                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAY 25 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

CATHY MCDONALD,                                 No.   15-73525

                Petitioner,                     BRB No. 2014-0400

 v.

NAVY EXCHANGE SERVICE                           MEMORANDUM *
COMMAND, et al.,

                Respondents.

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

                               Submitted May 15, 2017**
                               San Francisco, California

Before: W. FLETCHER and TALLMAN, Circuit Judges, and HUCK,*** District
Judge.

      Petitioner Cathy McDonald petitions for review of a Decision and Order of

the Benefits Review Board (the “Board”) largely affirming the Administrative Law


      *
             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).
      ***
            The Honorable Paul C. Huck, United States District Judge for the
Southern District of Florida, sitting by designation.
Judge’s (“ALJ”) Attorney’s Fee Order in a case arising under the Longshore and

Harbor Workers’ Compensation Act (the “Longshore Act”). We have jurisdiction

under 33 U.S.C. § 921(c), and we deny McDonald’s petition for review.

      The Board must accept the ALJ’s findings “unless they are contrary to law,

irrational, or unsupported by substantial evidence in the record considered as a

whole.” Marine Power & Equip. v. Dep’t of Labor, 203 F.3d 664, 667 (9th Cir.

2000). We, in turn, review the Board for “errors of law and for adherence to the

statutory standard governing the [Board’s] review.”        Haw. Stevedores, Inc. v.

Ogawa, 608 F.3d 642, 648 (9th Cir. 2010) (internal citation omitted). “[W]e will

not disturb the decision of an ALJ because of a harmless error.” Id.

      McDonald argues that the Board acted arbitrarily and capriciously and abused

its discretion in upholding the ALJ’s calculation of her attorney, Matthew

Witteman’s, attorney’s fee pursuant to 33 U.S.C. § 928(a). McDonald makes two

primary arguments. The first is that the Board erred in affirming the ALJ’s decision

setting Witteman’s hourly rate at $305, because the ALJ disregarded critical

evidence, rejected other evidence in a way that violated his duty of impartiality, and

applied an inaccurate view of the law. The second is that the Board erred by

upholding the ALJ’s disallowance of approximately 40 percent of Witteman’s

claimed hours, because the ALJ applied an inaccurate view of the law, made clearly




                                          2
erroneous findings of fact, and failed to explain his reasoning with the required level

of specificity.

       We reject McDonald’s contentions of error. The record supports the Board’s

Decision that Witteman did not carry his burden of establishing that his proposed

rate of $400 was “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). The Board

correctly held that the ALJ acted within his discretion by relying upon the rate set in

Estate of V.P. v. APM Terminals, ALJ No. 2008-LHC-00842 (Dep’t of Labor Aug.

18, 2009) (ALJ Berlin), and adjusting that rate to take into account the different

markets at issue and the overall economic landscape at the time the attorney’s fees

were incurred. See Christensen, 557 F.3d at 1055.

       Further, in calculating a fee applicant’s lodestar, a court has discretion to

exclude hours that were not “reasonably expended” by counsel. See Hensley v.

Eckerhart, 461 U.S. 424, 434 (1983). There is no “precise rule or formula” for doing

so. Id. at 436. However, “[t]he essential goal in shifting fees . . . is to do rough

justice, not to achieve auditing perfection,” and judges may therefore “take into

account their overall sense of a suit, and may use estimates in calculating and

allocating an attorney’s time.” Fox v. Vice, 563 U.S. 826, 838 (2011). With this in

mind, we agree with the Board that the ALJ acted within his discretion in cutting



                                          3
Witteman’s claimed hours. We also agree that the ALJ was within his right to

disallow the hours that Witteman claimed for his “Reply to Opposition to Fee

Application,” which greatly exceeded the scope of Witteman’s “Amended

Application for Attorneys’ Fees and Costs,” and, in any event, failed to establish a

reasonable hourly rate. The Board also properly affirmed the ALJ’s decision to

sustain the Respondents’ objections to 49 of Witteman’s individual time entries.

Although these cuts may have amounted to more than a “haircut,” Moreno v. City of

Sacramento, 534 F.3d 1106, 1113 (9th Cir. 2008), the ALJ provided a sufficient

explanation of why the cuts were appropriate in light of the concerns articulated

about Witteman’s timekeeping.

      PETITION FOR REVIEW DENIED. Each party shall bear its own costs

of this appeal.




                                         4
