Tuesday, March 3, 2009
Ninth Circuit Revives Bid for Higher Fee Awards in Harbor Cases
By SHERRI M. OKAMOTO, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday clarified that the market rate for legal services under the Longshore and Harbor Workers’ Compensation Act cannot be exclusively based on contemporaneous cases.
The panel ordered reconsideration awards of attorney fees to Portland, Ore. attorney Charles Robinowitz at rates below the $350 per hour he had requested for his representation of Bruce W. Christensen and Arel Price in matters arising under act.
The act provides for a “reasonable attorney fee” for services performed before the Benefits Review Board of the United States Department of Labor, based on the reasonable and customary rate in the area where the services were rendered.
In each case, the board determined that a rate of $250 was appropriate in the geographic region and was adequate compensation.
Writing for the appellate court, U.S. District Court Judge John M. Roll for the District of Arizona, sitting by designation, explained that the relevant community for purposes of an attorney fee award is the forum in which the district court is located.
But Roll said that such a definition is “problematic” in the absence of a private market for attorney fees under the act, because Congress intended for prevailing attorneys to be awarded fees commensurate with those which they could obtain by taking other types of cases to encourage counsel to undertake such representation.
Based on Student Public Interest Research Group of New Jersey v. AT&T Bell Laboratories, in which the Third Circuit rejected an attempt to establish public interest market rates by looking to other awards as “a tautological, self-referential enterprise” which would “perpetuate a court-established rate as a ‘market’ when that rate in fact bears no necessary relationship to the underlying purpose of relying on the marketplace,” Roll concluded a reasonable award of attorney fees under the act could not be based on awards in other cases.
Although the failure of an attorney to establish a relevant market could justify examination of contemporaneous awards, Roll concluded the relevant community must be defined “more broadly than the LHWCA bar.”
Noting that the board had failed to justify its award at the $250 rate so as to allow for meaningful review, Roll, joined by Judges William A. Fletcher and Raymond C. Fletcher, vacated the award and remanded the matter for further proceedings.
The same panel of judges also reviewed the board’s denial of Robinowitz’s request for compensation at a rate of $350 per hour for his representation of David Van Skike, and again vacated the board’s award and remanded for consideration in light of the Christensen decision.
The cases are Christensen v. Stevedoring Services of America, 07-70247, and Van Skike v. Director, Office of Workers’ Compensation Programs, 07-73886.
Copyright 2009, Metropolitan News Company