Following a settlement between the parties, Claimant’s attorney filed fee petitions for work performed before the District Director and the Office of Administrative Law Judges. In each petition, the attorney requested an hourly rate of $412, an amount which was consistent with the rate received by the same attorney in recent attorney fee cases. Both the District Director and the Administrative Law Judge (“ALJ”) refused to analyze the requested hourly rates anew, citing instead the Benefits Review Board’s recent analysis in the other cases that addressed the same attorney’s hourly rates. On appeal, the Employer argued that the Director and the ALJ had to make their own analysis of the market data, and that Supreme Court precedent requires “that a case-specific hourly rate must be calculated at each adjudicatory level of proceedings.” The BRB disagreed, stating that the “Ninth Circuit does not require that a new determination of the relevant community and market hourly rate be made in every case.” Although the BRB acknowledged that an attorney’s hourly rate “can very from case to case and, within one case, from level to level,” it did not apply a variance here. The documentary evidence offered in support of each party’s position regarding the fees was the same offered in the Claimant’s attorney’s recently decided BRB cases. Finally, the BRB affirmed the Director’s decision to reduce the number of hours claimed by Claimant’s attorney for work the Director deemed excessive.
Goodell v. Marine Terminals Corp., BRB No. 10-0570 (BRB 2011) (unpublished).
Note: The BRB did not identify the documentary evidence offered in Goodell, but that evidence can be discerned by reviewing the prior Christensen decisions. In Christensen v. Stevedoring Servs. of America, 43 BRBS 145 (2009), which is commonly referred to as Christensen I, the BRB considered Claimant’s 2004 and 2008 “Morones Surveys,” two affidavits submitted by the Claimant, one affidavit offered by the Employer, and the 2007 Oregon Bar Survey. In Christensen II, 44 BRBS 39 (2010), the BRB considered the 2009 Survey of Small Law Firm Economics in addition to the exhibits offered in Christensen I. Then, in Christensen III, 44 BRBS 75 (2010), the BRB addressed the Oregon Bar Survey. Notably, the BRB stated that the documents submitted by the parties were “largely the same” as those offered in Christensen I, which makes it unclear whether the 2009 Survey of Small Law Firm Economics was considered in Goodell. An implicit assumption from Goodell is that the BRB left open the question whether the case-to-case or level-to-level variance would have applied had different evidence been offered in opposition to the Claimant’s attorney’s fee petition.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
