Jackson Ex Rel. Dupree v. Director, Office of Workers' Compensation Programs

FILED
NOT FOR PUBLICATION JAN 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STEVEN JACKSON, to the use of No. 11-71193
ERIC A. DUPREE,
Agency No. 18-75727
Petitioner,
v.
MEMORANDUM *
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR and LABOR READY, INC.,
Respondents,
On Petition for Review of an Order of the
Benefits Review Board
Submitted January 10, 2013 **
Pasadena, California
Before: McKEOWN and M. SMITH, Circuit Judges, and BELL,*** District Judge.
*
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. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert Holmes Bell, United States District Judge for the
Western District of Michigan, sitting by designation.
Petitioner Steven Jackson petitions for review of the final order of the
Benefits Review Board, affirming the Office of Workers’ Compensation Programs’
District Director’s order reducing the hours and fees in an attorney’s fee petition
and granting Jackson’s attorneys, Eric Dupree and Paul Myers, an attorney fee
award of $16,736.50.1 We have jurisdiction pursuant to 33 U.S.C. § 921(c). For
the following reasons, we deny the petition for review.
We review an award of attorney’s fees for abuse of discretion. Tahara v.
Matson Terminals, Inc., 511 F.3d 950, 952 (9th Cir. 2007). “Any elements of legal
analysis that figure into the fee determination are subject to de novo review, and
we review underlying factual determinations for clear error.” Id. Jackson was
successful on a federal workers’ compensation claim against Respondent True
Blue, Inc.,2 and thus he is entitled to a “reasonable attorney’s fee” pursuant to § 28
of the Longshore and Harbor Worker’s Compensation Act, 33 U.S.C. § 928. “Use
of the ‘lodestar method’ to calculate attorney’s fees under a federal fee-shifting
statute is proper.” Tahara, 511 F.3d at 955 (citing Staton v. Boeing Co., 327 F.3d
938, 965 (9th Cir. 2003)). “The lodestar method requires the court to multiply the
number of hours reasonably expended on the litigation by a reasonable hourly rate.
1
This figure does not include the $846 the Board added to the award. Nor
does it include the $12,609 awarded to co-counsel Joshua Gillelan. Neither of
those amounts are in dispute.
2
True Blue, Inc. was formerly known as Labor Ready, Inc.
2
. . . In calculating the number of hours reasonably expended, a district court is to
exclude hours that are ‘excessive, redundant, or otherwise unnecessary.’” Id.
(quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
The attorneys’ fees in dispute relate to time spent by Dupree and Myers
solely in the fee proceeding. The District Director disallowed 60.6 of the 80.4
hours spent on two reply briefs because these hours were “excessive/unnecessary
billing” and were “duplicative in nature or excessive for the scope of this case.”
“The district court need only provide a ‘concise but clear explanation of its
reasons’ for reducing the numbers of hours included in the fee award.” Tahara,
511 F.3d at 956 (quoting Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041,
1045 (9th Cir. 2000)). We conclude that the District Director’s explanation fully
complied with this requirement.
Additionally, we conclude both that the District Director did not abuse his
discretion in reducing the hours claimed and that the amount of the fee award was
sufficient. “[T]he district court has discretion in determining the amount of a fee
award. This is appropriate in view of the district court’s superior understanding of
the litigation . . . .” Hensley, 461 U.S. at 437. The claimed hours occurred after
Jackson’s success on the merits, and without the District Director’s reduction, the
claimed hours would have resulted in an attorneys’ fee award disproportionate to
Jackson’s award.
3
Finally, we conclude that the Board applied the correct standard in affirming
the District Director’s reduction of the hours.
PETITION DENIED.
4