                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 07 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



HEIDI EBERLY-SHERMAN,                            No. 10-73713

              Petitioner,                        OWCP No. 14-134194

  v.
                                                 MEMORANDUM *
DEPARTMENT OF ARMY/NAF;
DIRECTOR, OFFICE OF WORKERS
COMPENSATION PROGRAMS,

              Respondents.



                     On Petition for Review of an Order of the
                        Office of Workers Comp Program

                     Argued and Submitted February 15, 2012
                            San Francisco, California

Before: HUG, B. FLETCHER, and PAEZ, Circuit Judges.

       Heidi Eberly-Sherman petitions for review of the final order of the Benefits

Review Board (“BRB”) affirming an administrative law judge’s (“ALJ”) award of

attorney’s fees to her attorney, Charles Robinowitz, pursuant to the Longshore and



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Harbor Workers’ Compensation Act (“Longshore Act”), 33 U.S.C. § 901 et seq.

Petitioner contends that the BRB erred in affirming a $309.00 hourly rate for

Robinowitz and a $110.00 hourly rate for Robinowitz’s legal assistant. Because

the parties are familiar with the factual and procedural history of this case, we need

not recount it here. We have jurisdiction under 33 U.S.C. § 921(c), and we deny

the petition.

       “[T]he burden is on the fee applicant to produce satisfactory

evidence . . . that the requested rates are in line with those prevailing in the

community for similar services by lawyers of reasonably comparable skill,

experience and reputation.” Christensen v. Stevedoring Servs. of Am., 557 F.3d

1049, 1053 (9th Cir. 2009) (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11

(1984)). The BRB did not err in concluding that Robinowitz failed to meet this

burden. See Van Skike v. Dir., Office of Workers’ Comp. Programs, 557 F.3d

1041, 1045-46 (9th Cir. 2009).

       The BRB did not err in affirming the ALJ’s decision to consider the hourly

rates of workers’ compensation attorneys in setting Robinowitz’s rate. A major

consideration in determining an appropriate fee award under the Longshore Act is

the market rate of attorneys employing legal skills similar to those required by

Longshore practice. See Christensen, 557 F.3d at 1053. Here, the ALJ considered


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rates charged by workers’ compensation attorneys in calculating Robinowitz’s

hourly rate because the ALJ determined that workers’ compensation practice

requires legal skills similar to those required by Longshore practice. Substantial

evidence supports this finding. This is especially true because Longshore practice

is a form of workers’ compensation practice. See 33 U.S.C. § 902(2).

      The BRB did not err in affirming the ALJ’s refusal to place Robinowitz in

the top ten percent of his peers. The ALJ had an opportunity to observe

Robinowitz’s filings in the fee proceeding and had access to the record for the

case. The record included an order by a different ALJ, which explained that

Robinowitz had made “sophomoric,” “careless,” and “egregious” errors in his

representation of Eberly-Sherman. While the BRB modified that order, it did not

set aside the ALJ’s findings regarding the quality of Robinowitz’s work.

Therefore, substantial evidence supports the ALJ’s refusal to place Robinowitz in

the top ten percent of his peers. Additionally, the ALJ’s consideration of the

quality of Robinowitz’s representation in the case does not violate Perdue v. Kenny

A. ex rel. Winn, ––– U.S.––––, 130 S. Ct. 1662 (2010), because unlike the district

court in Perdue, the ALJ in this case considered representation quality only once

when determining the reasonable hourly rate. See id. at 1674–76 (holding that the

district court erred by enhancing a lodestar award by 75%, based on performance,


                                          3
because the lodestar method incorporates hourly rates based upon attorney market

value).




        The BRB also did not err in affirming the ALJ’s consideration of Oregon

market rates instead of Portland market rates. An attorney’s fee is “calculated

according to the prevailing market rates in the relevant community.” Christensen,

557 F.3d at 1053 (quoting Blum, 465 U.S. at 895). “The relevant community is

generally defined as the forum in which the district court sits.” Van Skike, 557

F.3d at 1046 (internal quotation marks and citation omitted). In this case, the

district court is located in Portland, Oregon, but its jurisdiction includes the entire

state of Oregon. In light of Mr. Robinowitz’s failure to provide satisfactory

evidence establishing that the hourly rate for attorneys providing similar services to

Longshore Act work is higher in Portland than it is in the rest of Oregon,

substantial evidence supports the ALJ’s reliance on Oregon fee rates.

        Finally, because Robinowitz failed to carry his burden to produce

satisfactory evidence supporting his requested legal assistant rate, the BRB did not

err by affirming the awarded legal assistant rate. See Christensen, 557 F.3d at

1055.

        PETITION DENIED.


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