Special Fee Shifting Statutes: Baker Botts’ Bankruptcy Rationale Did Not Apply To Compensation Of Fee-Application And Fee-Litigation Work Under The Longshore And Harbor Workers’ Compensation Act

$52,340 Fee Award Recommendations By Appellate Commissioner Are Adopted.

            When it comes to awarding fees for appellate work, the Ninth Circuit refers the matters to the Appellate Commissioner under Ninth Circuit Rule 39-1.9.  These Commissioners develop an expertise in resolving fee-application and fee-litigation work.

            In Vortex Marine Construction v. Grimm, No. 15-72258 (9th Cir. Dec. 22, 2017) (published), the Commissioner recommended that Mr. Grimm be awarded $52,340 for successful appellate work and subsequent “fees on fees” work in a Longshore and Harbor Workers’ Compensation Act (LHWCA) case.  The other side argued that this type of work was not compensable based on the reasoning in Baker Botts L.L.P. v. ASARCO LLC, 135 S.Ct. 2158, 2168 (2015) [reviewed in our June 19, 2015 post].  The problem here was that Baker Botts arose under the Bankruptcy Code now allowing for compensation of such work, unlike LHWCA’s specialized fee-shifting statute, 33 U.S.C. § 928(a), which does allow compensation for time spent establishing the entitlement to and amount of recoverable attorney’s fees.