Angela Aguilar v. Navy Exchange Service Command

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 2020
• Docket: 19-70397
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 18 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGELA C. AGUILAR, No. 19-70397

Petitioner, BRB No. 18-0327

v. MEMORANDUM* NAVY EXCHANGE SERVICE COMMAND; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,

Respondents.

On Petition for Review of an Order of the Benefits Review Board

Submitted February 4, 2020** Honolulu, Hawaii

Before: FARRIS, McKEOWN, and BADE, Circuit Judges.

Petitioner Angela Aguilar seeks review of the Benefits Review Board’s

order denying reconsideration of an Administrative Law Judge’s attorney’s fees

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). award. We review the ALJ’s selection of a geographic area as the “relevant

community” in calculating attorney’s fees for abuse of discretion, and we do not

overturn that selection if it is “adequately justified and supported by substantial

evidence.” Shirrod v. Director, OWCP, 809 F.3d 1082, 1087, 1088 n.5 (9th Cir.

2015) (citing Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049, 1055 (9th

Cir. 2009)). We deny the petition for review.

An attorney’s hourly rate is calculated based on prevailing market rates in

the relevant community. Id. at 1086 (quoting Christensen, 557 F.3d at 1053). In

Shirrod, we explicitly declined to impose a bright line rule defining the relevant

community in Longshore Act cases, leaving it instead to the ALJ and Board to

determine the relevant community on an individualized basis. 809 F.3d at 1088

n.5. That decision shall stand “as long as [it] is adequately justified and supported

by substantial evidence.” Id.

Here, the hearing took place in Honolulu at Aguilar’s request. Aguilar lived

in Hawai’i, worked there, was injured on the job there, and received medical

treatment there. Her counsel’s website indicates that he maintains an office in

2 Honolulu. It was not error to consider Hawai’i to be the relevant community when

calculating attorney’s fees.1

Even if the ALJ erred by raising her concerns regarding the relevant

community for the calculation of attorney’s fees without notice, we may overturn

that decision “only if it reasonably can be concluded that absent such error there

would have been a contrary result.” Haw. Stevedores, Inc. v. Ogawa, 608 F.3d 642,

648 (9th Cir. 2010). It is unreasonable to conclude that with notice and the

opportunity to respond, the ultimate fee award would have been different.

The ALJ did not err by denying Aguilar’s request for costs. NEXCOM

objected to Aguilar’s lack of documentation regarding costs. Aguilar had one year

and eight months to respond to that objection, and she did not. There is no

requirement that an ALJ give notice that some documentation of requested costs is

necessary. The award was reasonable and supported by substantial evidence.

DENIED.

1 Aguilar fails to persuade the court that other competent counsel was unavailable for this case in Hawai’i. See Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992). 3