convincing,” because “[a]ppellate-level
Longshore Act work . . . requires skills and expertise that are
different than those required to effectively litigate at OALJ.”
In sum, the ALJ rejected every piece of evidence offered
by Robinowitz in support of his requested hourly rate.
Having done so, the ALJ concluded that Robinowitz “has
failed to carry his burden of establishing entitlement to the
rates claimed in this case.” The ALJ then proceeded to
determine a reasonable hourly rate independently of the
evidence offered by Robinowitz.
In doing so, the ALJ relied almost exclusively on the
2012 OSB Survey. But rather than relying on the OSB
Survey rates based on years of experience, as Robinowitz had
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 15
proposed, the ALJ relied on the survey’s rates applicable to
particular practice areas that the ALJ deemed appropriate
comparators to LHWCA work. Specifically, the ALJ
included three of the survey’s 14 practice areas in her
analysis: plaintiff civil litigation personal injury, plaintiff
civil litigation non-personal injury, and general practice—the
practice area that applies to attorneys who devote less than
50 percent of their time to any one practice area. The ALJ
calculated a weighted average of these three practice areas,
concluded that Robinowitz fell within the 75th percentile (not
the 95th percentile, as Robinowitz advocated), and adjusted
the resulting rate to account for inflation, producing a rate of
$341.92 per hour—far less than the $450 rate proposed by
Robinowitz and less even than the $358 rate proposed by
Respondents.
The ALJ awarded Robinowitz’s paralegal a rate of $150.
The ALJ based this rate on other ALJ decisions and federal
district court decisions in the District of Oregon.
The ALJ also rejected Robinowitz’s request for an award
of interest on costs. Citing Hobbs v. Director, Office of
Workers Compensation Programs, 820 F.2d 1528 (9th Cir.
1987), abrogated on other grounds as stated in Anderson v.
Dir., OWCP, 91 F.3d 1322, 1324 (9th Cir. 1996), the ALJ
ruled that “interest may not be awarded on an award of . . .
costs under the Longshore Act.”
D. The BRB’s Decision
On appeal, the BRB concluded that the ALJ had
“addressed, and rationally rejected, the evidence submitted by
counsel in support of his requested hourly rate of $450.” In
particular, the BRB concluded that the ALJ properly “rejected
16 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
the Goldsmith declaration, the Markowitz declaration, and the
Morones Survey because they are outdated and refer to
commercial/business litigation, which the administrative law
judge found is not work similar to that practiced by counsel.”
The BRB also concluded that the “hourly rate awarded
represents a reasonable weighted average of the rates
established by the 2012 [OSB Survey] in the three practice
areas the administrative law judge rationally found to be
relevant.” After correcting an error by the ALJ in adjusting
the 2012 OSB Survey rates for inflation, the BRB awarded
Robinowitz a rate of $349.85 per hour. The BRB also agreed
with the ALJ that the LHWCA “does not permit the paying of
interest on costs” and sustained the other challenged aspects
of the ALJ’s fee order.
Seachris timely petitioned for review.
II. STANDARD OF REVIEW
“In LHWCA proceedings, the [Benefits Review] Board
must accept the ALJ’s findings unless they are contrary to
law, irrational, or unsupported by substantial evidence.” Port
of Portland v. Dir., OWCP, 932 F.2d 836, 838 (9th Cir.
1991). “We review the Board’s decisions for errors of law
and adherence to the substantial evidence standard.” Id.Accordingly, “[w]e independently evaluate the evidence in
the administrative record to ensure the BRB adhered to the
correct standard of review.” Shirrod v. Dir., OWCP,
809 F.3d 1082, 1086 (9th Cir. 2015). “Because the Board is
not a policymaking body, we accord no special deference to
its interpretation of the LHWCA.” Port of Portland,
932 F.2d at 838.
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 17
III. DISCUSSION
A. Robinowitz’s Hourly Rate
We begin by reviewing the ALJ’s and BRB’s decisions
regarding Robinowitz’s hourly rate.
“The ‘lodestar method’ is the fundamental starting point
in determining a ‘reasonable attorney’s fee,’ and this is true
as to computation of attorney’s fees under § 928(a) of the
LHWCA.” Christensen v. Stevedoring Servs. of Am.,
557 F.3d 1049, 1053 (9th Cir. 2009) (citation omitted) (citing
City of Burlington v. Dague, 505 U.S. 557, 562 (1992)).
“This method ‘requires the court to multiply the number of
hours reasonably expended on the litigation by a reasonable
hourly rate.’” Id. at 1053 n.4 (quoting Tahara v. Matson
Terminals, Inc., 511 F.3d 950, 955 (9th Cir. 2007)).
“‘[A] reasonable attorney’s fee’ is one that is ‘adequate to
attract competent counsel.’” Blum v. Stenson, 465 U.S. 886,
897 (1984) (quoting S. Rep. No. 94-1011, at 6 (1976)). “[I]t
is necessary,” therefore, “that counsel be awarded fees
commensurate with those which they could obtain by taking
other types of cases,” Christensen, 557 F.3d at 1053 (quoting
Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 981 (9th Cir.
2008)), and that fees be “sufficient to induce a capable
attorney to undertake the representation of a meritorious . . .
case,” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552
(2010).
To ensure adequate compensation, hourly rates “are to be
calculated according to the prevailing market rates in the
relevant community,” Blum, 465 U.S. at 895, meaning the
“rates charged to clients of private law firms,” Miele v. N.Y.
18 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
State Teamsters Conf. Pension & Ret. Fund, 831 F.2d 407,
409 (2d Cir. 1987). Of course, “there is no private market for
attorney’s fees under the LHWCA.” Christensen, 557 F.3d
at 1053. LHWCA attorneys do not, and are not permitted to,
enter into private fee agreements with their clients. Id. (citing
33 U.S.C. § 928(e)).
Hourly rates under the LHWCA, therefore, must be based
on the rates charged to clients of private law firms for similar
work. As Blum explains, the rates awarded must be “in line
with those prevailing in the community for similar services
by lawyers of reasonably comparable skill, experience, and
reputation.” 465 U.S. at 896 n.11. This ensures that
LHWCA attorneys receive the same compensation as their
private-practice counterparts. See Missouri v. Jenkins by
Agyei, 491 U.S. 274, 286 (1989) (“A reasonable attorney’s
fee under § 1988 is . . . comparable to what ‘is traditional
with attorneys compensated by a fee-paying client.’” (quoting
S. Rep. No. 94-1011, at 6 (1976))).
“The evidentiary burdens governing fee motions are well
established.” United States v. $28,000.00 in U.S. Currency,
802 F.3d 1100, 1105 (9th Cir. 2015).
The applicant has an initial burden of
production, under which it must “produce
satisfactory evidence” establishing the
reasonableness of the requested fee. This
evidence must include proof of market rates in
the relevant community (often in the form of
affidavits from practitioners), and detailed
documentation of the hours worked. If the
applicant discharges its legal obligation as to
the burden of production, the court then
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 19
proceeds to a factual determination as to
whether the requested fee is reasonable. In
the usual case, that factual determination will
involve considering both the proponent’s
evidence and evidence submitted by the fee
opponent “challenging the accuracy and
reasonableness of the facts asserted by the
prevailing party.”
Id. (citations omitted) (first quoting Blum, 465 U.S. at 896
n.11, and then quoting Camacho, 523 F.3d at 980).
We conclude that the ALJ erred in applying these
principles.
1. The ALJ erred by concluding that Robinowitz
failed to satisfy his initial burden of production
The ALJ concluded that Robinowitz failed to satisfy his
initial burden of production. This conclusion is not supported
by substantial evidence.
Robinowitz presented substantial evidence that his
requested rate of $450 an hour, in 2016, was “in line with
those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and
reputation.” Blum, 465 U.S. at 896 n.11. This evidence
included, among other things: affidavits from two
experienced practitioners supporting rates of $400 and $404
respectively in 2009; the 2012 OSB Survey reporting that
Portland attorneys with over 30 years’ experience billed
between $350 (median) and $400 (75th percentile) in 2011;
a 2014 Ninth Circuit Appellate Commissioner order awarding
Robinowitz $425 for work performed in 2012 and 2013; and
20 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
a 2014 BRB decision awarding Robinowitz $413 for work
performed in 2013 and $420 for work performed in 2014.
This evidence was more than sufficient to carry
Robinowitz’s initial burden of production. The ALJ’s
contrary conclusion is not supported by substantial evidence.
The ALJ’s concerns at most go to the weight of the evidence,
not its sufficiency.
2. The ALJ erred by rejecting Robinowitz’s evidence
of prevailing market rates as outdated
The ALJ rejected the Goldsmith declaration, the
Markowitz affidavit, and the Morones Survey as “too old to
be very useful” and “simply too dated to be convincing.” We
hold that this conclusion is not supported by substantial
evidence.
It is true, of course, that fee awards must be “based on
current rather than merely historical market conditions.”
Christensen, 557 F.3d at 1055. In Bell v. Clackamas County,
341 F.3d 858, 869 (9th Cir. 2003), for example, we held that
“it was an abuse of discretion . . . to apply market rates in
effect more than two years before the work was performed.”
And it is also true that the parties should provide, and the
adjudicator should rely on, the most current information
available.5 Evidence of historical market conditions,
however, is nevertheless relevant evidence of current market
conditions, and reliance on evidence of historical market
conditions is particularly appropriate when it is the most
5
Robinowitz would be well advised, in future cases, to exercise more
care to offer current practitioner fee data.
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 21
current information available. The ALJ therefore erred by
rejecting Robinowitz’s evidence on this basis.
ALJs, moreover, must treat the parties’ evidence
evenhandedly. Here, both parties, and the ALJ herself, relied
on dated evidence. Robinowitz relied on 2009 declarations
from Goldsmith and Markowitz, the 2010 Morones Survey,
and the 2012 Oregon State Bar Survey, which the ALJ
criticized as incomplete. Respondents, in turn, relied on
excerpts of the 2012 Oregon State Bar Survey. The ALJ
rejected Robinowitz’s evidence as “too dated to be
convincing”) but ultimately relied on the very same 2012
Oregon State Bar Survey as the linchpin of her hourly rate
determination. By the time the ALJ issued her fee decision
in January 2017, the 2011 rates in the 2012 OSB Survey were
six years old. The ALJ nevertheless relied on the survey by
adjusting the 2011 data for inflation—appropriately so. But
the ALJ declined to make similar adjustments to
Robinowitz’s evidence. We see no reason why she should
not have taken the same approach to Robinowitz’s evidence,
and it was error not to do so.
3. The ALJ erred by rejecting Robinowitz’s evidence
of commercial litigation rates
The ALJ also rejected the Goldsmith, Markowitz, and
Morones evidence because they concern rates charged by
attorneys handling commercial litigation. The explanations
the ALJ and the BRB offered for rejecting this evidence are
unsupported.
The ALJ, for instance, plainly erred by rejecting this
evidence on the ground that “commercial litigation . . . is not
the market that Petitioner operates in.” The question is not
22 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
whether Robinowitz qualifies as a commercial litigator; it is
whether the rates charged by commercial litigators are
relevant comparators—i.e., whether the rates involve “similar
services by lawyers of reasonably comparable skill,
experience, and reputation.” Blum, 465 U.S. at 896 n.11.
Turning to that question, the ALJ concluded that
commercial litigation is not similar to the kind of LHWCA
work performed in this case:
Longshore trial work is relatively
straightforward litigation. Effective practice
requires familiarity with the peculiar contours
of the Act and an ability to understand and
work with medical evidence. The process is
informal. There are no jury trials. The rules
of evidence are considerably relaxed. The
rules of procedure are simple, and
enforcement is forgiving. Presumptions
simplify the case and assist claimants greatly.
Hearings, when necessary, are usually short.
Never are there multiple claimants joined in
the same claim for adjudication. There may
be multiple employers and carriers, but the
interests of the respondents are usually
adverse. Except in unusual cases, no showing
of intent, negligence, or culpability is
required.
The sorts of skills and experience
possessed by attorneys in Longshore work are
not the same as the sorts of skills and
experience necessary to engage in mergers
and acquisitions, intellectual property law, or
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 23
complex and class action litigation.
Accordingly, the market rates for such legal
work are not very informative as to a proxy
market for Longshore work.
The ALJ’s analysis is valid up to a point. There are
differences between commercial litigation and LHWCA
work. And it is reasonable, in identifying appropriate
comparators, to distinguish between complex and non-
complex litigation. E.g., DL v. District of Columbia,
924 F.3d 585, 594 (D.C. Cir. 2019). As we explained in
Davis v. City & County of San Francisco, 976 F.2d 1536 (9th
Cir. 1992), opinion vacated in part on other grounds,
984 F.2d 345 (9th Cir. 1993), “[b]oth the Supreme Court and
this court have made clear that [reasonable hourly] rates
should be established by reference to the fees that private
attorneys of an ability and reputation comparable to that of
prevailing counsel charge their paying clients for legal work
of similar complexity.” Id. at 1545 (emphasis added).
Ultimately, however, the ALJ’s reasoning fails for two
distinct reasons. First, the ALJ appears to have conflated
commercial litigation and complex litigation. These two
concepts are not equivalent. Although some commercial
litigation qualifies as complex litigation, other commercial
litigation does not, e.g., a straightforward commercial debt
collection case. Cf. DL, 924 F.3d at 594 (rejecting the
suggestion that all Individual with Disabilities Education Act
(“IDEA”) cases qualify as non-complex litigation merely
because some IDEA cases do).
Second, the ALJ’s analysis proves too much. If
commercial litigation differs from “straightforward” and
“informal” LHWCA work, then so too do plaintiff civil
24 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
litigation work and litigation handled by general practitioners.
Yet the ALJ relied on the market rates paid in these practice
areas to establish Robinowitz’s hourly rate. We can discern
no rational basis for the ALJ’s selective concerns about the
differences between formal and informal litigation. Plainly,
an ALJ may not reject commercial litigation as a comparator,
arbitrarily, simply because commercial litigation attorneys
may charge more than other attorneys. As we explained in
Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir.
2008), the adjudicator’s function “is not to ‘hold the line’ at
a particular rate.”
In sustaining the ALJ’s rejection of Robinowitz’s
evidence of commercial litigation rates, the BRB cited its
earlier decision in Christensen v. Stevedoring Services of
America, No. 03-0302, 2009 WL 4505490 (Ben. Rev. Bd.
2009). In Christensen, the BRB held that “rates paid to
commercial/business litigators in Portland do not provide an
appropriate basis for setting a market rate,” because “a
workers’ compensation practice and a business litigation
practice cannot be viewed as ‘similar.’” Id. at *2. The BRB
offered only a single rationale for treating these two practice
areas as dissimilar: “business litigation routinely requires the
work of a team of attorneys,” such that “certain work is
delegated to paralegals or less experienced attorneys at a
lower cost to the client; as claimant’s counsel is a solo
practitioner he cannot delegate work in this manner, nor could
he expect a client to pay him $400 per hour to perform all the
work himself.” Id.6
6
The BRB also noted the employer’s contention that LHWCA work
“is not comparable” to commercial litigation because “there are no lengthy
trials, and never any jury trials, in longshore cases,” and “the rules of
evidence and procedure are relaxed in administrative hearings.” Id. It is
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 25
Even assuming these distinctions were persuasive in
Christensen, they do not apply here. The record plainly
shows that Robinowitz does delegate work to less
experienced attorneys and paralegals: in fact, his fee
declaration sought fees not only for his own work (at $450 an
hour) but also for an associate attorney (at $225 an hour) and
a paralegal (at $165 an hour). Furthermore, although the
BRB noted that LHWCA work differs from commercial
litigation because it does not involve jury trials or strict
evidentiary rules, these same differences exist between
LHWCA work and the practice areas that the ALJ and the
BRB relied upon to determine Robinowitz’s hourly
rate—plaintiff civil litigation and litigation by general
practitioners. These distinctions, therefore, do not support the
ALJ’s methodology.
4. The ALJ erred by rejecting Robinowitz’s evidence
from the 2012 Oregon State Bar Survey
The Oregon State Bar Survey reports hourly rates in two
ways. One chart reports the rates charged by Portland
attorneys based on their years of experience, irrespective of
practice area. The second reports the rates charged by
Portland attorneys based on their practice areas, irrespective
of their years of experience. Robinowitz relied on the chart
reporting data based on years of experience, and the ALJ
rejected that evidence on the ground that relying on it would
“force me to make a one dimensional fee award by omitting
evidence of other [relevant] factors.” The ALJ then
proceeded to rely on the chart reporting rates by practice area
in determining Robinowitz’s hourly rate.
not clear, however, whether the BRB adopted this rationale advanced by
the employer.
26 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
The ALJ’s rejection of this evidence is not supported by
substantial evidence. First, both charts rely on only a single
factor: in one, that factor is years of experience, and in the
other, that single factor is practice area. Although the ALJ
rejected Robinowitz’s survey evidence as “one dimensional,”
she proceeded to base her rate determination on the equally
one dimensional chart reporting rates by practice area.
Second, even assuming arguendo that rates based on practice
area are more probative than rates based on years of
experience, the latter rates are at least relevant. Indeed, our
case law expressly approves of using the OSB Survey’s
years-of-experience chart to determine reasonably hourly
rates. See Shirrod, 809 F.3d at 1089 (citing Ramsey v.
Cascade Gen., Inc., No. 11-0875, 2012 WL 3903607, at *2–4
(Ben. Rev. Bd. Aug. 29, 2012)). The Ninth Circuit Appellate
Commissioner, moreover, relied on the years-of-experience
chart in awarding Robinowitz fees in Petitt.
5. The ALJ’s decision to place Robinowitz in the 75th
percentile must be vacated
Robinowitz also challenges the ALJ’s decision to place
him within the 75th percentile of attorneys in the plaintiff
civil litigation and general practice areas under the 2012 OSB
Survey. He argues that he should have been placed in the
95th percentile. It is undisputed that Robinowitz is a highly
experienced attorney, with vast experience and expertise in
LHWCA cases. The ALJ, therefore, reasonably could have
placed Robinowitz in the 95th percentile, as both this court
and the BRB have done on other occasions, albeit with
respect to his appellate work. On the other hand, the BRB
has placed Robinowitz within the 75th percentile on several
other occasions with respect to his trial-level work. This was
a judgment call that the ALJ could reasonably have resolved
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 27
either way. We nonetheless vacate the ALJ’s decision to
place Robinowitz in the 75th percentile because that decision
appears to have been influenced by an improper factor,
namely, the ALJ’s unwarranted irritation with a brief that
Robinowitz filed on remand from this court.
In our prior decision setting aside the ALJ’s denial of
benefits, we held that (1) the ALJ “unreasonably
characterized Dr. Kafrouni’s testimony as ‘ignor[ing]’ and
‘dismiss[ing]’ [Cloyd] Seachris’s other health conditions
when Dr. Kafrouni did acknowledge that other conditions in
addition to cervical myelopathy contributed to Seachris’s
immobility and diabetes”; and (2) the ALJ “also erred in
finding that Dr. Kafrouni’s opinion was unsubstantiated by
medical records when the preponderance of the evidence
supports Dr. Kafrouni’s opinion.” Seachris, 538 F. App’x
at 815. Based on these errors, we held that the “ALJ’s
credibility determination as to Dr. Kafrouni’s testimony was
‘patently unreasonable’ and ‘conflict[s] with the clear
preponderance of the evidence.’” Id. at 814. We therefore
concluded that the “ALJ’s determination that the claimant did
not establish that the cervical myelopathy caused by Cloyd
Seachris’s . . . 1979 work injury could have accelerated the
immobility and diabetes that contributed to his death is
unsupported by substantial evidence of the record considered
as a whole.” Id. (emphasis added). Despite the clarity of our
instructions that the ALJ’s credibility determination was
patently unreasonable and that the ALJ’s finding of no
causation lacked substantial evidence support, the ALJ on
remand issued an order requiring Seachris (1) “to identify
those parts of Dr. Kafrouni’s testimony which acknowledged
other medical conditions suffered by the decedent”; and
(2) “to identify the medical records in evidence that support
Dr. Kafrouni’s opinion.” Given that these two points mirror
28 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
exactly the two defects we had identified in our prior ruling
rejecting the ALJ’s credibility determination, the ALJ’s order
effectively required Seachris to file a brief setting out the
evidence that justified our reversal. Robinowitz, as counsel
for Seachris, reasonably declined this invitation to second-
guess our reasons for ruling in his client’s favor and instead
filed a short brief that reasonably took the position that “[i]n
the present case, the Ninth Circuit necessarily held that
Dr. Kafrouni’s interpretation of the medical evidence was the
only permissible one, and that his opinion determines the
issue of causation as a matter of law.”
Although the ALJ ultimately awarded benefits, the ALJ’s
subsequent fee order devotes several single-spaced pages to
expressing the ALJ’s palpable anger with Robinowitz’s
remand brief, stating that, by filing it, Robinowitz “decided
that he needs to discern whether my briefing orders are wise
in order to determine whether he needs to comply”; that he
had thereby “appoint[ed] himself as a sort of interlocutory
appellate judge and nullifies orders deemed unwise”; that
“this is not acceptable behavior for an attorney”; that the ALJ
“could have initiated a contempt proceeding against
[Robinowitz]” but “decided that would simply prolong the
litigation”; and that this behavior “would be relevant to the
fee decision.” There is more than a little irony to these
comments, given that the premise of the ALJ’s order was
apparently that the ALJ was going to re-examine the
correctness of our holdings. We perceive nothing
improper—much less contumacious—in Robinowitz’s
pointing out that the ALJ’s order was inconsistent with our
mandate. Moreover, the ALJ’s order confirms that
Robinowitz’s remand brief played a role in her rating of him
at the 75th percentile, because the ALJ stated that this
“troubling conduct,” by itself, would “suggest[] a rating at the
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 29
median or lower” and was “not a trial strategy that is adopted
by litigators in the top 5% of the bar.” In light of these
comments, we cannot credit the ALJ’s later assertion, in
denying reconsideration, that this episode “played no role” in
the fee determinations; it obviously did. The BRB clearly
erred in accepting that assertion at face value, and a remand
is necessary so that the proper percentile rating can be
reexamined afresh.
6. The ALJ’s decision to include the “general”
practice area in her analysis is not supported by
substantial evidence
Robinowitz argues that the ALJ erred by including the
2012 OSB Survey’s general practice area—applicable to
attorneys who do not devote at least 50 percent of their time
to any one practice area—in her analysis. Robinowitz points
out that he is a specialist, rather than a generalist, and that the
ALJ may have included the general practice area in the
analysis for the improper purpose of holding down his hourly
rate.
Robinowitz’s argument is well-taken. The ALJ offered
no persuasive reason for including the general practice rate in
her analysis, and the wide disparity between this rate ($268)
and the other rates relied on by the ALJ ($350 and $300)
strongly suggests that the ALJ may indeed have been
motivated by an improper purpose.7 We are struck in
particular by the ALJ’s decision to exclude commercial
7
These are the 75th percentile rates for the three practice areas
selected by the ALJ from the 2012 OSB Survey: $300 for plaintiff civil
litigation non-personal injury, $350 for plaintiff civil litigation personal
injury, and $268 for general practice.
30 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
litigation as a comparator while including general practice as
a comparator. There is no evidence in this record to suggest
that LHWCA attorneys in general, or Robinowitz in
particular, are comparable to general practitioners in skills,
experience, or reputation, but dissimilar to commercial
litigators. In fact, general practice, by definition, excludes
attorneys, like Robinowitz, who specialize (devote more than
50% of their time) in litigation. And, of course, there is
abundant evidence in the record to show that Robinowitz was
a specialist, with significant experience and success in
handling LHWCA cases. We therefore agree with
Robinowitz that the record does not support the ALJ’s
inclusion of this practice area in her analysis.
* * *
In sum, we hold that the ALJ and the BRB committed
legal error in determining Robinowitz’s hourly rate and that
the ALJ’s determination of Robinowitz’s hourly rate is not
supported by substantial evidence. We grant the petition for
review on this issue and remand for further proceedings
consistent with this opinion. We note that the Oregon State
Bar has published an updated survey. The 2017 OSB Survey
reports that Portland attorneys with more than 30 years’
experience charged a median rate of $425 per hour in 2016.
For attorneys in the 75th percentile, the average rate was
$495 per hour. These updated rates, which the BRB should
take into account on remand, provide further support for
Robinowitz’s requested rate.
B. Paralegal’s Hourly Rate
We next address Seachris’ contention that the ALJ erred
by awarding Robinowitz’s paralegal a rate of $150 per hour
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 31
rather than $165 per hour as requested. The ALJ based the
$150 rate on two factors: rates awarded by ALJs in other
LHWCA cases; and rates awarded by the federal district court
in the District of Oregon. We hold that the ALJ erred.
First, the ALJ erred by relying almost exclusively on the
rates awarded by other ALJs. As we emphasized in
Christensen, “the BRB should not be allowed to define
‘prevailing market rate’ in such a way as to define the
‘market’ only in terms of what has been awarded by ALJs
and the BRB under the LHWCA.” 557 F.3d at 1054; accord
Van Skike v. Dir., OWCP, 557 F.3d 1041, 1046 (9th Cir.
2009).
Second, the ALJ’s reliance on the district court’s awards
is flawed because the decisions upon which the ALJ relied set
paralegal rates based on survey data pertaining to the western
United States as a whole, rather than the relevant Portland
community. Holdner v. Coba, No. 3:15-CV-2039-AC, 2016
WL 6662687, at *6 (D. Or. Nov. 9, 2016); Pac. Coast Fruit
Co. v. Ron Squires dba Four Seasons Farmers Mkt., No.
3:16-CV-00463-BR, 2016 WL 4443166, at *3 (D. Or. Aug.
19, 2016). These decisions therefore do not provide a proper
foundation for determining the prevailing market rate in the
Portland area. See Shirrod, 809 F.3d at 1089 (“Because the
lodestar method requires a ‘reasonable attorney’s fee’ to be
based on market rates in the ‘relevant community,’ we hold
that the BRB erred in affirming an attorney’s-fee award based
on a proxy market rate not tailored to the ‘relevant
community,’ which, in this case, [was] Portland.”).
Robinowitz provided the only evidence of market rates
for Portland paralegals. Based “on information from Phil
Goldsmith and Serena Morones and [his] own knowledge,”
32 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
Robinowitz stated that “[a] reasonable current hourly rate for
[his paralegal’s] services is $165.” Goldsmith, in turn,
testified in 2009 that “the average rate for paralegals was
$154 an hour” in the 2008 Morones Survey of commercial
litigation rates. Respondents presented no contrary evidence.
On this record, therefore, the evidence supported a rate of
$165 per hour. We note that this is the rate that the Ninth
Circuit Appellate Commissioner awarded to Robinowitz’s
paralegal in the 2014 Petitt decision.8
Accordingly, we grant the petition for review on this
issue. On remand, the BRB shall award Robinowitz’s
paralegal a rate of $165 per hour.
C. Reasonable Hours
As noted earlier, see supra at 27–28, after we previously
held that the ALJ’s credibility determination as to
Dr. Kafrouni’s testimony was “patently unreasonable,”
Seachris, 538 F. App’x at 814, the ALJ on remand ordered
Seachris to file a supplemental brief addressing matters that
this court had already decided. Accordingly, rather than
addressing the issues called for in the ALJ’s supplemental
briefing order, Robinowitz used his supplemental brief to take
issue with the ALJ’s interpretation of this court’s decision,
arguing that “[t]he Ninth Circuit did not remand this case for
further consideration of Dr. Kafrouni’s testimony . . . . It
necessarily remanded for an order allowing widow’s benefits
to Ms. Seachris . . . .”
8
Nothing in the record suggests that the tasks delegated to a paralegal
are so dissimilar in trial versus appellate work as to justify different rates
for paralegals in the trial and appellate phases of litigation.
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 33
In his subsequent fee application, Robinowitz sought to
recover 2.25 hours for preparation of this supplemental brief.
The ALJ disallowed one half of that time—1.125 hours—on
the ground that Robinowitz’s brief was “non-responsive” to
the supplemental briefing order. The ALJ nevertheless
acknowledged that “[i]t was proper to argue that Claimant’s
view was that I needed to only enter judgment in her favor.”
We hold that the ALJ erred by reducing Robinowitz’s
hours on this ground. “A district court should exclude from
the lodestar amount hours that are not reasonably expended
because they are ‘excessive, redundant, or otherwise
unnecessary.’” Van Gerwen v. Guarantee Mut. Life Co.,
214 F.3d 1041, 1045 (9th Cir. 2000) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). Here, Robinowitz’s
hours were neither excessive, redundant, nor unnecessary. As
the ALJ conceded, Seachris appropriately used her
supplemental brief to present her interpretation of the scope
of the remand. The ALJ’s denial of fees for this time,
therefore, is not supported by substantial evidence.
The ALJ’s anger over Robinowitz’s position on the
remand permeates the entire fee order, and it appears that the
ALJ improperly reduced Robinowitz’s fees for preparing the
supplemental brief as a sanction. Although the ALJ later
asserted that Robinowitz’s performance in this regard played
“no role” in the fee award, the record strongly suggests
otherwise.
We grant the petition for review on this issue.
34 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY
D. Interest on Costs
The ALJ and the BRB erred by holding that the LHWCA
does not permit an award of interest on costs to account for
delay in payment. The Supreme Court has made clear that
interest is available in limited circumstances under federal
fee-shifting statutes. See Perdue, 559 U.S. at 555 (“[A]n
enhancement may be appropriate if the attorney’s
performance includes an extraordinary outlay of expenses and
the litigation is exceptionally protracted. . . . [T]he amount of
the enhancement must be calculated using a method that is
reasonable, objective, and capable of being reviewed on
appeal, such as by applying a standard rate of interest to the
qualifying outlays of expenses.”). Our decision in Hobbs,
820 F.2d at 1530–31, upon which the ALJ relied, addressed
post-judgment interest and thus has no bearing on the
question presented here. We therefore grant the petition for
review on this issue. On remand, the BRB should determine
whether an award of interest on costs is appropriate because
of the “exceptionally protracted” period that this case has
been pending—having been filed in 2005—in which costs
were incurred between 2007 and 2016, a period five to
fourteen years ago.9
E. Reassignment
The tone of the ALJ’s decision and the manner in which
the ALJ evaluated the evidence suggest that the ALJ may not
be able to provide Robinowitz with a fair and impartial
hearing on remand. Accordingly, we sua sponte direct that
9
Seachris, of course, has the right to update her application for fees
and costs incurred since her initial application was filed in 2016, five years
ago.
SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 35
the BRB reassign this matter to a different ALJ on remand to
avoid the appearance of partiality. See Smolniakova v.
Gonzales, 422 F.3d 1037, 1054 (9th Cir. 2005) (“We further
direct the BIA not to return the case to [Immigration Judge]
Anna Ho.”); Nuru v. Gonzales, 404 F.3d 1207, 1229 (9th Cir.
2005) (“Given his comments during the hearing and our
strikingly different appraisal of the record, we order that the
case be assigned to a different immigration judge who will
afford Nuru the impartiality to which all applicants are
entitled.”); Reed v. Massanari, 270 F.3d 838, 845 (9th Cir.
2001) (“We remand with instructions that the matter be
assigned to a different ALJ.”); Milburn Colliery Co. v. Hicks,
138 F.3d 524, 537 (4th Cir. 1998) (“Finding the ALJ made
several errors of law including failing to consider all of the
relevant evidence and to adequately explain his rationale for
crediting certain evidence, we conclude that review of this
claim requires a fresh look at the evidence, unprejudiced by
the various outcomes of the ALJ and the [Benefits Review]
Board’s orders below. Accordingly, we reverse and direct the
Board promptly to remand to a new ALJ . . . .”).
IV. CONCLUSION
We grant the petition for review and remand for
proceedings consistent with this opinion.
PETITION GRANTED and REMANDED.