Warren K. Iopa v. SALTCHUK-YOUNG BROTHERS , LIMITED, Employer

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
W ARREN K. IOPA, Claimant,
Petitioner,
v.
S ALTCHUK-Y OUNG BROTHERS ,
LIMITED, Employer; S IGNAL
M UTUAL INDEMNITY A SSOCIATION,
LTD ., Carrier; D IRECTOR , O FFICE OF
W ORKERS ’ C OMPENSATION
P ROGRAM,
Respondents.
No. 17-70415
BRB No.
16-0232
OPINION
On Petition for Review of an Order of the
Benefits Review Board
Submitted February 15, 2019*
Honolulu, Hawaii
Filed March 4, 2019
Before: Richard C. Tallman, Jay S. Bybee,
and N. Randy Smith, Circuit Judges.
Per Curiam Opinion
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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2 IOPA V. S ALTCHUK-YOUNG BROTHERS
SUMMARY**
Longshore Act / Attorneys’ Fees
The panel affirmed a decision by the Benefits Review
Board upholding an administrative law judge’s decision
striking, as untimely, a petition for payment of a claimant’s
attorneys’ fees under the Longshore and Harbor Workers’
Compensation Act.
Following claimant’s successful litigation of claims for
temporary disability benefits under the Longshore Act, the
ALJ held that he was entitled to reasonable fees and costs.
Claimant’s counsel filed a fee petition for work done before
the Office of Workers’ Compensation Programs, and
subsequently filed a corrected petition with the Office of
ALJs. The ALJ struck the first petition as improperly filed
and dismissed the second petition as untimely.
The panel held that the ALJ properly used the excusable
neglect standard in evaluating the circumstances for the
untimely fee petition. The panel also held that the ALJ
properly applied the four-factor test in Pioneer Investment
Services Co. v. Brunswick Associates Ltd. Partnership, 507
U.S. 378 (1993), in finding that there was no excusable
neglect.
** 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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IOPA V. S ALTCHUK-YOUNG BROTHERS 3
COUNSEL
Jay L. Friedheim, Honolulu, Hawaii; Lara D. Merrigan,
Merrigan Legal, San Rafael, California; for Petitioner.
Normand R. Lezy, Cox Wooton Lerner Griffin & Hansen
LLP, for Respondents Young Brothers Limited and Signal
Mutual Indemnity Association Ltd.
Kathleen H. Kim, Office of the Solicitor, United States
Department of Labor, Washington, D.C., for Respondent
Director, Office of Workers’ Compensation Program.
OPINION
PER CURIAM:
Petitioner Warren Iopa appeals the United States
Department of Labor’s Benefits Review Board’s (“BRB”)
order affirming an Administrative Law Judge’s (“ALJ”)
decision striking as untimely a petition for payment of his
attorney’s fees under the Longshore and Harbor Workers’
Compensation Act (“Longshore Act”), 33 U.S.C. §§ 901–
50, filed more than nine months past the ALJ-ordered
deadline. We now consider for the first time in our circuit
whether striking an untimely petition for attorney’s fees
under the Longshore Act is proper only given extreme
circumstances, or whether excusable neglect is the proper
standard by which to evaluate such petitions. We hold that
the excusable neglect analysis is proper and affirm the
BRB’s decision to uphold the ALJ’s dismissal order.

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4 IOPA V. S ALTCHUK-YOUNG BROTHERS
I
Following Iopa’s successful litigation of claims for
temporary disability benefits under the Longshore Act, the
ALJ held that he was entitled to reasonable attorney’s fees
and costs, and that a fee petition had to be filed within
21 days of the award order entered July 31, 2014. See
20 C.F.R. § 702.132(a). On June 8, 2015, Iopa’s counsel
instead improperly filed a fee petition for work done before
the Office of Workers’ Compensation Programs (“OWCP”).
At the request of the ALJ’s office, counsel filed a corrected
petition with the Office of Administrative Law Judges
(“OALJ”) on October 27, 2015. The ALJ then issued an
order striking the first petition due to his lack of authority to
award attorney’s fees for work done before the OWCP, and
striking the second petition based on a finding of
untimeliness without excusable neglect.
II
We have jurisdiction under 33 U.S.C. § 921(c). We
review BRB decisions under the Longshore Act “for errors
of law and for adherence to the substantial evidence
standard.” Gen. Const. Co. v. Castro, 401 F.3d 963, 965 (9th
Cir. 2005) (quoting Alcala v. Dir., OWCP, 141 F.3d 942, 944
(9th Cir. 1998)). We conduct de novo review on questions
of law, including questions of statutory interpretation, under
the Longshore Act. See Pedroza v. BRB, 624 F.3d 926, 930
(9th Cir. 2010). “Because the [BRB] is not a policymaking
entity, we accord no special deference to its interpretation of
the Longshore Act.” Price v. Stevedoring Servs. of Am., Inc.,
697 F.3d 820, 825 (9th Cir. 2012).

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IOPA V. S ALTCHUK-YOUNG BROTHERS 5
III
Iopa’s counsel argues that the ALJ did not apply the
proper standard in evaluating the circumstances for the
untimely fee petition and, alternatively, even if the proper
standard was applied, substantial evidence does not support
the ALJ’s decision to strike fees.
A
Iopa asserts that Longshore Act fee petitions are subject
to the relatively lenient standard adopted by the BRB in
1986: “The loss of an attorney’s fee is a harsh result and
should not be imposed on counsel as a penalty except in the
most extreme circumstances.” Paynter v. Dir., OWCP,
9 Black Lung Rep. (Juris) 1-190, at *1 (Ben. Rev. Bd. 1986).
In 2015, however, the Rules of Practice and Procedure for
Administrative Hearings Before the OALJ were revised to
include, inter alia, the following provision: “When an act
may or must be done within a specified time, the judge may,
for good cause, extend the time . . . [o]n motion made after
the time has expired if the party failed to act because of
excusable neglect.” 29 C.F.R. § 18.32(b)(2) (emphasis
added). This rule applies to claims brought before an ALJ
in the Department of Labor, including Longshore Act
claims. See id. § 18.10(a). While Paynter may have
previously served as the primary guide in determining
whether to strike a fee petition, the 2015 revision of the
Rules of Practice and Procedure for Hearings Before the
OALJ requiring a showing of “excusable neglect” for
untimely claims cannot be ignored. See id. § 18.32(b)(2).
In determining whether circumstances constitute
excusable neglect, the Supreme Court set forth the following
four-factor test in Pioneer Investment Services Co. v.
Brunswick Associates Ltd. Partnership: “the danger of

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6 IOPA V. S ALTCHUK-YOUNG BROTHERS
prejudice to the debtor, the length of the delay and its
potential impact on judicial proceedings, the reason for the
delay, including whether it was within the reasonable control
of the movant, and whether the movant acted in good faith.”
507 U.S. 380, 395 (1993). We and our sister circuits have
adopted the Supreme Court’s four-factor test. See Pincay v.
Andrews, 389 F.3d 853, 855–60 (9th Cir. 2004) (weighing
Pioneer factors in untimely filing of notice of appeal under
Federal Rule of Appellate Procedure 4(a)(1)(A)); Briones v.
Riviera Hotel & Casino, 116 F.3d 379, 381–82 (9th Cir.
1997) (adopting the Pioneer test in evaluating motions for
relief under Federal Rule of Civil Procedure 60(b)(1)); In re
O’Brien Envtl. Energy, Inc., 188 F.3d 116, 125 n.7 (3d Cir.
1999) (recognizing Pioneer as providing “guidance not just
with regard to [bankruptcy] Rule 9006, but in other . . . non-
bankruptcy contexts discussing the issue of excusable
neglect”); Pratt v. Philbrook, 109 F.3d 18, 19 (1st Cir. 1997)
(explaining that “the Pioneer test for ‘excusable neglect’ was
intended to extend beyond the bankruptcy context”). We
hold that applying the Pioneer factors to the instant case is
appropriate and consistent with post-Pioneer case law
analyzing “excusable neglect” in various regulatory
contexts. The ALJ did not, therefore, commit an error of law
by applying an improper standard.
B
The ALJ’s four-factor Pioneer analysis and subsequent
conclusion that Iopa’s counsel did not establish excusable
neglect was supported by substantial evidence. The ALJ
found that the first factor—prejudice—weighed against a
finding of excusable neglect. The ALJ determined that
Respondents demonstrated they would be prejudiced by the
delayed filing, because their “memory of the details of the
case” and ability “to recall each back and forth between the

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IOPA V. S ALTCHUK-YOUNG BROTHERS 7
parties for the purpose of contesting the validity or amount
of time claimed for a given line item” was affected by the
substantial delay. A reasonable factfinder would not be
compelled to disagree with this analysis and finding.
The ALJ found that the second factor—the length of
delay—weighed strongly against a finding of excusable
neglect, because the delay was substantial. That finding is
supported by the fact that the petition was filed
approximately 280 days past the established deadline of 21
days. The fact that Iopa’s lawyer waited another month to
correct his petition after being instructed by the ALJ to file
the proper petition with the OALJ instead of the OWCP
further supports this finding.
The ALJ also found that the third factor—the reasons for
delay—weighed against a finding of excusable neglect. The
ALJ’s determination that “none of [the reasons for delay] are
convincing or persuasive” or were beyond the control of
counsel is supported by case law. Although Iopa’s counsel
noted several challenges in managing his caseload,
particularly following the departure of the associate who
managed this case, the Supreme Court has held that “we give
little weight to the fact that counsel was experiencing
upheaval in his law practice.” Pioneer, 507 U.S. at 398; see
also In re Enron Corp., 419 F.3d 115, 126–27 (2d Cir. 2005)
(holding a party being too busy with negotiations was not
excusable neglect); In re Harlow Fay, Inc., 993 F.2d 1351,
1352 (8th Cir. 1993) (holding counsel’s relocation to a
different state and reduction in staff was not excusable
neglect); cf. Selph v. Council of L.A., 593 F.2d 881, 884 (9th
Cir. 1979) (explaining that “excusable neglect is not meant
to cover the usual excuse that the lawyer is too busy, which
can be used, perhaps truthfully, in almost every case”)
(citation omitted).

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8 IOPA V. S ALTCHUK-YOUNG BROTHERS
The ALJ found that the fourth factor—good faith—had
no weight in this case. Even if the ALJ had found that
counsel acted in good faith, that factor does not require a
finding of excusable neglect when weighed against the other
three factors. See In re Veritas Software Corp. Sec. Litig.,
496 F.3d 962, 973 (9th Cir. 2007) (affirming the district
court’s denial of a fee application as untimely where two
factors favored a finding of excusable neglect, stating that an
excusable neglect determination is “committed to the
discretion of the district court” and “[w]hile the district court
would not have abused its discretion in granting [the] fee
application, it did not abuse its discretion in denying it”).
We affirm the BRB’s decision upholding the ALJ’s finding
of untimeliness absent excusable neglect.
AFFIRMED.

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