Vortex Marine Construction, employer v. Terry Grimm

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VORTEX MARINE
CONSTRUCTION, employer;
SIGNAL MUTUAL INDEMNITY
ASSOCIATION, Insurance
Carrier,
Petitioners,
v.
TERRY GRIMM; GENERAL
CONSTRUCTION COMPANY;
ST. PAUL FIRE AND MARINE
INSURANCE COMPANY;
DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION
PROGRAM; U.S. DEPARTMENT
OF LABOR,
Respondents.
No. 15-72258
BRB No.
14-0323
ORDER
Filed December 22, 2017
Before: Michael Daly Hawkins, Marsha S. Berzon,
and Andrew D. Hurwitz, Circuit Judges

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VORTEX MARINE CONSTRUCTION V. GRIMM 2
SUMMARY*
Attorneys’ Fees/Benefits Review Board
The panel upheld the Appellate Commissioner’s order
awarding attorneys’ fees and costs for a petition for review in
the amount of $32,280 in favor of Terry Grimm and against
Vortex Marine Construction and Signal Mutual Indemnity
Association, and amending the mandate; and awarded
attorneys’ fees for the fee litigation in the amount of $20,060
in favor of Terry Grimm and against Vortex Marine and
Signal Mutual.
After Vortex Marine and Signal Mutual dismissed a
petition for review of a decision of the Benefits Review
Board, the panel granted Grimm’s motion for an award of
attorneys’ fees on review and referred the determination of an
appropriate amount of fees on review to the Appellate
Commissioner, and also referred to the Appellate
Commissioner for a report and recommendation on Grimm’s
supplemental attorneys’ fees motion, including the issue of
entitlement to fees for defending the fee application.
In its order, the panel agreed with the Appellate
Commissioner that Baker Botts L.L.P. v. ASARCO LLC,
135 S. Ct. 2158, 2168 (2015), did not prevent an award of
attorney’s fees for the fee litigation under the Longshore and
Harbor Workers’ Compensation Act, 33 U.S.C. § 928(a).
The panel noted that under fee-shifting statutes, like § 928(a)
of the Longshore Act, courts uniformly decline to treat
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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VORTEX MARINE CONSTRUCTION V. GRIMM 3
fee–application and fee-litigation work differently.
Accordingly, the panel upheld the Appellate Commissioner’s
order awarding attorneys’ fees and costs for the petition for
review; and awarded attorneys’ fees for the fee litigation in
the amount of $20,060 in favor of Grimm and against Vortex
Marine Construction and Signal Mutual Indemnity
Association.
COUNSEL
James P. Aleccia, Aleccia & Mitani, Long Beach, California,
for Petitioners.
Eric A. Dupree and Paul R. Meyers, Dupree Law aplc,
Coronado, California; Joshua T. Gillelan II, Longshore
Claimants’ National Law Center, Washington, D.C.; for
Respondent Terry Grimm.
ORDER
After Vortex Marine Construction and Signal Mutual
Indemnity Association dismissed the petition for review, we
granted Terry Grimm’s motion for an award of attorneys’
fees on review and referred the determination of an
appropriate amount of fees on review to the Appellate
Commissioner. See 9th Cir. R. 39-1.9. We also referred to
the Appellate Commissioner for a report and recommendation
Grimm’s supplemental attorney’s fees motion, including the
issue of entitlement to fees for defending the fee application.
The Appellate Commissioner awarded Grimm’s attorneys’
fees and costs for the petition for review in the amount of

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VORTEX MARINE CONSTRUCTION V. GRIMM 4
$32,280, and recommended that we award Grimm’s
attorneys’ fees for the fee litigation in the amount of $20,060.
The parties have not requested reconsideration of the
Appellate Commissioner’s order or objected to the Appellate
Commissioner’s report and recommendation. We agree with
the Appellate Commissioner’s determination that Baker Botts
L.L.P. v. ASARCO LLC, 135 S. Ct. 2158, 2168 (2015), does
not prevent an award of attorneys’ fees for the fee litigation
here under the Longshore and Harbor Workers’
Compensation Act (“LHWCA”), 33 U.S.C. § 928(a). In
Baker Botts, the court held that the text of § 330(a)(1) of the
Bankruptcy Code does not shift the costs of adversarial
litigation from one side to the other, and it does not displace
the American Rule with respect to fee-defense litigation. See
id. at 2165–67; see also Micha v. Sun Life Assurance of
Canada, Inc., 874 F.3d 1052, 1062 n.2 (9th Cir. 2017)
(Berzon, J., concurring). But § 928(a) of the LHWCA is a
fee-shifting statute that departs from the American Rule and
explicitly shifts to the employer or carrier the responsibility
for payment of a reasonable fee for attorney services for the
adversarial litigation if the claimant successfully prosecutes
the claim. See Shirrod v. Dir., OWCP, 809 F.3d 1082, 1084,
1086 (9th Cir. 2015); see also Baker Botts, 135 S. Ct. at
2164–65, 2167–68. Under fee-shifting statutes like § 928(a),
courts have uniformly declined to treat fee-application and
fee-litigation work differently, and have consistently held that
time spent establishing the entitlement to and amount of the
fee is compensable. See Baker Botts, 135 S. Ct. at 2167–68
(citing Comm’r, INS v. Jean, 496 U.S. 154, 158, 162 (1990));
Blixseth v. Yellowstone Mtn. Club, 854 F.3d 626, 629, 631–32
(9th Cir. 2017) (citing In re S. Cal. Sunbelt Developers, Inc.,
608 F.3d 456, 462–64 & n.4 (9th Cir. 2010)).

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VORTEX MARINE CONSTRUCTION V. GRIMM 5
Thus, the Appellate Commissioner’s order awarding
attorneys’ fees and costs for the petition for review in the
amount of $32,280 in favor of Terry Grimm and against
Vortex Marine Construction and Signal Mutual Indemnity
Association, and amending the mandate, remains in effect.
Accordingly, we hereby award attorneys’ fees for the fee
litigation in the amount of $20,060 in favor of Terry Grimm
and against Vortex Marine Construction and Signal Mutual
Indemnity Association. This order amends the court’s
mandate.

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