Ladonna Seachris v. Brady-Hamilton Stevedore Co.

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Robinowitz’s evidence of prevailing market rates as outdated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 include the

“general” practice area in her analysis was not supported by

substantial evidence. There was abundant evidence in the

record to show that Robinowitz was a specialist, with

significant experience and success in handling Longshore Act

cases.

4 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

The panel concluded that the ALJ and the BRB

committed legal error in determining the hourly rate, and that

the ALJ’s determination of the hourly rate was not supported

by substantial evidence. The panel granted the petition for

review on this issue, and remanded for further proceedings.

The panel held that the ALJ erred by awarding

Robinowitz’s paralegal a rate of $150 per hour rather than

$165 per hour as requested. First, the ALJ erred by relying

almost exclusively on the rates awarded by other ALJs.

Second, the ALJ’s reliance on the district court’s reliance on

the district court’s awards was flawed because the decisions

upon which the ALJ relied set paralegal rates based on survey

data pertaining to the western United States as a whole, rather

than the relevant Portland community. Robinowitz provided

the only record evidence of market rates for Portland

paralegals. The panel granted the petition for review on this

issue, and directed that the BRB on remand award

Robinowitz’s paralegal a rate of $165 per hour.

The ALJ on remand ordered petitioner to file a

supplemental brief addressing matters that this court had

already decided. Rather than addressing the issues called for

in the ALJ’s supplemental briefing order, Robinowitz used

the brief to take issue with the ALJ’s interpretation of this

court’s decision. The panel held that the ALJ improperly

reduced Robinowitz’s fees for preparing the supplemental

brief. The panel held that the ALJ’s anger over Robinowitz’s

position on remand permeated the entire fee order, and it

appeared that the ALJ improperly reduced Robinowitz’s fees

for preparing the supplemental brief as a sanction. The panel

granted the petition for review on this issue.

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 5

The panel held that the ALJ and the BRB erred by holding

that the Longshore Act did not permit an award of interest on

costs to account for delay in payment. The panel granted the

petition for review on this issue, and directed the BRB on

remand to determine whether an award of interest on costs

was appropriate because of the exceptionally protracted

period that this case has been pending.

Finally, the panel held that the tone of the ALJ’s decision

and the manner in which the ALJ evaluated the evidence

suggested that the ALJ may not be able to provide

Robinowitz with a fair and impartial hearing on remand.

Accordingly, the panel sua sponte directed that the BRB

reassign this matter to a different ALJ on remand to avoid the

appearance of impropriety.

COUNSEL

Joshua T. Gillelan II (argued), Longshore Claimants’

National Law Center, Mitchellville, Maryland; Charles

Robinowitz, Portland, Oregon; for Petitioner.

Michael J. Godfrey (argued), Sather Byerly & Holloway

LLP, Portland, Oregon, for Respondent.

6 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

OPINION

TASHIMA, Circuit Judge:

This is Ladonna Seachris’ (“Seachris”) petition to review

a decision of the Benefits Review Board (“BRB”) upholding

a decision of an administrative law judge (“ALJ”) awarding

Seachris attorney’s fees and costs under the Longshore and

Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C.

§§ 901–50. We hold that aspects of the decisions under

review constitute legal error and are not supported by

substantial evidence. Specifically, we hold that the ALJ

improperly rejected the fee applicant’s evidence of prevailing

market rates, erroneously established a paralegal’s hourly rate

by reference to other ALJ decisions rather than evidence of

prevailing market rates in the relevant community, and

improperly denied fees for hours reasonably expended. We

further hold that the ALJ and the BRB erred in concluding

that the LHWCA does not authorize an award of interest on

costs. Accordingly, we grant the petition for review and

remand to the BRB for further proceedings. We also order

the BRB to reassign this matter to a different ALJ on remand.

I. BACKGROUND

A. Robinowitz’s Fee Application

In 2006, Seachris, widow of Cloyd E. Seachris,1 filed a

claim for death benefits under the LHWCA. Seachris was

represented in the proceedings by attorney Charles

Robinowitz. The proceedings were heard by an ALJ in the

U.S. Department of Labor’s Office of Administrative Law

1

Cloyd Seachris died on October 10, 2005.

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 7

Judges (“OALJ”). After the ALJ denied the claim and the

BRB affirmed, we granted a petition for review and

remanded. Seachris v. Dir., OWCP, 538 F. App’x 813 (9th

Cir. 2013). On remand, in April 2016, the ALJ granted

Seachris’ claim for benefits.

Seachris’ successful prosecution of her claim entitled

Robinowitz to an award of “a reasonable attorney’s fee.”

33 U.S.C. § 928(a).2 Accordingly, in May 2016, ten years

after the claim was first filed, Robinowitz filed a Declaration

of Attorney Fees and Costs seeking an award of $50,616.75

in attorney’s fees and $5,413.95 in costs for work performed

between 2007 and 2016.

Robinowitz requested an hourly rate of $450 for his own

legal services. In support of this rate, Robinowitz’s

2

Section 928(a) states:

If the employer or carrier declines to pay any

compensation on or before the thirtieth day after

receiving written notice of a claim for compensation

having been filed from the deputy commissioner, on the

ground that there is no liability for compensation within

the provisions of this chapter and the person seeking

benefits shall thereafter have utilized the services of an

attorney at law in the successful prosecution of his

claim, there shall be awarded, in addition to the award

of compensation, in a compensation order, a reasonable

attorney’s fee against the employer or carrier in an

amount approved by the deputy commissioner, Board,

or court, as the case may be, which shall be paid

directly by the employer or carrier to the attorney for

the claimant in a lump sum after the compensation

order becomes final.

33 U.S.C. § 928(a).

8 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

declaration stated that he had over 45 years’ experience as an

attorney; that his “legal practice emphasizes serious tort and

wrongful death claims and workers’ compensation claims

under the [LHWCA]”; that he has “tried over 200 jury trials,

[tried] over 350 court trials, and . . . argued over

150 appeals”; that he has “instructed at [Continuing Legal

Education] programs on trial practice and the [LHWCA]”;

and that “other lawyers regularly consult [him] for advice on

issues under the [LHWCA] as well as on trial practice in civil

cases.” Robinowitz stated that he has handled “commercial

litigation cases,” including an Employee Retirement Income

Security Act (“ERISA”) case and “a large consumer fraud

case with over 140 plaintiffs.” He further stated that

“Longshore cases involve very similar services to these cases.

They involve careful review of documents, meeting[]

frequently with both expert and lay witnesses, detailed

calculation of losses and specific legal research, which is

typical trial preparation.”

Robinowitz also submitted a 2009 declaration from

Portland practitioner Phil Goldsmith. Goldsmith stated that

he specializes in class action and financial institution

litigation, that most of his compensation comes from court-

awarded attorney’s fees, that he carefully monitors evidence

of local market rates, that he periodically testifies as an expert

witness on attorney’s fees, and that he has known Robinowitz

for many years. Goldsmith stated that “the $400 hourly rate

requested” by Robinowitz at that time was “slightly below

market rates in Portland for lawyers of comparable skill,

experience and reputation.” Goldsmith relied in part on a

survey of commercial litigation rates compiled by Serena

Morones (“Morones Survey”) in 2008. According to the

Morones Survey, “the average rate [as of January 1, 2008] for

lawyers with experience comparable to Mr. Robinowitz was

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 9

$446 an hour.” Goldsmith also noted that “attorneys that

specialize in a specific niche . . . charge a higher rate,” and

that Robinowitz had “substantial expertise” and experience in

LHWCA cases.

Robinowitz also submitted a 2009 affidavit from David

Markowitz, another Portland practitioner. Markowitz, the

state chairperson of the American College of Trial Lawyers,

recounted his experience on the subject of attorney’s fees,

including his extensive work as an expert witness, arbitrator,

and lecturer. Markowitz stated that Robinowitz had a

reputation as “a very experienced and accomplished litigator

who is able to provide highly qualified representation in

[LHWCA] cases as well as a wide variety of business and tort

litigation.” Markowitz opined that Robinowitz’s “attorney

fee rate should be set at or above the average rate for

attorneys with 30 or more years experience as shown in the

Morones Survey of Commercial Litigation Rates,” equating

to a rate of $404 per hour in 2009. He opined that

these amounts reflect the prevailing market

rates in Oregon for an attorney of

Mr. Robinowitz’s experience and reputation

and are rates commensurate with those which

he could obtain by taking other types of cases

which he is qualified to handle. I have

observed from my work in over 100 attorney

fee matters as an expert, arbitrator, mediator

and attorney in Oregon that these rates are in

line with those prevailing in Oregon for

similar services by lawyers of reasonably

comparable experience and reputation.

10 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

Robinowitz also submitted the 2010 iteration of the

Morones Survey. This survey, which includes information

from Portland law firms having more than five attorneys

specializing in commercial litigation, stated that attorneys

with 30 or more years of experience charged an average of

$431 per hour as of January 2010.

Robinowitz also submitted portions of the Oregon State

Bar 2012 Economic Survey (“2012 OSB Survey”). For

Portland attorneys with over 30 years of experience, the 2012

OSB Survey reported a median rate of $350 per hour. For

attorneys in the 75th percentile, the rate was $400 per hour;

for those in the 95th percentile, it was $500 per hour.

Robinowitz also submitted a 2014 decision by the Ninth

Circuit Appellate Commissioner awarding him fees at a rate

of $425 per hour for his services in this court. See Petitt v.

Sause Brothers, No. 12-70740 (9th Cir. Sept. 24, 2014).3 The

Appellate Commissioner looked to the 2012 OSB Survey,

which, as noted, reported an hourly rate of $400 for the top

25 percent of Portland attorneys with more than 30 years’

experience. The Appellate Commissioner rejected the

respondents’ contention that the court should instead rely on

the OSB Survey’s rates for specific practice areas

encompassing “Portland plaintiff-side civil litigators.

3

The Appellate Commissioner issued the Petitt decision pursuant to

Ninth Circuit Rule 39-1.9. Such decisions do not constitute circuit

precedent but may be treated as persuasive authority. See Orn v. Astrue,

511 F.3d 1217, 1220 (9th Cir. 2008) (noting the Appellate

Commissioner’s “substantial experience and expertise in ruling on

appellate fee requests”).

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 11

Robinowitz also submitted a 2014 decision by the BRB

awarding him a rate of $413 per hour for work performed in

2013 and $420 per hour for work performed in 2014. Petitt

v. Sause Brothers, No. 11-0351 (Ben. Rev. Bd. Apr. 29,

2014).4 The BRB relied on the 2012 OSB Survey. Rather

than looking at the survey’s rates for Portland attorneys with

at least 30 years’ experience, however, the BRB looked at the

survey’s rates for Portland attorneys practicing in two of the

survey’s 14 practice areas: plaintiff civil litigation personal

injury and plaintiff civil litigation non-personal injury. The

BRB placed Robinowitz in the top five percent of lawyers

practicing in these areas (the 95th percentile), averaged the

rates applicable to these two practice areas, and adjusted the

resulting rates for inflation, producing an hourly rate of $413

for work performed in 2013. The BRB adopted the 95th

percentile rate because, as the BRB had noted in its prior

decision in Christensen v. Stevedore Services of America, No.

03-0302, 2010 WL 2256182 (Ben. Rev. Bd. May 13, 2010),

Robinowitz had “40 years of experience and demonstrated

skill in the successful representation of many claimants

before the Board and the Ninth Circuit.”

Robinowitz’s fee declaration requested an hourly rate of

$165 for a paralegal in his office with over 20 years’

experience. In support of this rate, Robinowitz relied on the

2009 Goldsmith declaration, which opined that the $150

hourly rate Robinowitz requested at that time was “consistent

with the rates prevailing in the community.” Goldsmith

relied on the 2008 Morones Survey of Portland commercial

litigation firms, which stated that the average rate for

4

See also Petitt v. Sause Brothers, No. 13-0330, 2014 WL 993104,

at *4 (Ben. Rev. Bd. Feb. 26, 2014) (awarding Robinowitz a rate of $413

per hour for work performed in 2013).

12 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

paralegals at that time was $154 per hour. Robinowitz also

relied on the Ninth Circuit Appellate Commissioner’s 2014

decision in Petitt, which awarded Robinowitz’s paralegal a

rate of $165 an hour for work performed in 2013. The

Appellate Commissioner concluded that this rate was “in line

with currently prevailing market rates for Portland paralegal

work.”

Finally, Robinowitz requested an award of interest on

costs to account for delay in payment, noting that Seachris

had incurred the litigation expenses in 2011, five years before

Robinowitz filed his request for fees and costs.

B. Respondents’ Objections

In their objections to Robinowitz’s fee declaration,

Respondents argued that Robinowitz should be awarded fees

at a rate of $358 per hour rather than the $450 he requested.

Respondents derived this figure from the practice-area chart

in the 2012 OSB Survey rather than the years-of-experience

chart. Specifically, Respondents selected the rates applicable

to Portland attorneys practicing in two of the survey’s

14 practice areas—plaintiff civil litigation personal injury and

plaintiff civil litigation non-personal injury. For Portland

attorneys in the 75th percentile, the 2012 OSB Survey’s rates

for these practice areas were $350 and $300 respectively.

Respondents averaged these two rates, adjusted the 2011 rates

for inflation, and arrived at a proposed rate of $358 per hour.

Respondents acknowledged the Ninth Circuit Appellate

Commissioner and BRB decisions awarding Robinowitz rates

of $425 and $420 per hour. They argued, however, that these

rates should not control, because “appellate practice involves

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 13

a different set of skills than is required to practice before the

OALJ.”

Relying on Christensen v. Stevedoring Services of

America, No. 03-0302, 2010 WL 2256182 (Ben. Rev. Bd.

May 13, 2010), Respondents also contended that

Robinowitz’s other evidence of prevailing market rates—the

Goldsmith declaration, the Markowitz affidavit, and the

Morones Survey—were “not relevant,” because “services

provided by attorneys with a business litigation practice” are

not “comparable” to services performed under the LHWCA.

Finally, Respondents argued that Robinowitz’s paralegal

should be awarded a rate of $150 per hour rather than the

$165 requested. They argued that the Morones Survey was

inadequate to support Robinowitz’s requested rate because it

was “applicable to business litigation.” They further argued

that, “[i]n other fee decisions involving Mr. Robinowitz, with

similar documents and statements offered in support of the

requested rate, the paralegal was often awarded $150.00.

C. The ALJ’s Fee Decision

The ALJ addressed Robinowitz’s request for attorney’s

fees and costs in a January 2017 order. The ALJ awarded

Robinowitz $36,560.50 in attorney’s fees and awarded

Seachris $5,413.95 in costs.

The ALJ devoted the majority of her decision to the

question of Robinowitz’s hourly rate. As a threshold matter,

the ALJ concluded that Robinowitz had failed to satisfy his

initial burden of producing evidence of a prevailing market

rate for his services. First, the ALJ declined to give any

weight to the Goldsmith declaration, the Markowitz affidavit,

14 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

and the Morones Survey because (1) the information

contained in this evidence was “too old to be very useful” and

“simply too dated to be convincing,” and (2) the information

pertained to rates charged by lawyers handling commercial

litigation, which “involve[s] different skills and expertise”

than LHWCA work.

Second, the ALJ declined to give any weight to the

portion of the 2012 OSB Survey that Robinowitz submitted,

faulting him for submitting only part of the report and for

relying on the rates for all Portland practitioners, based on

years of experience, rather than relying on the rates charged

by Portland attorneys in individual practice areas involving

“the sort of trial-level skills needed in Longshore practice.”

Third, the ALJ declined to give weight to the BRB and

Ninth Circuit Appellate Commissioner’s decisions awarding

Robinowitz rates of $420 and $425 respectively for appellate

work. Echoing Respondents, the ALJ reasoned that this

evidence was “not convincing,” because “[a]ppellate-level

Longshore Act work . . . requires skills and expertise that are

different than those required to effectively litigate at OALJ.”

In sum, the ALJ rejected every piece of evidence offered

by Robinowitz in support of his requested hourly rate.

Having done so, the ALJ concluded that Robinowitz “has

failed to carry his burden of establishing entitlement to the

rates claimed in this case.” The ALJ then proceeded to

determine a reasonable hourly rate independently of the

evidence offered by Robinowitz.

In doing so, the ALJ relied almost exclusively on the

2012 OSB Survey. But rather than relying on the OSB

Survey rates based on years of experience, as Robinowitz had

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 15

proposed, the ALJ relied on the survey’s rates applicable to

particular practice areas that the ALJ deemed appropriate

comparators to LHWCA work. Specifically, the ALJ

included three of the survey’s 14 practice areas in her

analysis: plaintiff civil litigation personal injury, plaintiff

civil litigation non-personal injury, and general practice—the

practice area that applies to attorneys who devote less than

50 percent of their time to any one practice area. The ALJ

calculated a weighted average of these three practice areas,

concluded that Robinowitz fell within the 75th percentile (not

the 95th percentile, as Robinowitz advocated), and adjusted

the resulting rate to account for inflation, producing a rate of

$341.92 per hour—far less than the $450 rate proposed by

Robinowitz and less even than the $358 rate proposed by

Respondents.

The ALJ awarded Robinowitz’s paralegal a rate of $150.

The ALJ based this rate on other ALJ decisions and federal

district court decisions in the District of Oregon.

The ALJ also rejected Robinowitz’s request for an award

of interest on costs. Citing Hobbs v. Director, Office of

Workers Compensation Programs, 820 F.2d 1528 (9th Cir.

1987), abrogated on other grounds as stated in Anderson v.

Dir., OWCP, 91 F.3d 1322, 1324 (9th Cir. 1996), the ALJ

ruled that “interest may not be awarded on an award of . . .

costs under the Longshore Act.”

D. The BRB’s Decision

On appeal, the BRB concluded that the ALJ had

“addressed, and rationally rejected, the evidence submitted by

counsel in support of his requested hourly rate of $450.” In

particular, the BRB concluded that the ALJ properly “rejected

16 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

the Goldsmith declaration, the Markowitz declaration, and the

Morones Survey because they are outdated and refer to

commercial/business litigation, which the administrative law

judge found is not work similar to that practiced by counsel.”

The BRB also concluded that the “hourly rate awarded

represents a reasonable weighted average of the rates

established by the 2012 [OSB Survey] in the three practice

areas the administrative law judge rationally found to be

relevant.” After correcting an error by the ALJ in adjusting

the 2012 OSB Survey rates for inflation, the BRB awarded

Robinowitz a rate of $349.85 per hour. The BRB also agreed

with the ALJ that the LHWCA “does not permit the paying of

interest on costs” and sustained the other challenged aspects

of the ALJ’s fee order.

Seachris timely petitioned for review.

II. STANDARD OF REVIEW

“In LHWCA proceedings, the [Benefits Review] Board

must accept the ALJ’s findings unless they are contrary to

law, irrational, or unsupported by substantial evidence.” Port

of Portland v. Dir., OWCP, 932 F.2d 836, 838 (9th Cir.

1991). “We review the Board’s decisions for errors of law

and adherence to the substantial evidence standard.” Id.

Accordingly, “[w]e independently evaluate the evidence in

the administrative record to ensure the BRB adhered to the

correct standard of review.” Shirrod v. Dir., OWCP,

809 F.3d 1082, 1086 (9th Cir. 2015). “Because the Board is

not a policymaking body, we accord no special deference to

its interpretation of the LHWCA.” Port of Portland,

932 F.2d at 838.

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 17

III. DISCUSSION

A. Robinowitz’s Hourly Rate

We begin by reviewing the ALJ’s and BRB’s decisions

regarding Robinowitz’s hourly rate.

“The ‘lodestar method’ is the fundamental starting point

in determining a ‘reasonable attorney’s fee,’ and this is true

as to computation of attorney’s fees under § 928(a) of the

LHWCA.” Christensen v. Stevedoring Servs. of Am.,

557 F.3d 1049, 1053 (9th Cir. 2009) (citation omitted) (citing

City of Burlington v. Dague, 505 U.S. 557, 562 (1992)).

“This method ‘requires the court to multiply the number of

hours reasonably expended on the litigation by a reasonable

hourly rate.’” Id. at 1053 n.4 (quoting Tahara v. Matson

Terminals, Inc., 511 F.3d 950, 955 (9th Cir. 2007)).

“‘[A] reasonable attorney’s fee’ is one that is ‘adequate to

attract competent counsel.’” Blum v. Stenson, 465 U.S. 886,

897 (1984) (quoting S. Rep. No. 94-1011, at 6 (1976)). “[I]t

is necessary,” therefore, “that counsel be awarded fees

commensurate with those which they could obtain by taking

other types of cases,” Christensen, 557 F.3d at 1053 (quoting

Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 981 (9th Cir.

2008)), and that fees be “sufficient to induce a capable

attorney to undertake the representation of a meritorious . . .

case,” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552

(2010).

To ensure adequate compensation, hourly rates “are to be

calculated according to the prevailing market rates in the

relevant community,” Blum, 465 U.S. at 895, meaning the

“rates charged to clients of private law firms,” Miele v. N.Y.

18 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

State Teamsters Conf. Pension & Ret. Fund, 831 F.2d 407,

409 (2d Cir. 1987). Of course, “there is no private market for

attorney’s fees under the LHWCA.” Christensen, 557 F.3d

at 1053. LHWCA attorneys do not, and are not permitted to,

enter into private fee agreements with their clients. Id. (citing

33 U.S.C. § 928(e)).

Hourly rates under the LHWCA, therefore, must be based

on the rates charged to clients of private law firms for similar

work. As Blum explains, the rates awarded must be “in line

with those prevailing in the community for similar services

by lawyers of reasonably comparable skill, experience, and

reputation.” 465 U.S. at 896 n.11. This ensures that

LHWCA attorneys receive the same compensation as their

private-practice counterparts. See Missouri v. Jenkins by

Agyei, 491 U.S. 274, 286 (1989) (“A reasonable attorney’s

fee under § 1988 is . . . comparable to what ‘is traditional

with attorneys compensated by a fee-paying client.’” (quoting

S. Rep. No. 94-1011, at 6 (1976))).

“The evidentiary burdens governing fee motions are well

established.” United States v. $28,000.00 in U.S. Currency,

802 F.3d 1100, 1105 (9th Cir. 2015).

The applicant has an initial burden of

production, under which it must “produce

satisfactory evidence” establishing the

reasonableness of the requested fee. This

evidence must include proof of market rates in

the relevant community (often in the form of

affidavits from practitioners), and detailed

documentation of the hours worked. If the

applicant discharges its legal obligation as to

the burden of production, the court then

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 19

proceeds to a factual determination as to

whether the requested fee is reasonable. In

the usual case, that factual determination will

involve considering both the proponent’s

evidence and evidence submitted by the fee

opponent “challenging the accuracy and

reasonableness of the facts asserted by the

prevailing party.”

Id. (citations omitted) (first quoting Blum, 465 U.S. at 896

n.11, and then quoting Camacho, 523 F.3d at 980).

We conclude that the ALJ erred in applying these

principles.

1. The ALJ erred by concluding that Robinowitz

failed to satisfy his initial burden of production

The ALJ concluded that Robinowitz failed to satisfy his

initial burden of production. This conclusion is not supported

by substantial evidence.

Robinowitz presented substantial evidence that his

requested rate of $450 an hour, in 2016, was “in line with

those prevailing in the community for similar services by

lawyers of reasonably comparable skill, experience, and

reputation.” Blum, 465 U.S. at 896 n.11. This evidence

included, among other things: affidavits from two

experienced practitioners supporting rates of $400 and $404

respectively in 2009; the 2012 OSB Survey reporting that

Portland attorneys with over 30 years’ experience billed

between $350 (median) and $400 (75th percentile) in 2011;

a 2014 Ninth Circuit Appellate Commissioner order awarding

Robinowitz $425 for work performed in 2012 and 2013; and

20 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

a 2014 BRB decision awarding Robinowitz $413 for work

performed in 2013 and $420 for work performed in 2014.

This evidence was more than sufficient to carry

Robinowitz’s initial burden of production. The ALJ’s

contrary conclusion is not supported by substantial evidence.

The ALJ’s concerns at most go to the weight of the evidence,

not its sufficiency.

2. The ALJ erred by rejecting Robinowitz’s evidence

of prevailing market rates as outdated

The ALJ rejected the Goldsmith declaration, the

Markowitz affidavit, and the Morones Survey as “too old to

be very useful” and “simply too dated to be convincing.” We

hold that this conclusion is not supported by substantial

evidence.

It is true, of course, that fee awards must be “based on

current rather than merely historical market conditions.”

Christensen, 557 F.3d at 1055. In Bell v. Clackamas County,

341 F.3d 858, 869 (9th Cir. 2003), for example, we held that

“it was an abuse of discretion . . . to apply market rates in

effect more than two years before the work was performed.”

And it is also true that the parties should provide, and the

adjudicator should rely on, the most current information

available.5 Evidence of historical market conditions,

however, is nevertheless relevant evidence of current market

conditions, and reliance on evidence of historical market

conditions is particularly appropriate when it is the most

5

Robinowitz would be well advised, in future cases, to exercise more

care to offer current practitioner fee data.

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 21

current information available. The ALJ therefore erred by

rejecting Robinowitz’s evidence on this basis.

ALJs, moreover, must treat the parties’ evidence

evenhandedly. Here, both parties, and the ALJ herself, relied

on dated evidence. Robinowitz relied on 2009 declarations

from Goldsmith and Markowitz, the 2010 Morones Survey,

and the 2012 Oregon State Bar Survey, which the ALJ

criticized as incomplete. Respondents, in turn, relied on

excerpts of the 2012 Oregon State Bar Survey. The ALJ

rejected Robinowitz’s evidence as “too dated to be

convincing”) but ultimately relied on the very same 2012

Oregon State Bar Survey as the linchpin of her hourly rate

determination. By the time the ALJ issued her fee decision

in January 2017, the 2011 rates in the 2012 OSB Survey were

six years old. The ALJ nevertheless relied on the survey by

adjusting the 2011 data for inflation—appropriately so. But

the ALJ declined to make similar adjustments to

Robinowitz’s evidence. We see no reason why she should

not have taken the same approach to Robinowitz’s evidence,

and it was error not to do so.

3. The ALJ erred by rejecting Robinowitz’s evidence

of commercial litigation rates

The ALJ also rejected the Goldsmith, Markowitz, and

Morones evidence because they concern rates charged by

attorneys handling commercial litigation. The explanations

the ALJ and the BRB offered for rejecting this evidence are

unsupported.

The ALJ, for instance, plainly erred by rejecting this

evidence on the ground that “commercial litigation . . . is not

the market that Petitioner operates in.” The question is not

22 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

whether Robinowitz qualifies as a commercial litigator; it is

whether the rates charged by commercial litigators are

relevant comparators—i.e., whether the rates involve “similar

services by lawyers of reasonably comparable skill,

experience, and reputation.” Blum, 465 U.S. at 896 n.11.

Turning to that question, the ALJ concluded that

commercial litigation is not similar to the kind of LHWCA

work performed in this case:

Longshore trial work is relatively

straightforward litigation. Effective practice

requires familiarity with the peculiar contours

of the Act and an ability to understand and

work with medical evidence. The process is

informal. There are no jury trials. The rules

of evidence are considerably relaxed. The

rules of procedure are simple, and

enforcement is forgiving. Presumptions

simplify the case and assist claimants greatly.

Hearings, when necessary, are usually short.

Never are there multiple claimants joined in

the same claim for adjudication. There may

be multiple employers and carriers, but the

interests of the respondents are usually

adverse. Except in unusual cases, no showing

of intent, negligence, or culpability is

required.

The sorts of skills and experience

possessed by attorneys in Longshore work are

not the same as the sorts of skills and

experience necessary to engage in mergers

and acquisitions, intellectual property law, or

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 23

complex and class action litigation.

Accordingly, the market rates for such legal

work are not very informative as to a proxy

market for Longshore work.

The ALJ’s analysis is valid up to a point. There are

differences between commercial litigation and LHWCA

work. And it is reasonable, in identifying appropriate

comparators, to distinguish between complex and non-

complex litigation. E.g., DL v. District of Columbia,

924 F.3d 585, 594 (D.C. Cir. 2019). As we explained in

Davis v. City & County of San Francisco, 976 F.2d 1536 (9th

Cir. 1992), opinion vacated in part on other grounds,

984 F.2d 345 (9th Cir. 1993), “[b]oth the Supreme Court and

this court have made clear that [reasonable hourly] rates

should be established by reference to the fees that private

attorneys of an ability and reputation comparable to that of

prevailing counsel charge their paying clients for legal work

of similar complexity.” Id. at 1545 (emphasis added).

Ultimately, however, the ALJ’s reasoning fails for two

distinct reasons. First, the ALJ appears to have conflated

commercial litigation and complex litigation. These two

concepts are not equivalent. Although some commercial

litigation qualifies as complex litigation, other commercial

litigation does not, e.g., a straightforward commercial debt

collection case. Cf. DL, 924 F.3d at 594 (rejecting the

suggestion that all Individual with Disabilities Education Act

(“IDEA”) cases qualify as non-complex litigation merely

because some IDEA cases do).

Second, the ALJ’s analysis proves too much. If

commercial litigation differs from “straightforward” and

“informal” LHWCA work, then so too do plaintiff civil

24 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

litigation work and litigation handled by general practitioners.

Yet the ALJ relied on the market rates paid in these practice

areas to establish Robinowitz’s hourly rate. We can discern

no rational basis for the ALJ’s selective concerns about the

differences between formal and informal litigation. Plainly,

an ALJ may not reject commercial litigation as a comparator,

arbitrarily, simply because commercial litigation attorneys

may charge more than other attorneys. As we explained in

Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir.

2008), the adjudicator’s function “is not to ‘hold the line’ at

a particular rate.”

In sustaining the ALJ’s rejection of Robinowitz’s

evidence of commercial litigation rates, the BRB cited its

earlier decision in Christensen v. Stevedoring Services of

America, No. 03-0302, 2009 WL 4505490 (Ben. Rev. Bd.

2009). In Christensen, the BRB held that “rates paid to

commercial/business litigators in Portland do not provide an

appropriate basis for setting a market rate,” because “a

workers’ compensation practice and a business litigation

practice cannot be viewed as ‘similar.’” Id. at *2. The BRB

offered only a single rationale for treating these two practice

areas as dissimilar: “business litigation routinely requires the

work of a team of attorneys,” such that “certain work is

delegated to paralegals or less experienced attorneys at a

lower cost to the client; as claimant’s counsel is a solo

practitioner he cannot delegate work in this manner, nor could

he expect a client to pay him $400 per hour to perform all the

work himself.” Id.6

6

The BRB also noted the employer’s contention that LHWCA work

“is not comparable” to commercial litigation because “there are no lengthy

trials, and never any jury trials, in longshore cases,” and “the rules of

evidence and procedure are relaxed in administrative hearings.” Id. It is

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 25

Even assuming these distinctions were persuasive in

Christensen, they do not apply here. The record plainly

shows that Robinowitz does delegate work to less

experienced attorneys and paralegals: in fact, his fee

declaration sought fees not only for his own work (at $450 an

hour) but also for an associate attorney (at $225 an hour) and

a paralegal (at $165 an hour). Furthermore, although the

BRB noted that LHWCA work differs from commercial

litigation because it does not involve jury trials or strict

evidentiary rules, these same differences exist between

LHWCA work and the practice areas that the ALJ and the

BRB relied upon to determine Robinowitz’s hourly

rate—plaintiff civil litigation and litigation by general

practitioners. These distinctions, therefore, do not support the

ALJ’s methodology.

4. The ALJ erred by rejecting Robinowitz’s evidence

from the 2012 Oregon State Bar Survey

The Oregon State Bar Survey reports hourly rates in two

ways. One chart reports the rates charged by Portland

attorneys based on their years of experience, irrespective of

practice area. The second reports the rates charged by

Portland attorneys based on their practice areas, irrespective

of their years of experience. Robinowitz relied on the chart

reporting data based on years of experience, and the ALJ

rejected that evidence on the ground that relying on it would

“force me to make a one dimensional fee award by omitting

evidence of other [relevant] factors.” The ALJ then

proceeded to rely on the chart reporting rates by practice area

in determining Robinowitz’s hourly rate.

not clear, however, whether the BRB adopted this rationale advanced by

the employer.

26 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

The ALJ’s rejection of this evidence is not supported by

substantial evidence. First, both charts rely on only a single

factor: in one, that factor is years of experience, and in the

other, that single factor is practice area. Although the ALJ

rejected Robinowitz’s survey evidence as “one dimensional,”

she proceeded to base her rate determination on the equally

one dimensional chart reporting rates by practice area.

Second, even assuming arguendo that rates based on practice

area are more probative than rates based on years of

experience, the latter rates are at least relevant. Indeed, our

case law expressly approves of using the OSB Survey’s

years-of-experience chart to determine reasonably hourly

rates. See Shirrod, 809 F.3d at 1089 (citing Ramsey v.

Cascade Gen., Inc., No. 11-0875, 2012 WL 3903607, at *2–4

(Ben. Rev. Bd. Aug. 29, 2012)). The Ninth Circuit Appellate

Commissioner, moreover, relied on the years-of-experience

chart in awarding Robinowitz fees in Petitt.

5. The ALJ’s decision to place Robinowitz in the 75th

percentile must be vacated

Robinowitz also challenges the ALJ’s decision to place

him within the 75th percentile of attorneys in the plaintiff

civil litigation and general practice areas under the 2012 OSB

Survey. He argues that he should have been placed in the

95th percentile. It is undisputed that Robinowitz is a highly

experienced attorney, with vast experience and expertise in

LHWCA cases. The ALJ, therefore, reasonably could have

placed Robinowitz in the 95th percentile, as both this court

and the BRB have done on other occasions, albeit with

respect to his appellate work. On the other hand, the BRB

has placed Robinowitz within the 75th percentile on several

other occasions with respect to his trial-level work. This was

a judgment call that the ALJ could reasonably have resolved

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 27

either way. We nonetheless vacate the ALJ’s decision to

place Robinowitz in the 75th percentile because that decision

appears 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.

In our prior decision setting aside the ALJ’s denial of

benefits, we held that (1) the ALJ “unreasonably

characterized Dr. Kafrouni’s testimony as ‘ignor[ing]’ and

‘dismiss[ing]’ [Cloyd] Seachris’s other health conditions

when Dr. Kafrouni did acknowledge that other conditions in

addition to cervical myelopathy contributed to Seachris’s

immobility and diabetes”; and (2) the ALJ “also erred in

finding that Dr. Kafrouni’s opinion was unsubstantiated by

medical records when the preponderance of the evidence

supports Dr. Kafrouni’s opinion.” Seachris, 538 F. App’x

at 815. Based on these errors, we held that the “ALJ’s

credibility determination as to Dr. Kafrouni’s testimony was

‘patently unreasonable’ and ‘conflict[s] with the clear

preponderance of the evidence.’” Id. at 814. We therefore

concluded that the “ALJ’s determination that the claimant did

not establish that the cervical myelopathy caused by Cloyd

Seachris’s . . . 1979 work injury could have accelerated the

immobility and diabetes that contributed to his death is

unsupported by substantial evidence of the record considered

as a whole.” Id. (emphasis added). Despite the clarity of our

instructions that the ALJ’s credibility determination was

patently unreasonable and that the ALJ’s finding of no

causation lacked substantial evidence support, the ALJ on

remand issued an order requiring Seachris (1) “to identify

those parts of Dr. Kafrouni’s testimony which acknowledged

other medical conditions suffered by the decedent”; and

(2) “to identify the medical records in evidence that support

Dr. Kafrouni’s opinion.” Given that these two points mirror

28 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

exactly the two defects we had identified in our prior ruling

rejecting the ALJ’s credibility determination, the ALJ’s order

effectively required Seachris to file a brief setting out the

evidence that justified our reversal. Robinowitz, as counsel

for Seachris, reasonably declined this invitation to second-

guess our reasons for ruling in his client’s favor and instead

filed a short brief that reasonably took the position that “[i]n

the present case, the Ninth Circuit necessarily held that

Dr. Kafrouni’s interpretation of the medical evidence was the

only permissible one, and that his opinion determines the

issue of causation as a matter of law.”

Although the ALJ ultimately awarded benefits, the ALJ’s

subsequent fee order devotes several single-spaced pages to

expressing the ALJ’s palpable anger with Robinowitz’s

remand brief, stating that, by filing it, Robinowitz “decided

that he needs to discern whether my briefing orders are wise

in order to determine whether he needs to comply”; that he

had thereby “appoint[ed] himself as a sort of interlocutory

appellate judge and nullifies orders deemed unwise”; that

“this is not acceptable behavior for an attorney”; that the ALJ

“could have initiated a contempt proceeding against

[Robinowitz]” but “decided that would simply prolong the

litigation”; and that this behavior “would be relevant to the

fee decision.” There is more than a little irony to these

comments, given that the premise of the ALJ’s order was

apparently that the ALJ was going to re-examine the

correctness of our holdings. We perceive nothing

improper—much less contumacious—in Robinowitz’s

pointing out that the ALJ’s order was inconsistent with our

mandate. Moreover, the ALJ’s order confirms that

Robinowitz’s remand brief played a role in her rating of him

at the 75th percentile, because the ALJ stated that this

“troubling conduct,” by itself, would “suggest[] a rating at the

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 29

median or lower” and was “not a trial strategy that is adopted

by litigators in the top 5% of the bar.” In light of these

comments, we cannot credit the ALJ’s later assertion, in

denying reconsideration, that this episode “played no role” in

the fee determinations; it obviously did. The BRB clearly

erred in accepting that assertion at face value, and a remand

is necessary so that the proper percentile rating can be

reexamined afresh.

6. The ALJ’s decision to include the “general”

practice area in her analysis is not supported by

substantial evidence

Robinowitz argues that the ALJ erred by including the

2012 OSB Survey’s general practice area—applicable to

attorneys who do not devote at least 50 percent of their time

to any one practice area—in her analysis. Robinowitz points

out that he is a specialist, rather than a generalist, and that the

ALJ may have included the general practice area in the

analysis for the improper purpose of holding down his hourly

rate.

Robinowitz’s argument is well-taken. The ALJ offered

no persuasive reason for including the general practice rate in

her analysis, and the wide disparity between this rate ($268)

and the other rates relied on by the ALJ ($350 and $300)

strongly suggests that the ALJ may indeed have been

motivated by an improper purpose.7 We are struck in

particular by the ALJ’s decision to exclude commercial

7

These are the 75th percentile rates for the three practice areas

selected by the ALJ from the 2012 OSB Survey: $300 for plaintiff civil

litigation non-personal injury, $350 for plaintiff civil litigation personal

injury, and $268 for general practice.

30 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

litigation as a comparator while including general practice as

a comparator. There is no evidence in this record to suggest

that LHWCA attorneys in general, or Robinowitz in

particular, are comparable to general practitioners in skills,

experience, or reputation, but dissimilar to commercial

litigators. In fact, general practice, by definition, excludes

attorneys, like Robinowitz, who specialize (devote more than

50% of their time) in litigation. And, of course, there is

abundant evidence in the record to show that Robinowitz was

a specialist, with significant experience and success in

handling LHWCA cases. We therefore agree with

Robinowitz that the record does not support the ALJ’s

inclusion of this practice area in her analysis.

* * *

In sum, we hold that the ALJ and the BRB committed

legal error in determining Robinowitz’s hourly rate and that

the ALJ’s determination of Robinowitz’s hourly rate is not

supported by substantial evidence. We grant the petition for

review on this issue and remand for further proceedings

consistent with this opinion. We note that the Oregon State

Bar has published an updated survey. The 2017 OSB Survey

reports that Portland attorneys with more than 30 years’

experience charged a median rate of $425 per hour in 2016.

For attorneys in the 75th percentile, the average rate was

$495 per hour. These updated rates, which the BRB should

take into account on remand, provide further support for

Robinowitz’s requested rate.

B. Paralegal’s Hourly Rate

We next address Seachris’ contention that the ALJ erred

by awarding Robinowitz’s paralegal a rate of $150 per hour

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 31

rather than $165 per hour as requested. The ALJ based the

$150 rate on two factors: rates awarded by ALJs in other

LHWCA cases; and rates awarded by the federal district court

in the District of Oregon. We hold that the ALJ erred.

First, the ALJ erred by relying almost exclusively on the

rates awarded by other ALJs. As we emphasized in

Christensen, “the BRB should not be allowed to define

‘prevailing market rate’ in such a way as to define the

‘market’ only in terms of what has been awarded by ALJs

and the BRB under the LHWCA.” 557 F.3d at 1054; accord

Van Skike v. Dir., OWCP, 557 F.3d 1041, 1046 (9th Cir.

2009).

Second, the ALJ’s reliance on the district court’s awards

is flawed because the decisions upon which the ALJ relied set

paralegal rates based on survey data pertaining to the western

United States as a whole, rather than the relevant Portland

community. Holdner v. Coba, No. 3:15-CV-2039-AC, 2016

WL 6662687, at *6 (D. Or. Nov. 9, 2016); Pac. Coast Fruit

Co. v. Ron Squires dba Four Seasons Farmers Mkt., No.

3:16-CV-00463-BR, 2016 WL 4443166, at *3 (D. Or. Aug.

19, 2016). These decisions therefore do not provide a proper

foundation for determining the prevailing market rate in the

Portland area. See Shirrod, 809 F.3d at 1089 (“Because the

lodestar method requires a ‘reasonable attorney’s fee’ to be

based on market rates in the ‘relevant community,’ we hold

that the BRB erred in affirming an attorney’s-fee award based

on a proxy market rate not tailored to the ‘relevant

community,’ which, in this case, [was] Portland.”).

Robinowitz provided the only evidence of market rates

for Portland paralegals. Based “on information from Phil

Goldsmith and Serena Morones and [his] own knowledge,”

32 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

Robinowitz stated that “[a] reasonable current hourly rate for

[his paralegal’s] services is $165.” Goldsmith, in turn,

testified in 2009 that “the average rate for paralegals was

$154 an hour” in the 2008 Morones Survey of commercial

litigation rates. Respondents presented no contrary evidence.

On this record, therefore, the evidence supported a rate of

$165 per hour. We note that this is the rate that the Ninth

Circuit Appellate Commissioner awarded to Robinowitz’s

paralegal in the 2014 Petitt decision.8

Accordingly, we grant the petition for review on this

issue. On remand, the BRB shall award Robinowitz’s

paralegal a rate of $165 per hour.

C. Reasonable Hours

As noted earlier, see supra at 27–28, after we previously

held that the ALJ’s credibility determination as to

Dr. Kafrouni’s testimony was “patently unreasonable,”

Seachris, 538 F. App’x at 814, the ALJ on remand ordered

Seachris to file a supplemental brief addressing matters that

this court had already decided. Accordingly, rather than

addressing the issues called for in the ALJ’s supplemental

briefing order, Robinowitz used his supplemental brief to take

issue with the ALJ’s interpretation of this court’s decision,

arguing that “[t]he Ninth Circuit did not remand this case for

further consideration of Dr. Kafrouni’s testimony . . . . It

necessarily remanded for an order allowing widow’s benefits

to Ms. Seachris . . . .”

8

Nothing in the record suggests that the tasks delegated to a paralegal

are so dissimilar in trial versus appellate work as to justify different rates

for paralegals in the trial and appellate phases of litigation.

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 33

In his subsequent fee application, Robinowitz sought to

recover 2.25 hours for preparation of this supplemental brief.

The ALJ disallowed one half of that time—1.125 hours—on

the ground that Robinowitz’s brief was “non-responsive” to

the supplemental briefing order. The ALJ nevertheless

acknowledged that “[i]t was proper to argue that Claimant’s

view was that I needed to only enter judgment in her favor.”

We hold that the ALJ erred by reducing Robinowitz’s

hours on this ground. “A district court should exclude from

the lodestar amount hours that are not reasonably expended

because they are ‘excessive, redundant, or otherwise

unnecessary.’” Van Gerwen v. Guarantee Mut. Life Co.,

214 F.3d 1041, 1045 (9th Cir. 2000) (quoting Hensley v.

Eckerhart, 461 U.S. 424, 434 (1983)). Here, Robinowitz’s

hours were neither excessive, redundant, nor unnecessary. As

the ALJ conceded, Seachris appropriately used her

supplemental brief to present her interpretation of the scope

of the remand. The ALJ’s denial of fees for this time,

therefore, is not supported by substantial evidence.

The ALJ’s anger over Robinowitz’s position on the

remand permeates the entire fee order, and it appears that the

ALJ improperly reduced Robinowitz’s fees for preparing the

supplemental brief as a sanction. Although the ALJ later

asserted that Robinowitz’s performance in this regard played

“no role” in the fee award, the record strongly suggests

otherwise.

We grant the petition for review on this issue.

34 SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY

D. Interest on Costs

The ALJ and the BRB erred by holding that the LHWCA

does not permit an award of interest on costs to account for

delay in payment. The Supreme Court has made clear that

interest is available in limited circumstances under federal

fee-shifting statutes. See Perdue, 559 U.S. at 555 (“[A]n

enhancement may be appropriate if the attorney’s

performance includes an extraordinary outlay of expenses and

the litigation is exceptionally protracted. . . . [T]he amount of

the enhancement must be calculated using a method that is

reasonable, objective, and capable of being reviewed on

appeal, such as by applying a standard rate of interest to the

qualifying outlays of expenses.”). Our decision in Hobbs,

820 F.2d at 1530–31, upon which the ALJ relied, addressed

post-judgment interest and thus has no bearing on the

question presented here. We therefore grant the petition for

review on this issue. On remand, the BRB should determine

whether an award of interest on costs is appropriate because

of the “exceptionally protracted” period that this case has

been pending—having been filed in 2005—in which costs

were incurred between 2007 and 2016, a period five to

fourteen years ago.9

E. Reassignment

The tone of the ALJ’s decision and the manner in which

the ALJ evaluated the evidence suggest that the ALJ may not

be able to provide Robinowitz with a fair and impartial

hearing on remand. Accordingly, we sua sponte direct that

9

Seachris, of course, has the right to update her application for fees

and costs incurred since her initial application was filed in 2016, five years

ago.

SEACHRIS V. BRADY-HAMILTON STEVEDORE COMPANY 35

the BRB reassign this matter to a different ALJ on remand to

avoid the appearance of partiality. See Smolniakova v.

Gonzales, 422 F.3d 1037, 1054 (9th Cir. 2005) (“We further

direct the BIA not to return the case to [Immigration Judge]

Anna Ho.”); Nuru v. Gonzales, 404 F.3d 1207, 1229 (9th Cir.

2005) (“Given his comments during the hearing and our

strikingly different appraisal of the record, we order that the

case be assigned to a different immigration judge who will

afford Nuru the impartiality to which all applicants are

entitled.”); Reed v. Massanari, 270 F.3d 838, 845 (9th Cir.

2001) (“We remand with instructions that the matter be

assigned to a different ALJ.”); Milburn Colliery Co. v. Hicks,

138 F.3d 524, 537 (4th Cir. 1998) (“Finding the ALJ made

several errors of law including failing to consider all of the

relevant evidence and to adequately explain his rationale for

crediting certain evidence, we conclude that review of this

claim requires a fresh look at the evidence, unprejudiced by

the various outcomes of the ALJ and the [Benefits Review]

Board’s orders below. Accordingly, we reverse and direct the

Board promptly to remand to a new ALJ . . . .”).

IV. CONCLUSION

We grant the petition for review and remand for

proceedings consistent with this opinion.

PETITION GRANTED and REMANDED.