FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LADONNA E. SEACHRIS, No. 18-71807 Petitioner, BRB No. v. 17-0581 BRADY-HAMILTON STEVEDORE COMPANY; SAIF CORPORATION; OPINION DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, Respondents. On Petition for Review of an Order of the Benefits Review Board Argued and Submitted September 3, 2020 Seattle, Washington Filed April 19, 2021 Before: A. Wallace Tashima, Jay S. Bybee, and Daniel P. Collins, Circuit Judges. Opinion by Judge Tashima 2 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY SUMMARY* Longshore Act / Attorney’s Fees The panel granted a petition for review of a decision of the Benefits Review Board (“BRB”) that upheld an administrative law judge (“ALJ”)’s award of attorney’s fees and costs under the Longshore and Harbor Workers’ Compensation Act. Petitioner filed a claim for death benefits under the Longshore Act, and was represented in the proceedings by attorney Charles Robinowitz. An ALJ granted petitioner’s claim for benefits, and Robinowitz requested “a reasonable attorney’s fee” under 33 U.S.C. § 928(a). Robinowitz sought an hourly rate of $450, but the BRB awarded him a rate of $349.85 per hour. The panel held that the ALJ erred by concluding that Robinowitz failed to satisfy his initial burden of producing evidence of a prevailing market rate for his services. Robinowitz presented substantial evidence that his requested rate of $450 an hour, in 2016, was in line with the prevailing rate in the community for similar services by lawyers of comparable skill, experience, and reputation. The panel concluded that the ALJ’s contrary conclusion was not supported by substantial evidence, and the ALJ’s concerns at most went to the weight of the evidence, not its sufficiency. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 3 The panel held that the ALJ erred by rejecting Robinowitz’s evidence of prevailing market rates as outdated because the conclusion was not supported by substantial evidence. Evidence of historical market conditions is relevant evidence of current market conditions, and reliance on such evidence is particularly appropriate when it is the most current information available. The panel held that the ALJ erred by rejecting Robinowitz’s evidence of commercial litigation rates. First, the ALJ appeared to have conflated commercial litigation and complex litigation. Second, there was no discernable rational basis for the ALJ’s selective concerns about the differences between formal and informal litigation. The panel held that the ALJ erred by rejecting Robinowitz’s evidence from the 2012 Oregon State Bar Survey of hourly rates. The panel held further that the ALJ’s decision to place Robinowitz within the 75th percentile of attorneys in the plaintiff civil litigation and general practice areas under the 2012 Oregon State Bar Survey must be vacated because that decision appeared to have been influenced by an improper factor, namely, the ALJ’s unwarranted irritation with a brief that Robinowitz filed on remand from this court. The panel held that the ALJ’s decision to …
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