                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        APR 21 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

DANIEL R. KUPKE, to the Use of Barnett,         No.    18-72575
Lerner, Karsen & Frankel, P.A.,
                                                BRB No. 17-0359
                Petitioner,

 v.                                             MEMORANDUM*

DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS; et al.,

                Respondents.

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

                      Argued and Submitted February 3, 2020
                               Pasadena, California

Before: WARDLAW, NGUYEN, and HUNSAKER, Circuit Judges.

      Barnett, Lerner, Karsen & Frankel, P.A. (Barnett) petitions for review of a

decision of the Benefits Review Board upholding an administrative law judge’s

(ALJ) attorneys’ fees determination. We have jurisdiction under 33 U.S.C.

§ 921(c), and we deny the petition.

      1.     Barnett has forfeited its argument that fee awards from federal district


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
courts are not proper subjects of “official notice”—the agency’s equivalent of

judicial notice—because it failed to raise this issue before the Benefits Review

Board. See Sims v. Apfel, 530 U.S. 103, 108 (2000) (explaining that when an

agency’s regulations require issue exhaustion in administrative appeals, “courts

reviewing agency action regularly ensure against the bypassing of that requirement

by refusing to consider unexhausted issues”); 20 C.F.R. § 802.211(a) (requiring

issue exhaustion in appeals to the Benefits Review Board).

      2.     Even if we were to conclude that the ALJ erred by failing to give

Barnett notice of her intent to rely on fee awards from the Southern District of

Florida, Barnett has not shown that such error was prejudicial.1 Ludwig v. Astrue,

681 F.3d 1047, 1054 (9th Cir. 2012). Barnett’s briefs on appeal failed to explain

why the district court decisions relied on by the ALJ were inappropriate indicators

of the prevailing rates in South Florida. Nor did Barnett offer any explanation at

oral argument. In a post-argument briefing order, we asked Barnett to include in

its supplemental brief “any arguments for why the specific cases relied upon by the

ALJ did not reflect the market rate for South Florida.” Barnett instead submitted a

supplemental brief bereft of any arguments on this point. Barnett has therefore


      1
         We assume without deciding that Barnett preserved this issue before the
Benefits Review Board. We also assume without deciding that the ALJ’s
consideration of fee awards from the Southern District of Florida constituted taking
official notice, thereby triggering the procedural requirements in 29 C.F.R.
§ 18.201.

                                          2
failed to carry its burden of showing that any error by the ALJ “affected [its]

substantial rights, . . . not merely [its] procedural rights.” Id. (internal quotation

marks omitted).

      PETITION DENIED.




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