Summary
The Ninth Circuit consolidated four appeals concerning applications for attorney's fees incurred in successful Longshore and Harbor Workers' Compensation Act appeals. The court held that the fee applications were timely, that objections concerning attorney authorization had been waived, and that the petitioners had prevailed even though the precise fee amounts remained subject to remand. It granted the applications and referred determination of the fee amounts to the court's special master.
Topics
Practice areas
Questions Presented
- Whether the appellate attorney's-fee applications were timely when a consolidated filing was struck for requiring separate applications.
- Whether an attorney was entitled to seek appellate fees without submitting evidence that the claimants had authorized the representation in writing.
- Whether the fee applications were premature because the petitioners might receive the same hourly rate on remand.
- Whether the appropriate amount of appellate attorney's fees should be determined by a special master.
Holdings
- The fee applications were timely because the corrective filings related back to the date of the initial filing that had been stricken for a technical consolidation error.
- The attorney was entitled to seek appellate fees because he provided services for the petitioners and applied to the court for fees; respondents waived any objection concerning written authorization by failing to raise it timely.
- The applications were not premature because the petitioners prevailed on their principal appellate challenge when the court invalidated the agency's methodology, regardless of whether the agency ultimately increased the hourly rate on remand.
- The applications for appellate attorney's fees were granted, and determination of the appropriate amount was referred to Appellate Commissioner Peter L. Shaw as special master.
Key quotations
“Petitioners unquestionably prevailed on this issue, because we invalidated the agency's methodology.” (978)
“Because petitioners prevailed in these appeals, regardless of whether the agency increases the reasonable hourly rate on remand, their applications for appellate attorney's fees are not premature.” (979)
Factual background
The petitioners successfully prosecuted underlying claims for benefits against their employers under the Longshore and Harbor Workers' Compensation Act. Their attorneys challenged the agency's methodology for setting reasonable hourly rates, arguing that the agency improperly relied exclusively on prior LHWCA fee awards and failed to consider market evidence. The Ninth Circuit vacated the challenged fee awards and remanded for reconsideration using market considerations, after which the attorneys sought appellate attorney's fees.
Procedural history
The petitioners had obtained benefits under the Longshore and Harbor Workers' Compensation Act and were awarded attorney's fees under 33 U.S.C. § 928(a). In prior appeals, the Ninth Circuit held that the agency's methodology for determining reasonable hourly rates was flawed, vacated the fee awards, and remanded for further proceedings. The petitioners then sought fees for the appellate work, and respondents opposed the applications as untimely, unauthorized, and premature.
Remand instructions
The determination of the appropriate amount of appellate attorney's fees is referred to Appellate Commissioner Peter L. Shaw, who may conduct appropriate proceedings and enter an order awarding fees. The order is subject to reconsideration by the panel.