Shawn Lee v. Pacific Stevedoring, Incorporated and American Longshore Mutual Association Limited (Board decision, December 10, 2025)

BRB final decision. The Benefits Review Board affirmed the administrative law judge's attorney fee order. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Shawn Lee settled his Longshore Act claims arising from work as a mechanic for Pacific Stevedoring, leaving his lawyer's fee for the judge to decide. The judge awarded $59,563.17 in fees and $4,602.50 in costs. Lee's lawyer challenged the hourly rate and the judge's refusal to increase it for delay, while the employer challenged the allowed hours. The Board held that the judge reasonably used Portland market evidence, assessed the lawyer's experience and work in the case, and accounted for inflation by applying 2021 rates. It also held that the judge adequately addressed the employer's objections to the billed hours. The Board affirmed the fee order on both the appeal and cross-appeal.

Decision snapshot

• Authority: Attorney fees under 33 U.S.C. § 928 and 20 C.F.R. § 702.132(a).
• Outcome: Attorney fee award of $59,563.17 and costs of $4,602.50 affirmed.
• Key point: The judge explained the market rate and billing-hour decisions sufficiently to sustain the award.

Full text (BRB public release)

U.S. Department of Labor Benefits Review Board 200 Constitution Ave. NW
Washington, DC 20210-0001

BRB Nos. 24-0243 and 24-0243A

SHAWN LEE
)
)
Claimant-Petitioner
)
Cross-Respondent
)
)
v. )
)
NOT-PUBLISHED
PACIFIC STEVEDORING,
)
INCORPORATED
)
) DATE ISSUED: 12/10/2025
and
)
)
AMERICAN LONGSHORE MUTUAL
)
ASSOCIATION LIMITED
)
)
Employer-Respondent
)
Cross-Petitioner
)
DECISION and ORDER
Appeal and Cross-Appeal of the Attorney Fee Order of Christopher Larsen, Administrative Law Judge, United States Department of Labor.

Charles Robinowitz (Law Office of Charles Robinowitz), Portland, Oregon, for Claimant.

Scott P. Hardy (Holmes Weddle & Barcott, P.C.), Seattle, Washington, for Employer and its Carrier.

Before: ROLFE and JONES, Administrative Appeals Judges, and ULMER, Acting Administrative Appeals Judge.

PER CURIAM:
Claimant appeals, and Employer cross-appeals, Administrative Law Judge (ALJ) Christopher Larsen’s Attorney Fee Order (2020-LHC-00639, 2020-LHC-00640, and 2020- LHC-00641) rendered on claims filed pursuant to the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §§901-950 (Act). The amount of an attorney’s fee award is discretionary and will not be set aside unless shown by the challenging party to be arbitrary, capricious, based on an abuse of discretion, or not in accordance with law. 1 See Tahara v. Matson Terminals, Inc., 511 F.3d 950 (9th Cir. 2007); Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).

Claimant worked as a mechanic for Employer in Alaska from 2004 through September 23, 2017. In January 2018, he filed claims under the Act seeking disability compensation and medical benefits for an alleged hernia aggravation he sustained on February 10, 2017, and bilateral hand injuries caused by cumulative trauma through his last day of work. He also sought additional disability compensation for a work-related right-eye injury he sustained on August 15, 2012, that resulted in the total loss of his eye and for which Employer paid temporary total disability benefits from August 15, 2012, through May 22, 2013, and schedule member permanent partial disability benefits thereafter. Employer controverted Claimant’s claims for disability compensation and medical treatment for his hernia and bilateral hand injuries and his claim for additional disability compensation for his eye injury.

On April 6, 2020, the Office of Workers’ Compensation Programs (OWCP) referred the claims to the Office of Administrative Law Judges (OALJ) for a formal hearing. Before a hearing was held, the parties entered into a settlement agreement to resolve Claimant’s claims.2 On July 23, 2021, ALJ Richard M. Clark issued a decision and order approving the settlement agreement under Section 8(i) of the Act, 33 U.S.C. §908(i).

1 This case arises within the jurisdiction of the United States Court of Appeals for

the Ninth Circuit because Claimant sustained his injuries in Alaska. 33 U.S.C. §921(c); see Roberts v. Custom Ship Interiors, 35 BRBS 65, 67 n.2 (2001), aff’d, 300 F.3d 510 (4th Cir. 2002); 20 C.F.R. §702.201(a).
2 Under the terms of the settlement agreement, Employer paid $155,000 in disability

compensation for Claimant’s right eye, hernia, and bilateral hand injuries, and $10,000 for past and future medical treatment for his hernia and bilateral hand injuries. Medical care and treatment for Claimant’s right eye was left open.

2
On August 26, 2021, Claimant’s counsel, Charles Robinowitz (Counsel), filed his petition for fees and costs with ALJ Clark.3 He sought an attorney’s fee totaling $64,449.25, plus $4,602.50 in costs. He asked for the following rates: $675 per hour for himself, $200 per hour for legal assistant Elizabeth Duncan, and $165 for legal assistant Jessica Edmiston.4 Fee Pet. at 11, 15.

In response, Employer objected to the requested hourly rates, to specific time entries as clerical, excessive, duplicative, and non-productive, and to certain costs as unsubstantiated. Emp. Objs. On December 31, 2021, Counsel filed a reply to Employer’s objections as well as a supplemental fee petition seeking an additional fee of $12,723.75 for 18.85 hours of work performed since August 24, 2021. Supp. Fee Pet. I. Employer filed objections to Counsel’s supplemental fee petition. On January 28, 2022, Counsel filed his reply to Employer’s objections along with a second supplemental fee petition seeking an additional fee of $1,856.25 for 2.75 hours spent replying to Employer’s objections to Counsel’s first supplemental fee petition. Supp. Fee Pet. II.

On March 28, 2023, ALJ Clark ordered the parties to confer and file a joint status update on the pending attorney’s fee issue. On April 21, 2023, Counsel filed a letter confirming the issue was ready for adjudication and an amended fee petition which purportedly consolidated all requested fees and costs into one petition. He sought a total of $84,830 in fees, consisting of 109.63 hours of Counsel’s services at $750 per hour, 8.6 hours of legal assistant/associate services at $300 per hour, and .25 hours of legal assistant services at $110 per hour, plus $4,602.50 in costs. Amend. Fee Pet. Employer objected to

3 Following the settlement approval, ALJ Clark retained jurisdiction over the issue

of Claimant’s attorney’s fee but encouraged the parties to negotiate and resolve it on their own. To that end, he ordered Counsel to first send his fee petition to Employer’s counsel within thirty days, and if the parties were unable to agree, then Counsel was permitted to file his fee petition with ALJ Clark within thirty days from when Counsel served Employer with his fee petition. D&O Approving Settlement at 2. The day after Counsel filed his fee petition with the OALJ, Employer filed a letter with ALJ Clark requesting a 30-day extension to allow the parties additional time to resolve Counsel’s fee without formal adjudication, in accordance with ALJ Clark’s order approving the settlement agreement. ALJ Clark granted Employer’s request.
4 The total fee request consisted of 92.81 attorney’s hours billed at $675 per hour,

8.6 legal assistant’s hours billed at $200 per hour, and .5 legal assistant’s hours billed at
$165 per hour. Fee Pet. at 11.

3
Counsel’s amended fee petition and requested a reasonable attorney’s fee be determined based on Counsel’s first fee petition and two supplemental petitions.

On March 4, 2024, ALJ Larsen (the ALJ) issued his Attorney Fee Order,5 awarding Counsel $59,563.17 for an attorney’s fee and $4,602.50 for costs. Fee Ord. at 22-23. The ALJ accepted the parties’ agreement that Portland, Oregon, was the relevant community for determining Counsel’s hourly rate. He rejected Counsel’s request for a $750 hourly rate and instead awarded an hourly rate of $443. Id. at 14. Using the United States Department of Labor’s Bureau of Labor Statistics inflation calculator, the ALJ adjusted the 2016 hourly rate of $443 to the 2021 rate of $512.6 Id. at 15. As for legal assistant rates, the ALJ awarded $200 per hour for work performed by Ms. Duncan, $165 per hour for work performed by Ms. Edmiston, and $110 per hour for work performed by Andrea Trujillo. Id. at 16-17.

The ALJ next considered the reasonableness and necessity of the work performed.
He rejected Employer’s argument that Counsel’s time should be reduced for limited success and its objections to particular time entries, finding the time entries were neither vague, excessive, duplicative, unnecessary, nor “purely clerical.” Fee Ord. at 17-22. Based on the total hours reflected across all the fee petitions (minus one time entry for .4 hour) the ALJ awarded a total of 115.91 hours for Counsel’s work, 8.6 hours for Ms. Duncan’s work, .5 hour for Ms. Edmiston’s work, and .25 hour for Ms. Trujillo’s work.7

On appeal, Counsel contends the ALJ abused his discretion in reducing his requested hourly rate and not adjusting it to account for delay. Employer responds, urging affirmance of the ALJ’s hourly rate determination, and Counsel filed a reply brief. BRB No. 24-0243. In its cross-appeal, Employer asserts the ALJ failed to fully address its time- entry objections and, therefore, abused his discretion. Counsel responds, urging affirmance

5 While the attorney fee issue was pending, ALJ Clark retired , and the case was reassigned to ALJ Larsen.
6 The ALJ found three and a half years was not “an ‘exceptional’ delay” that would

warrant a delay enhancement, and, therefore, rejected Counsel’s request for 2023 rates. Fee Ord. at 15. He instead found applying 2021 hourly rates for all work performed since 2020 “achieves [] ‘rough justice.’” Id.
7 Although Counsel stated in the Amended Fee Petition that he was requesting a

total of 109.63 hours for his services, 8.6 hours for Ms. Duncan’s services, and .25 hours for Ms. Trujillo’s services, the ALJ found the total number of hours requested across all fee petitions was 115.91 hours for Counsel’s services, 8.6 hours for Ms. Duncan’s services,
.5 hour for Ms. Edmiston’s services, and .25 hour for Ms. Trujillo’s services.

4 of the ALJ’s rejection of Employer’s objections, and Employer filed a reply brief. BRB No. 24-0243A.

Claimant’s Appeal (BRB No. 24-0243)

Counsel contends the ALJ erred in determining his hourly rate and in failing to award a delay enhancement. He argues the ALJ arbitrarily set the rate at $443 by not properly crediting his expert evidence and prior fee awards recognizing him as among the top Portland attorneys with the ability to command a significantly higher rate. Counsel asserts the ALJ’s reasons for placing him in the top 25% of all plaintiff civil litigation attorneys and all attorneys practicing in Portland, as opposed to the top 5% of all attorneys practicing in Portland, are irrational because the ALJ disregarded unrebutted evidence supporting Counsel’s entitlement to a higher hourly rate in favor of the ALJ’s own opinion regarding Counsel’s experience and reputation in the relevant community and his performance in this particular case. Counsel further contends the ALJ’s refusal to enhance his hourly rate to account for delay between December 2021 and March 2024 was an abuse of discretion and contrary to law because it undermines the Act’s purpose of encouraging competent counsel to represent injured employees.

Employer filed a response brief urging affirmance of the ALJ’s hourly rate determination. In reply, Counsel clarifies that his assignment of error is not in the ALJ’s awarding a rate suitable for the top 25% of lawyers in Portland, Oregon; rather, it is that 50% of the ALJ’s hourly rate calculation is based on rates of all attorneys in Portland, and all attorneys practicing civil litigation in Portland, regardless of skill or experience.

Under the Act, a reasonable hourly rate is to be calculated according to the prevailing market rate “for similar services by lawyers of reasonably comparable skill, experience and reputation” in the relevant community and should be commensurate with fees attorneys could obtain in other types of cases. Seachris v. Brady-Hamilton Stevedore Co., 994 F.3d 1066, 1076-1077 (9th Cir. 2021) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)); Shirrod v. Director, OWCP, 809 F.3d 1082, 1086 (9th Cir. 2015); Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049, 1053 (9th Cir. 2009). The fee applicant bears the burden of producing “satisfactory evidence” of the relevant market and the rates charged in that market. Christensen, 557 F.3d at 1053; see also Blum, 465 U.S. at 895 n.11. In awarding a reasonable attorney’s fee, the adjudicator must consider all relevant rate evidence before him, H.S. [Sherman] v. Dep’t of Army/NAF, 43 BRBS 41, 44 (2009), and must explain his rationale for assessing the fee. Carter v. Caleb Brett, L.L.C., 757 F.3d 866, 869 (9th Cir. 2014); Jensen v. Weeks Marine, Inc., 33 BRBS 97, 101 (1999).

We first address Counsel’s challenge to the ALJ’s finding that Counsel is among attorneys in the 75th percentile, as opposed to the 95th percentile, of all Portland attorneys.

5
He contends the ALJ disregarded evidence supporting Counsel’s ranking and reputation in the Portland market and relied on his personal opinion instead of the market rate evidence. 8 In support of the initial requested rate of $675 per hour, and the amended requested rate of
$750 per hour, Counsel relied on his more than fifty years of experience with Longshore Act cases, his professional accolades, the 2020 Morones Survey of Commercial Litigation Fees in Portland (Morones Survey), Robert E. L. Bonaparte’s declaration and exhibits, Fee Petition Exhibit (FPX) A,9 the fee order in Scott v. Vigor Marine, L.L.C., No. 17CV17799 (Or. Cir. Ct. Nov. 28, 2018), awarding Counsel $500 per hour in a discrimination claim under Oregon state law, FPX B, and the fee order in Aegis Defense Servs., L.L.C./Allied World Assurance Co. v. Martin, 829 F. App’x 216 (9th Cir. 2020), awarding Counsel $550 per hour for work performed in 2019 and 2020, FXP C. 10 Counsel also submitted portions of the Oregon State Bar 2017 Economic Survey (OSB Survey) showing billing rates for attorneys in Portland with more than thirty years of experience and billing rates for all attorneys in Portland in private practice.

The ALJ acknowledged Counsel “is a long-time Longshore practitioner with significant skill and experience” but found his “decades of experience do[] not necessarily place him among the top attorneys in his market commanding the top rates.” Fee Ord. at

7. The ALJ considered Mr. Bonaparte’s opinion that Counsel is among the top 5% of civil
   litigators in Portland because of Counsel’s years of experience and his “tenacity and

   8 We affirm, as unchallenged on appeal, the hourly rates awarded for the legal
   assistants’ services. Scalio v. Ceres Marine Terminals, Inc., 41 BRBS 57, 58 (2007).
   9 Counsel submitted Mr. Bonaparte’s declaration in both his initial fee petition and

his amended petition. Although they are dated differently (May 17, 2021, and August 11, 2021), the declarations are identical in substance. Mr. Bonaparte opined Counsel’s requested hourly rate of $675 per hour “is within the range of prevailing market rates” based on the Oregon State Bar 2017 Economic Survey (OSB Survey) and the 2020 Morones Survey of Commercial Litigation Fees in Portland (Morones Survey). FPX A at

11. He stated the expertise and skills required in commercial litigation are similar to those
    required in Longshore Act cases; therefore, commercial litigation rates are an appropriate comparator. Id. at 8. He considered Counsel “among the top 5 percent of civil litigators” in Portland, id. at 9, given Counsel’s fifty years of experience, his Martindale Hubbell rating of pre-eminently qualified, and his reputation in the legal community. Id. at 11.
    10 Counsel stated his amended requested rate reflects the increased Consumer Price

Index in Portland, Oregon, since Mr. Bonaparte offered his declaration in May 2021: a 4.7% increase in 2021, 8.6% in 2022, and “about one percent in 2023 through March.” Amend. Fee Pet. at 13.

6 perseverance.” Id. at 11. However, the ALJ reasoned that “tenacity and perseverance” do not support placement in the top 5% and found Mr. Bonaparte’s opinion unpersuasive. Given Counsel’s failure to comply with multiple OALJ orders, and to a lesser degree his inattention to detail, the ALJ determined Counsel “did not reflect the skills of a practitioner in the top 95th percentile.” Id. at 7-8. Based on Counsel’s experience, skill, and performance in the case, the ALJ found Counsel “more accurately placed in the top 75th percentile of attorneys in his area.” Id.

Counsel has failed to establish the ALJ abused his discretion in placing him in the 75th percentile of the Portland legal community. Whether to place an attorney in the 75th or 95th percentile of attorneys is a “judgment call for the ALJ to make.” Seachris, 994 F.3d at 1080. In making this judgment, the ALJ was not required to accept Mr. Bonaparte’s opinion regarding Counsel’s ranking or take Counsel’s word at face value. Vargas v. Howell, 949 F.3d 1188, 1199 (9th Cir. 2020); Vogel v. Harbor Plaza Ctr., 893 F.3d 1152, 1160 (9th Cir. 2018); Morris v. Cal. Stevedore & Ballast Co., 10 BRBS 375, 380 (1979).11 Nor was he required to place Counsel in the 95th percentile solely because he has fifty years of experience. Christensen v. Stevedoring Services of Am., 44 BRBS 75, 75-76 (2010), aff’d sub nom., Stevedoring Servs. of Am. v. Director, OWCP, 445 F. App’x 912 (9th Cir. 2011). As the ALJ properly considered Counsel’s experience and skill and the quality of Counsel’s representation when assessing a reasonable hourly rate, 20 C.F.R.
§702.132(a); Blum, 465 U.S. at 898-899, and his reasons for rejecting Counsel’s evidence and argument regarding his ranking are rational, we affirm his placement of Counsel in the 75th percentile of all attorneys in Portland, Oregon, as within his discretion. Seachris, 994 F.3d at 1080; Carter, 757 F.3d at 869.

We next address Counsel’s arguments regarding the ALJ’s use of the market rate evidence. Counsel relied on Mr. Bonaparte’s opinion, who in turn stated he “relied primarily” upon the OSB Survey rates based on years of experience, and on commercial litigation rates set forth in the Morones Survey. FPX A at 5. With his declaration, Mr. Bonaparte included a portion of the OSB Survey that showed a 2016 median hourly rate of $495 for attorneys in all private practice areas with more than 30 years of experience. Id.

11 Counsel maintains it was irrational for the ALJ to draw conclusions regarding his

performance in this case because the ALJ was not the trial judge and, therefore, had “little, if any, knowledge” of the claims. Cl. Br. at 6. However, the ALJ is permitted to “consider his personal knowledge and experience of fee rates and the practice of law when he makes a discretionary determination of the reasonableness of an attorney’s fee.” Morris, 10 BRBS at 380. Because evidence of Counsel’s failure to abide by OALJ orders is in the record, we reject Counsel’s assertion that the ALJ was not free to draw his own conclusions in awarding the fee merely because he was not the ALJ of record at the time of the settlement.

7 at 21. That portion of the OSB Survey also showed a 2016 median hourly rate of $400 for attorneys in all private practice areas regardless of years of experience. Id. at 19. The Morones Survey demonstrated a median hourly rate ranging between $525 and $620 for attorneys in commercial litigation with more than 30 years of experience.12 Id. at 23. The fee orders Counsel relied upon awarded him $500 per hour in 2018, FPX B, and $550 per hour for work performed in 2019 and 2020, FXP C. For its part, Employer argued the hourly rates for attorneys practicing personal injury, workers’ compensation, and administrative law were appropriate comparators and submitted those portions of the OSB Survey.

The ALJ gave “some weight” to the Morones Survey but relied primarily on the OSB Survey to determine the prevailing market rate. Fee. Ord. at 11. He determined commercial litigation rates were “relevant, but not controlling” because Counsel “does not manage a team of associates over years of litigation in the same way a highly-paid civil litigator would be expected to do” and because of the distinctions between “general ‘commercial litigation’” and administrative litigation under the Longshore Act. 13 Id. at 7, 10-11. In addition to commercial litigation rates from the Morones Survey, the ALJ found rates for plaintiff civil litigation, both personal-injury and non-personal injury, were “relevant” and “reflect[ed]” what Counsel described of his practice.14 Id. at 13 (citing

12 The reported hourly rates were for 2016, 2018, and 2020.

13 While the ALJ ascribed “some value” to Mr. Bonaparte’s comparison of Longshore Act litigation and commercial litigation, he found Mr. Bonaparte did not address the differences between Longshore Act litigation and commercial litigation. He specifically rejected as “illogical and unpersuasive” Mr. Bonaparte’s conclusion that these practice areas are the same because the defendants in both are commercial entities. Fee Ord. at 10; see also FXP A at 8-9. In addition, the ALJ found the Morones Survey, which Mr. Bonaparte relied upon and contended was due “careful consideration,” to be relevant “but not controlling or entitled to substantial weight” because it did not contain information regarding how each surveyed firm defined ‘commercial litigation.’ Fee Ord. at 9-11; see also FXP A at 6-9.
14 Counsel has been an attorney in private practice in Portland, Oregon, since 1969.

Amend. Fee Pet. at 13. He stated his practice “emphasizes serious tort and wrongful death claims, maritime tort claims, and workers’ compensation claims under the Longshore and Harbors Workers’ Compensation Act,” and that he “handle[s] almost all cases on a contingency basis.” Id. at 13-14. He estimated he has tried more than 200 jury trials, more than 350 court trials, and argued more than 150 appeals over the last fifty years. Id. at 13. He stated he has “represented clients and tried cases involving insurance claims, wrongful 8
Shirrod, 908 F.3d at 1090). He then averaged the rates for attorneys in the 75th percentile of the general private practice market and specific practice areas in Portland, Oregon: $495 (OSB Survey: hourly billing rate of attorneys in private practice with more than 30 years of experience); $350 (OSB Survey: personal injury and non-personal injury plaintiff civil litigation); $400 (OSB Survey: all private practice areas); and $525 (Morones Survey: median rate for commercial litigation attorneys with 30 or more years of experience), to arrive at an hourly rate of $443 in 2016,15 which he then adjusted to a 2021 hourly rate of
$512.16 Id. at 15.

The ALJ’s findings regarding the relevance of the rates he used in determining a proxy market rate from which to assess a reasonable hourly rate for Counsel are rational and sufficiently explained. Shirrod, 809 F.3d at 1088 n.5; Christensen, 557 F.3d at 1054- 1055. Unlike in Shirrod, in which the Ninth Circuit held it was erroneous to include hourly rates for all attorneys across Oregon, here, the rates used by the ALJ are “tailored to the ‘relevant community,’” Shirrod, 809 F.3d at 1089, and, taken together, appropriately account for Counsel’s practice area, skill, and experience. Blum, 465 U.S. at 895 n.11; Seachris, 994 F.3d at 1080 (rates based on years of experience, regardless of practice area, “are at least relevant”); Christensen, 557 F.3d at 1053-1054; see also Christensen v. Stevedoring Servs. of Am., 43 BRBS at 145 (2009) (holding plaintiff personal injury civil litigation and plaintiff general civil litigation is “similar” market for Counsel’s services), and modified on other grounds on recons., 44 BRBS 39 (2010) (holding Oregon’s workers’ compensation rates are not based on market rate), aff’d sub. nom., Stevedoring Servs. of Am. v. Director, OWCP, 445 F. App’x 912 (9th Cir. 2011) (no abuse of discretion in Board

discharge, discrimination cases and commercial fraud claims,” and has “considerable experience with commercial litigation.” Id. at 14.
15 Because the parties submitted only portions of the OSB Survey, the ALJ took

official notice of the entire OSB Survey in order to review all practice areas he deemed relevant. Fee Ord. at 12-13.
16 The ALJ gave “little weight” to Counsel’s fee award in Scott because he did not

establish the case “involved litigation similar to Longshore work.” Fee Ord. at 13. He also found the fee award in Aegis was not “probative of reasonable rates” because the United States Court of Appeals for the Ninth Circuit “provided very little detail” regarding Counsel’s skills, and Counsel did not explain how “the skills for his appellate work are similar to his trial-level work” in the instant case. Id. at 14. The ALJ declined to use rates for workers’ compensation and administrative law because workers’ compensation rates are capped by state law and because he found Employer’s argument for using administrative law rates was not persuasive. Fee Ord. at 13 (citing Shirrod, 809 F.3d 1082).

9 using average rates of general civil litigation attorneys from OSB Survey); Nelson v. ICTSI Or., Inc., 743 F. App’x 120 (9th Cir. 2018), aff’g BRB No. 16-0517 (Aug. 18, 2017) (unpublished) (no abuse of discretion in ALJ using OSB data solely from the practice area of plaintiff personal injury); see also Hardman v. Marine Terminals Corp., 758 F. App’x 586 (9th Cir. 2018), aff’g BRB No. 17-0097 (Oct. 18, 2017) (unpublished) (same). Accordingly, we affirm the ALJ’s determination that $443 represents a reasonable base hourly rate for Counsel. Carter, 757 F.3d at 896.

We now address Counsel’s last contention that the ALJ abused his discretion in denying a delay enhancement for the 3.5-year period between when Counsel commenced representation in 2020, and when the ALJ awarded an attorney’s fee in 2024. When assessing an attorney’s fee under the Act, the adjudicator may adjust the fee to account for delay between when the attorney’s services were provided and when fees are awarded. Christensen, 557 F.3d at 1055-1056; Anderson v. Director, OWCP, 91 F.3d 1322, 1325 (9th Cir. 1996). In Christensen, the Ninth Circuit determined a two-year delay was “not so egregious or extraordinary as to require a delay enhancement.” Christensen, 557 F.3d at 1056; but see Anderson, 91 F.3d at 1325 (determining fourteen-year delay “egregious” and ordering award for delay enhancement).

Counsel has not established the ALJ erred in denying a delay enhancement or in adjusting the hourly rate to account for inflation. Christensen, 557 F.3d at 1056; Anderson, 91 F.3d at 1325; see generally Wilson v. Mantech Int’l Corp., BRB No. 19-0007, slip op. at 3-4 (July 3, 2019). The ALJ considered the delay but found it was not “exceptional” and did not warrant an award based on 2023 hourly rates. Fee Ord. at 15. However, to account for inflation, he awarded 2021 rates for all work performed in this matter, including work performed in 2020. Id. at 15. Inasmuch as the ALJ reasonably found the delay in this case was not “extraordinary” or “extreme,” he acted within his discretion and explained his judgment. The ALJ was not required to adjust Counsel’s fee to account for that delay. Anderson, 91 F.3d at 1325. Because the ALJ accounted for inflation to adequately compensate Counsel for his services, achieving, as the ALJ noted, “rough justice,” we affirm his use of a 2021 hourly rate for all work performed.17 Christensen, 557 F.3d at 1056; Anderson, 91 F.3d at 1325.

Employer’s Cross Appeal (BRB No. 24-0243A)

Employer contends the ALJ abused his discretion by not disallowing or reducing time entries for what Employer characterizes as clerical, excessive, duplicative, or “non-

17 As the ALJ correctly observed, most of the work Counsel performed before the

OALJ was in 2020 and 2021.

10 productive” work. It asserts the ALJ offered cursory explanations for overruling the objections he addressed and did not adequately address other objections to specific time entries. In response, Counsel insists the ALJ’s consideration of his reported hours is consistent with Moreno v. City of Sacramento, 534 F.3d 1106 (9th Cir. 2008), and his reasons for overruling Employer’s objections to individual entries were adequately explained. In reply, Employer urges the Board to reject Counsel’s response as untimely filed or alternatively as not responsive to arguments raised in its cross-appeal.18

An attorney’s work is compensable if the hours claimed are “reasonable” for the “necessary work done” in the case and the fee is commensurate with the degree of success obtained. 20 C.F.R. §702.132(a); see 33 U.S.C. §928; Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). “The fee applicant bears the burden of documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours worked.” Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). Once the applicant meets his burden, the party opposing the requested fee award must “come up with specific reasons for reducing the fee request that the [adjudicator] finds persuasive.” Moreno, 534 F.3d at 1116. If the opposing party cannot do so, the court “should normally grant the award in full . . . .” Id.

When addressing the fee petition and objections, and calculating the number of hours reasonably expended, the ALJ should disallow a fee for hours that are “excessive, redundant, or otherwise unnecessary.” Tahara, 511 F.3d at 955 (quoting Hensley, 461 U.S. at 434). Because attorneys are expected to “exercise ‘billing judgment’ with respect to hours worked,” Hensley, 461 U.S. at 437 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc)), the ALJ may defer to an attorney’s “professional judgment as to how much time he was required to spend on the case.” Moreno, 534 F.3d at 1112; but see Vogel, 893 F.3d at 1160 (adjudicator does not discharge duty of ensuring

18 Employer filed its Notice of Cross-Appeal on April 18, 2024. The Board acknowledged the cross-appeal on May 3, 2024. On June 1, 2024, Employer moved for a thirty-day extension to file its petition for review and brief. The Board deferred ruling on Employer’s motion, and on July 3, 2024, Employer filed its petition for review and supporting brief. Without moving for an extension or time or leave to file his response out of time, Counsel filed his response brief on September 19, 2024. 20 C.F.R. §802.217(b)- (e). We grant Employer’s motion for an extension of time to file its petition for review and supporting brief. 20 C.F.R. §802.217(a)-(c). As Employer did not file a separate document asserting its motion to strike Counsel’s response brief as untimely, we decline to consider Employer’s request. 20 C.F.R. §802.219. We accept as part of the record in BRB No. 24- 0243A Employer’s petition for review and supporting brief, Counsel’s response brief, and Employer’s reply brief. 20 C.F.R. §§802.103(a), 802.212, 802.213, 802.217(a).

11 reasonableness of an attorney’s fee “simply by taking at face value the word of the prevailing party’s lawyer for the number of hours expended on the case”) (citation modified).

Additionally, the ALJ need not make an express ruling on every objection raised by the party opposing the requested fee. Gates, 987 F.2d at 1398-1399; see also Fox v. Vice, 563 U.S. 826, 838 (2011) (adjudicators need not become “green-eyeshade accountants”). However, he must provide “a concise but clear explanation” of his reasons for the fee award. Hensley, 461 U.S. at 437; Jensen v. Weeks Marine, Inc., 33 BRBS 97, 101 (1999). Given the ALJ’s “superior understanding of the litigation,” Hensley, 461 U.S. at 437, “considerable deference” is given to his findings regarding whether hours claimed by prevailing counsel are excessive, redundant, or unnecessary. Tahara, 511 F.3d at 955 (quoting Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1047 (9th Cir. 2000)).

In this case, Employer objected to a total of 51.39 of the 125.6 hours requested by Counsel: 43.78 hours for work it argued was excessive and duplicative, 1.9 hours for tasks related to clerical scheduling matters, and 5.71 hours for “non-productive” work. Except for .4 hour, the ALJ made no reductions, and Employer contends he failed to fully address its objections.19 We disagree.

Contrary to Employer’s contentions, the ALJ was not required to address and respond to every one of its line-by-line objections and act as a “green-eyeshad e accountant.” Fox, 563 U.S. at 838; Deukmejian, 987 F.2d at 1398-1399. Rather, he need only achieve “rough justice.” Fox, 563 U.S. at 838. The ALJ addressed specific illustrative examples of time entries to which Employer objected and explained why he found those time entries were not clerical, excessive, duplicative, or unnecessary under the appropriate legal standards: “whether, in light of the circumstances, the time could reasonably have been billed to a private client,” and whether, at the time the work was performed, Counsel could have reasonably regarded the task as necessary to establish Claimant’s entitlement to benefits.20 Fee Ord. at 19 (first quoting Moreno, 534 F.3d at 1111 (citing Hensley, 461

19 We affirm, as unchallenged on appeal, the ALJ’s disallowance of .4 hour. Scalio, 41 BRBS at 58.
20 For example, in rejecting Employer’s “clerical” objections, the ALJ specifically found two entries that referred to scheduling matters were not “purely clerical in nature” because one involved communicating with Claimant and his family regarding the “deposition process,” and the other referred to communicating with Claimant’s doctor’s office regarding the need for a medical evaluation. Fee Ord. at 19-20. He also mentioned one time entry where Counsel billed .25 hour for sending an email to the mediator regarding dates for mediation, and another time entry where Counsel billed .25 hour for preparing a 12
U.S. at 434); then citing Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992) (citing Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 1177 (6th Cir. 1990)); and then citing Cabral v. Gen. Dynamics Corp., 13 BRBS 97, 100 (1981)). He stated he reviewed each of Employer’s objections and found the time claimed was not “unreasonable or unnecessarily duplicative.” Fee Ord. at 21. Further, he indicated he “generally defer[s] to counsel for how much [time] each of the tasks took” and, ultimately, found the time requested in this case was not “unreasonable.” Id. As the ALJ adequately addressed Employer’s objections, and his reasons for awarding a fee for the number of hours Counsel requested are rational and in accordance with law, Employer has not shown the ALJ abused his discretion. Therefore, we affirm the ALJ’s finding that the objected-to time entries are reasonable, necessary, non-clerical, and not duplicative. Hensley, 461 U.S. at 437; Tahara, 511 F.3d at 955.

letter to Claimant regarding the mediation schedule. He concluded all this work was not “purely clerical in nature” and overruled Employer’s remaining clerical objections. Id. at

20. As for Employer’s objections to “non-productive” or unnecessary work, the ALJ found
    the time spent on communications with Claimant, mediation preparation, revising previously drafted documents, and preparing his fee petitions was not excessive or duplicative “given the multiple claims at issue” and the “complexity of the case,” and that none of the time entries represented time spent on tasks that were “clearly unreasonable at the time.” Id. at 20-21.

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    Accordingly, we affirm the ALJ’s Attorney Fee Order.

SO ORDERED.

JONATHAN ROLFE
Administrative Appeals Judge

MELISSA LIN JONES
Administrative Appeals Judge

GLENN E. ULMER
Acting Administrative Appeals Judge