Rogers v. Director, Office of Workers' Compensation Programs
Docket: No. 04-73572
Court: Court of Appeals for the Ninth Circuit; August 10, 2006; Federal Appellate Court
Attorney Jay Friedheim petitioned for review of a final order from the Benefits Review Board (the “Board”), which denied his request for attorney’s fees under the Longshore and Harbor Workers’ Compensation Act. The court has jurisdiction under 33 U.S.C. 921(c) and denied the petition. The case involves longshoreman Rogers, who sustained injuries in January 2000 and received temporary disability benefits from his employer, Hawaii Stevedores, totaling $52,724.08 until March 2001. After seeking additional benefits, which were contested by his employer, Rogers settled for $8,000 without counsel. Upon hiring Friedheim, who contested the settlement's adequacy, an administrative law judge (ALJ) approved the settlement but later the Board vacated this approval, ruling that Rogers had rescinded the agreement before it was finalized. Friedheim sought attorney’s fees from the Board, which denied the request, stating that although Rogers annulled the settlement, the extent of his success was not yet clear. The case was remanded for further proceedings, and a second ALJ found no additional benefits were due to Rogers. Friedheim again sought fees, which the Board denied, reasoning that Rogers did not secure additional benefits. Friedheim's timely appeal was noted, and the court reviews the Board's decision for legal error and substantial evidence, noting that the Board’s interpretations of the Longshore Act are not subject to deference as it is not a policymaking agency. Attorney’s fees may be awarded under 33 U.S.C. 928 when an attorney successfully prosecutes a claim after the employer contests liability.
A party must achieve actual relief that materially changes the legal relationship between parties to qualify for fee-shifting under statutes. In evaluating Friedheim's representation of Rogers against the Hawaii Stevedores, it was determined that, despite successfully annulling a settlement agreement, Friedheim did not pursue any claims that would expose the employer to liability under the Longshore Act. An administrative law judge (ALJ) found that Rogers was not entitled to additional indemnity or medical benefits, a decision that was not appealed. Although Friedheim could potentially recover fees if Rogers later obtains benefits, such recovery is uncertain. Therefore, without actual relief in this case, the petition for review is denied. Additionally, inquiries about biweekly long-term disability payments revealed that these benefits were established prior to the current litigation and were unrelated to Friedheim's actions. This decision is not for publication and cannot be cited in court, as per 9th Cir. R. 36-3.
