David Orpilla v. Hawaii Stevedores, Inc

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 6 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ORPILLA, No. 18-72606
Petitioner, BRB No. 18-0079
v.
MEMORANDUM*
HAWAII STEVEDORES,
INCORPORATED; et al.,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
Submitted February 4, 2020**
Honolulu, Hawaii
Before: FARRIS, McKEOWN, and BADE, Circuit Judges.
Petitioner David Orpilla seeks review of a Department of Labor Benefits
Review Board (“BRB”) order denying reconsideration of an administrative law
judge’s (“ALJ”) attorneys’ fees award. We have jurisdiction under 33 U.S.C.
921(c) and, reviewing the award of attorney's fees for abuse of discretion,
*
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).
Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049, 1052 (9th Cir. 2009),
deny the petition.
Orpilla argues the ALJ improperly concluded the relevant legal community
for the purposes of calculating attorney’s fees was Hawaii, rather than his
counsel’s home market of the San Francisco Bay Area, but “we leave it to the
BRB, ALJs, and District Directors to determine the ‘relevant community.’”
Shirrod v. Dir., OWCP, 809 F.3d 1082, 1088 n.5 (9th Cir. 2015). This
determination was supported by substantial evidence: Orpilla, Orpilla’s employer,
the incident giving rise to this litigation, and the location where a hearing would
have taken place are all in Hawaii. See id. at 1087.
Orpilla also contends the ALJ “only minimally acknowledged” the evidence
he submitted in support of his hourly rate, instead using hourly rate calculations
from a different case. But Orpilla submitted no evidence of the prevailing rates in
the Hawaiian legal market, and when an applicant fails to produce this evidence,
the ALJ and BRB may rely on other Longshore and Harbor Workers
Compensation Act cases “in order to ascertain a reasonable fee.” Christensen, 557
F.3d at 1055.
DENIED.
2