Vortex Marine Construction, employer; Signal Mutual Indemnity Association, Insurance Carrier, Petitioners,
v.
Terry Grimm; General Construction Company; St. Paul Fire and Marine Insurance Company; Director, Office of Workers' Compensation Program; U.S. Department of Labor, Respondents.
James
P. Aleccia, Aleccia & Mitani, Long Beach, California, for
Petitioners.
Eric
A. Dupree and Paul R. Meyers, Dupree Law aplc, Coronado,
California; Joshua T. Gillelan II, Longshore Claimants'
National Law Center, Washington, D.C.; for Respondent Terry
Grimm.
Before: Michael Daly Hawkins, Marsha S. Berzon, and Andrew D.
Hurwitz, Circuit Judges
SUMMARY[*]
Attorneys'
Fees/Benefits Review Board
The
panel upheld the Appellate Commissioner's order awarding
attorneys' fees and costs for a petition for review in
the amount of $32, 280 in favor of Terry Grimm and against
Vortex Marine Construction and Signal Mutual Indemnity
Association, and amending the mandate; and awarded
attorneys' fees for the fee litigation in the amount of
$20, 060 in favor of Terry Grimm and against Vortex Marine
and Signal Mutual.
After
Vortex Marine and Signal Mutual dismissed a petition for
review of a decision of the Benefits Review Board, the panel
granted Grimm's motion for an award of attorneys'
fees on review and referred the determination of an
appropriate amount of fees on review to the Appellate
Commissioner, and also referred to the Appellate Commissioner
for a report and recommendation on Grimm's supplemental
attorneys' fees motion, including the issue of
entitlement to fees for defending the fee application.
In its
order, the panel agreed with the Appellate Commissioner that
Baker Botts L.L.P. v. ASARCO LLC, 135 S.Ct. 2158,
2168 (2015), did not prevent an award of attorney's fees
for the fee litigation under the Longshore and Harbor
Workers' Compensation Act, 33 U.S.C. § 928(a). The
panel noted that under fee-shifting statutes, like §
928(a) of the Longshore Act, courts uniformly decline to
treat fee-application and fee-litigation work differently.
Accordingly, the panel upheld the Appellate
Commissioner's order awarding attorneys' fees and
costs for the petition for review; and awarded attorneys'
fees for the fee litigation in the amount of $20, 060 in
favor of Grimm and against Vortex Marine Construction and
Signal Mutual Indemnity Association.
ORDER
After
Vortex Marine Construction and Signal Mutual Indemnity
Association dismissed the petition for review, we granted
Terry Grimm's motion for an award of attorneys' fees
on review and referred the determination of an appropriate
amount of fees on review to the Appellate Commissioner.
See 9th Cir. R. 39-1.9. We also referred to the
Appellate Commissioner for a report and recommendation
Grimm's supplemental attorney's fees motion,
including the issue of entitlement to fees for defending the
fee application. The Appellate Commissioner awarded
Grimm's attorneys' fees and costs for the petition
for review in the amount of $32, 280, and recommended that we
award Grimm's attorneys' fees for the fee litigation
in the amount of $20, 060.
The
parties have not requested reconsideration of the Appellate
Commissioner's order or objected to the Appellate
Commissioner's report and recommendation. We agree with
the Appellate Commissioner's determination that Baker
Botts L.L.P. v. ASARCO LLC, 135 S.Ct. 2158, 2168 (2015),
does not prevent an award of attorneys' fees for the fee
litigation here under the Longshore and Harbor Workers'
Compensation Act ("LHWCA"), 33 U.S.C. §
928(a). In Baker Botts, the court held that the text
of § 330(a)(1) of the Bankruptcy Code does not shift the
costs of adversarial litigation from one side to the other,
and it does not displace the American Rule with respect to
fee-defense litigation. See id. at 2165-67; see
also Micha v. Sun Life Assurance of Canada, Inc., 874
F.3d 1052, 1062 n.2 (9th Cir. 2017) (Berzon, J., concurring).
But § 928(a) of the LHWCA is a fee-shifting statute that
departs from the American Rule and explicitly shifts to the
employer or carrier the responsibility for payment of a
reasonable fee for attorney services for the adversarial
litigation if the claimant successfully prosecutes the claim.
See Shirrod v. Dir., OWCP, 809 F.3d 1082, 1084, 1086
(9th Cir. 2015); see also Baker Botts, 135 S.Ct. at
2164-65, 2167-68. Under fee-shifting statutes like §
928(a), courts have uniformly declined to treat
fee-application and fee-litigation work differently, and have
consistently held that time spent establishing the
entitlement to and amount of the fee is compensable. See
Baker Botts, 135 S.Ct. at 2167-68 (citing
Comm'r, INS v. Jean, 496 U.S. 154, 158, 162
(1990)); Blixseth v. Yellowstone Mtn. Club, 854 F.3d
626, 629, 631-32 (9th Cir. 2017) (citing In re S. Cal.
Sunbelt Developers, Inc., 608 F.3d 456, 462-64 & n.4
(9th Cir. 2010)).
Thus,
the Appellate Commissioner's order awarding
attorneys' fees and costs for the petition for review in
the amount of $32, 280 in favor of Terry Grimm and against
Vortex Marine Construction and Signal Mutual Indemnity
Association, and amending the mandate, remains in effect.
Accordingly, we hereby award attorneys' fees for the fee
litigation in the amount of $20, 060 in favor of Terry Grimm
and against Vortex Marine Construction and Signal Mutual
Indemnity Association. This order amends the court's
mandate.
---------
Notes:
[*] This summary constitutes no part of
the opinion of the court. It has been prepared by court staff
for the ...