David Orpilla v. Hawaii Stevedores, Inc

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 6, 2020
• Docket: 18-72606
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 6 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID ORPILLA, No. 18-72606

Petitioner, BRB No. 18-0079

v. MEMORANDUM* HAWAII STEVEDORES, INCORPORATED; et al.,

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 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,

* 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). 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.

DENIED.