                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       NOV 22 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

SHAHWALI SHAH, to the use of Attorney           No.    16-72307
Jeffery M. Winter,
                                                BRB Nos.     BRB No. 15-0360
                Petitioner,                                  BRB No. 15-0496

 v.
                                                MEMORANDUM*
WORLDWIDE LANGUAGE
RESOURCES, INC.; et al.,

                Respondents.

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

                          Submitted November 8, 2017**
                              Pasadena, California

Before: REINHARDT and WARDLAW, Circuit Judges, and DANIEL, *** District
Judge.

      Shahwali Shah petitions for review of a final Decision and Order of the

Benefits Review Board (“Board”) pursuant to the Longshore and Harbor Workers’

      *
             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 Wiley Y. Daniel, United States District Judge for the
U.S. District Court for Colorado, sitting by designation.
Compensation Act (“Longshore Act”), 33 U.S.C. § 921(c). We have jurisdiction

under 33 U.S.C. § 921(c). We grant the petition, reverse, and remand to the Board

for further proceedings.

      This appeal involves two separate attorney fee awards─one issued by the

Administrative Law Judge (“ALJ”) and one issued by the United States

Department of Labor’s District Director. The attorney fee orders followed the

decision on Shah’s claim for compensation and medical benefits under the Defense

Base Act extension of the Longshore Act, 33 U.S.C. §§ 901-950. The first

attorney fee order, issued by the ALJ on May 11, 2015 and served on May 14,

2015, awarded $48,719.00 in attorney fees and $17,586.24 in costs. The second

attorney fee order was issued by the District Director on August 24, 2015 and

awarded $8,480.50 in attorney fees. The Board’s Decision and Order dismissed as

untimely Shah’s appeal from the underlying ALJ’s attorney fee order and affirmed

the District Director’s attorney fee/compensation order.

      We review the Board’s decision for “errors of law and for adherence to the

statutory standard governing the Board’s review of the administrative law judge’s

factual determinations.” Rhine v. Stevedoring Servs. of Am., 596 F.3d 1161, 1163

(9th Cir. 2010) (citing Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1284 (9th

Cir. 1983) (quoting Bumble Bee Seafoods v. Director, OWCP, 629 F.2d 1327,

1328 (9th Cir. 1980)). On questions of law, including interpretation of the


                                         2                                    16-72307
Longshore Act, we exercise de novo review. Force v. Director, OWCP, 938 F.2d

981, 983 (9th Cir. 1991). The Board erred in dismissing Shah’s appeal from the

underlying ALJ’s attorney fee order as untimely.

      On May 14, 2015, the ALJ’s attorney fee order was filed in the Office of the

District Director. Shah filed his Petition for Reconsideration with the ALJ. The

ALJ issued an order denying Shah’s Petition for Reconsideration, which was

served by the District Director on June 19, 2015. On June 22, 2015, Shah filed his

Notice of Appeal of the ALJ’s attorney fee order with the Board. The Board

dismissed Shah’s Notice of Appeal as untimely stating that “[a]n appeal to the

Board must be filed within 30 days of the date the administrative law judge’s order

was filed by the district director.” Shah argues that because the ALJ “entertained

or considered” his motion for reconsideration on its merits, the time for Shah to

appeal was tolled. See Bowman v. Lopereno et al., 311 U.S. 262, 61 S.Ct. 201, 85

L.Ed.177 (1940). We agree. The time for Shah to appeal was tolled until June 19,

2015, the date the ALJ “entertained or considered” and ultimately denied Shah’s

motion for reconsideration on its merits, rendering Shah’s Notice of Appeal timely.

Therefore, we grant Shah’s petition and reverse and remand the Board’s dismissal

of Shah’s Notice of Appeal of the ALJ’s attorney fee order for consideration on its

merits.

      Additionally, because the Board erred in dismissing Shah’s Notice of Appeal


                                         3                                    16-72307
of the ALJ’s attorney fee order, we remand the Board’s decision on the District

Director’s compensation order for findings that shall consider both the ALJ’s

findings and the District Director’s findings, including the hourly rate

determinations.

      PETITION GRANTED, REVERSED AND REMANDED.




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