David ORPILLA, Petitioner, v. HAWAII STEVEDORES, INCORPORATED; et al., Respondents.
Decided: February 06, 2020
Before: FARRIS, McKEOWN, and BADE, Circuit Judges.
Lara Merrigan, Merrigan Legal, San Rafael, CA, Steven M. Birnbaum, Esquire, Attorney, Law Office of Steven M Birnbaum, San Rafael, CA, for Petitioner James P. Aleccia, Attorney, Aleccia, Conner & Socha, Long Beach, CA, David Doeling, Aleccia & Mitani, Long Beach, CA, for Respondents Hawaii Stevedores, Incorporated, Signal Mutual Indemnity Association Mark A. Reinhalter, Counsel, William M. Bush, Trial Attorney, LABR - U.S. Department of Labor, Office of the Solicitor, Washington, DC, for Respondent Director, Office of Workers' Compensation Programs
Petitioner David Orpilla seeks review of a Department of Labor Benefits Review Board (“BRB”) order denying reconsideration of an administrative law judge's (“ALJ”) attorneys’ fees award. We have jurisdiction under 33 U.S.C. 921(c) and, reviewing the award of attorney's fees for abuse of discretion, Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049, 1052 (9th Cir. 2009), deny the petition.
Orpilla argues the ALJ improperly concluded the relevant legal community for the purposes of calculating attorney's fees was Hawaii, rather than his counsel's home market of the San Francisco Bay Area, but “we leave it to the BRB, ALJs, and District Directors to determine the ‘relevant community.’ ” Shirrod v. Dir., OWCP, 809 F.3d 1082, 1088 n.5 (9th Cir. 2015). This determination was supported by substantial evidence: Orpilla, Orpilla's employer, the incident giving rise to this litigation, and the location where a hearing would have taken place are all in Hawaii. See id. at 1087.
Orpilla also contends the ALJ “only minimally acknowledged” the evidence he submitted in support of his hourly rate, instead using hourly rate calculations from a different case. But Orpilla submitted no evidence of the prevailing rates in the Hawaiian legal market, and when an applicant fails to produce this evidence, the ALJ and BRB may rely on other Longshore and Harbor Workers Compensation Act cases “in order to ascertain a reasonable fee.” Christensen, 557 F.3d at 1055.
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