ALJ Determination Based On Lower Fee Rates From Prior LHWCA Cases Rejected by Ninth Circuit.
In our March 9, 2009 post, we explored two Ninth Circuit companion opinions, Van Skike v. Dir., Office of Workers’ Comp. Programs, 557 F.3d 1041 (9th Cir. 2009) and Christensen v. Stevedoring Servs. Of Am., 557 F.3d 1049 (9th Cir. 2009). There, the Ninth Circuit dramatically improved the lots of LHWCA attorneys seeking fee awards, determining that the relevant community for purposes of pegging a prevailing market rate cannot be based solely on lower LHWCA rate-settings.
These decisions were followed, yet again, by the Ninth Circuit in Nasser v. Dir., Office of Workers’ Comp. Programs, Case No. 09-70706 (9th Cir. Apr. 26, 2010) (unpublished memorandum decision).
There, the ALJs awarded a LHWCA attorney an hourly rate of $285 based on six prior reported LHWCA cases with an awarded range of $225-$300. However, the attorney had presented rate surveys and attorney affidavits from a broader community of similarly-experienced attorneys doing work of comparable complexity showing that much higher hourly rates were in order—evidence apparently ignored by the ALJs.
The Ninth Circuit vacated the fee decision and remanded for reconsideration in light of the Van Skike and Christensen decisions. Also, the ALJs were instructed to reconsider their reduction of “fees on fees” (fees spent on presenting the fee request) based on attorney’s previous failure to obtain his requested hourly rate—a reversal required given that attorney had now won the hourly rate issue on appeal.