Cathy McDonald v. Navy Exchange Service Command

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CATHY MCDONALD, No. 15-73525
Petitioner, BRB No. 2014-0400
v.
NAVY EXCHANGE SERVICE MEMORANDUM *
COMMAND, et al.,
Respondents.
On Petition for Review of an
Order of the Benefits Review Board
Submitted May 15, 2017**
San Francisco, California
Before: W. FLETCHER and TALLMAN, Circuit Judges, and HUCK,*** District
Judge.
Petitioner Cathy McDonald petitions for review of a Decision and Order of
the Benefits Review Board (the “Board”) largely affirming the Administrative Law
*
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).
***
The Honorable Paul C. Huck, United States District Judge for the
Southern District of Florida, sitting by designation.
Judge’s (“ALJ”) Attorney’s Fee Order in a case arising under the Longshore and
Harbor Workers’ Compensation Act (the “Longshore Act”). We have jurisdiction
under 33 U.S.C. § 921(c), and we deny McDonald’s petition for review.
The Board must accept the ALJ’s findings “unless they are contrary to law,
irrational, or unsupported by substantial evidence in the record considered as a
whole.” Marine Power & Equip. v. Dep’t of Labor, 203 F.3d 664, 667 (9th Cir.
2000). We, in turn, review the Board for “errors of law and for adherence to the
statutory standard governing the [Board’s] review.” Haw. Stevedores, Inc. v.
Ogawa, 608 F.3d 642, 648 (9th Cir. 2010) (internal citation omitted). “[W]e will
not disturb the decision of an ALJ because of a harmless error.” Id.McDonald argues that the Board acted arbitrarily and capriciously and abused
its discretion in upholding the ALJ’s calculation of her attorney, Matthew
Witteman’s, attorney’s fee pursuant to 33 U.S.C. § 928(a). McDonald makes two
primary arguments. The first is that the Board erred in affirming the ALJ’s decision
setting Witteman’s hourly rate at $305, because the ALJ disregarded critical
evidence, rejected other evidence in a way that violated his duty of impartiality, and
applied an inaccurate view of the law. The second is that the Board erred by
upholding the ALJ’s disallowance of approximately 40 percent of Witteman’s
claimed hours, because the ALJ applied an inaccurate view of the law, made clearly
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erroneous findings of fact, and failed to explain his reasoning with the required level
of specificity.
We reject McDonald’s contentions of error. The record supports the Board’s
Decision that Witteman did not carry his burden of establishing that his proposed
rate of $400 was “in line with those prevailing in the community for similar services
by lawyers of reasonably comparable skill, experience and reputation.” Christensen
v. Stevedoring Servs. of Am., 557 F.3d 1049, 1053 (9th Cir. 2009). The Board
correctly held that the ALJ acted within his discretion by relying upon the rate set in
Estate of V.P. v. APM Terminals, ALJ No. 2008-LHC-00842 (Dep’t of Labor Aug.
18, 2009) (ALJ Berlin), and adjusting that rate to take into account the different
markets at issue and the overall economic landscape at the time the attorney’s fees
were incurred. See Christensen, 557 F.3d at 1055.
Further, in calculating a fee applicant’s lodestar, a court has discretion to
exclude hours that were not “reasonably expended” by counsel. See Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983). There is no “precise rule or formula” for doing
so. Id. at 436. However, “[t]he essential goal in shifting fees . . . is to do rough
justice, not to achieve auditing perfection,” and judges may therefore “take into
account their overall sense of a suit, and may use estimates in calculating and
allocating an attorney’s time.” Fox v. Vice, 563 U.S. 826, 838 (2011). With this in
mind, we agree with the Board that the ALJ acted within his discretion in cutting
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Witteman’s claimed hours. We also agree that the ALJ was within his right to
disallow the hours that Witteman claimed for his “Reply to Opposition to Fee
Application,” which greatly exceeded the scope of Witteman’s “Amended
Application for Attorneys’ Fees and Costs,” and, in any event, failed to establish a
reasonable hourly rate. The Board also properly affirmed the ALJ’s decision to
sustain the Respondents’ objections to 49 of Witteman’s individual time entries.
Although these cuts may have amounted to more than a “haircut,” Moreno v. City of
Sacramento, 534 F.3d 1106, 1113 (9th Cir. 2008), the ALJ provided a sufficient
explanation of why the cuts were appropriate in light of the concerns articulated
about Witteman’s timekeeping.
PETITION FOR REVIEW DENIED. Each party shall bear its own costs
of this appeal.
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