Martin Nelson v. Ictsi Oregon, Inc.

FILED
NOT FOR PUBLICATION
NOV 19 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN W. NELSON, ) No. 17-72752
)
Petitioner, ) BRB No. 16-0519
)
v. ) MEMORANDUM*
)
ICTSI OREGON, INC.; SIGNAL )
MUTUAL INDEMNITY )
ASSOCIATION, LTD. )
)
Respondents. )
)
On Petition for Review of an Order of the
Benefits Review Board
Submitted November 5, 2018**
Portland, Oregon
Before: FERNANDEZ and IKUTA, Circuit Judges, and SESSIONS,*** District
Judge.
Martin Nelson, petitions for review of the decision of the United States
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
***
The Honorable William K. Sessions III, United States District Judge for
the District of Vermont, sitting by designation.
Department of Labor’s Benefits Review Board (BRB) which affirmed the award of
fees made by the Administrative Law Judge (ALJ) to Nelson’s attorney, Charles
Robinowitz. We deny the petition.
(1) Nelson first asserts that the BRB erred when it affirmed the ALJ’s
determination that Robinowitz was not entitled to receive $425 per hour for his
services in this matter. We disagree.
Nelson was entitled to obtain an award of a reasonable attorney’s fee for
Robinowitz on account of the latter’s services. See 33 U.S.C. § 928(a).
Essentially, that involves the use of the lodestar method, “which requires
multiplying a reasonable hourly rate by the number of hours reasonably expended
on the case.” Shirrod v. Director, 809 F.3d 1082, 1086 (9th Cir. 2015). In turn,
that placed the burden on Nelson to show that the hourly rate he sought for
Robinowitz was “‘in line with [the rates] prevailing in the community [Portland,
Oregon] for similar services by lawyers of reasonably comparable skill, experience
and reputation.’” Id.; see also Christensen v. Stevedoring Servs. of Am., 557 F.3d
1049, 1053 (9th Cir. 2009). On this record, the ALJ could reasonably determine
that the fee requested by Nelson for Robinowitz was not supported by the
evidence. See Van Skike v. Director, 557 F.3d 1041, 1045 (9th Cir. 2009); see also
Christensen, 557 F.3d at 1053. For example, one of the two declarations did not
2
expressly support the requested rate, and the other essentially relied upon a survey
of attorneys who were involved in commercial litigation, which the ALJ and BRB,
in the exercise of their discretion,1 could properly reject as a comparator. They
relied, instead, on the 2012 Oregon Bar Survey (the Survey) results for the
Portland, Oregon area. Thus, the ALJ resorted to creation of a proxy market rate
for the purpose of calculating the proper rate for Robinowitz’s services.
(2) In calculating an hourly rate for Robinowitz, the ALJ relied upon two
areas-of-practice groups in the Survey: “Civil Litigation, Plaintiff (excludes
personal injury)” and “Civil Litigation, Plaintiff – Personal Injury.”2 We detect no
error in those choices. The ALJ used the portion of those groups of lawyers in the
75th percentile. Nelson asserts that the ALJ erred when he did so because
Robinowitz should have been placed in the 95th percentile of those groups.
However, the evidence, which is largely the same as that which Nelson relied upon
to assert that Robinowitz was entitled to $425 per hour in the first place, does not
compel a determination that Robinowitz was in the 95th percentile. While it can
be argued that even though Robinowitz is not in the 95th percentile, he should still
1
See Christensen, 557 F.3d at 1052; see also United States v. Hinkson, 585
F.3d 1247, 1261–63 (9th Cir. 2009) (en banc).
2
See Shirrod, 809 F.3d at 1088. Note that the ALJ also indicated that he
would rely upon practice group “General (no area over 50%).”
3
be higher than the 75th percentile, there is no evidence regarding what that
percentile should be and why Robinowitz is in it. The ALJ had two relevant
choices, 75th and 95th, before him, and having rejected the latter, he chose the
former. Of course, as has often been said, the setting of fees is not supposed to be
a “green-eyeshade” operation.3 There was no abuse of discretion.
(3) Nelson also asserts that the BRB erred when it affirmed the rate set by
the ALJ for the senior associate in Robinowitz’s firm. On this record we see no
abuse of discretion in the setting of the amount awarded for the work of the senior
associate.
(4) Finally, Nelson asserts that the ALJ erred when he set the rates for
Robinowitz’s paralegal. Reimbursement for paralegal work is available,4 and
should be calculated at the appropriate market rate.5 Again, on the record of this
case the setting of the rate in question was not an abuse of discretion.
Petition DENIED.
3
Fox v. Vice, 563 U.S. 826, 838, 131 S. Ct. 2205, 2216, 180 L. Ed. 2d 45
(2011).
4
See 20 C.F.R. § 703.132(a); see also id. § 802.203(d)(2), (4).
5
See Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274, 288–89, 109 S. Ct.
2463, 2471–72, 105 L. Ed. 2d 229 (1989); Quintana v. Crescent Wharf &
Warehouse Co., 18 Ben. Rev. Bd. Serv. 254, 256 (1986).
4