it please the court i'm joshua the law and appearing on behalf of mr dupree mr castro i'm sure he recognizes merely a nominal party and has no interest in the outcome mr du preez never saw and ord of the payable by mr castro or even even reimbursement of his expenses by mr castro first to answer the court's questions if i may go to the second question first no there is nothing at all in the record to show the reason for mr dupree's withdraw all he had expended nearly one hundred hours of his an associates time and more than three thousand dollars in expenses at that point it was more than five months before the scheduled hearing so there was plenty of time for mr castro to secure other counsel sho do so and mr castro was given notice both before mr dupree's motion to withdraw and of that motion and did not objects on either occasion is there any authority that suggests that there is still eligibility for attorney fees under the longshore act once you've withdrawn there is no authority under the longshore act and we have been unable to find any under any other similar fish shifting regime this be shifting regime is if not unique at least highly unusual in two respects first the attorney may collect no fees whatsoever from the client or otherwise in the absence of ultimate success and  second the there are no effective agreements with the client with respect to fees that's highly unusual and of course the statute provides explicitly unlike almost all other federal fee shifting statutes that the fees are and belong to the attorney not to the client that's figured prominently in some of the supreme court's decisions that the other fee shifting statutes are not like that the fee belongs to the client you say there's no agreement on fees between the client and the attorney is that by statute you are not allowed to have an agreement or in this case there just was no agreement no there there's there's always some kind of an agreement but it does not provide for how the amount of fees is to be determined because no such agreement can be effective and that is by statute and that's because the fees belong to the attorney not the client is that what you why you're saying that i'm not sure i understand what you're  because the statute provides in fact it's a federal crime to accept one penny or any form of recompense from the client without getting it approved through the administrative process or by the tribunal before whom the services were performed could you have an agreement that says the client can't agree to a settlement unless the attorney gets it would seem to that that might well be permissible under the statute but it also might create a conflict of interest between the attorney and the client from the outset so i don't know of anyone who has ever had such an agreement with a client u lump sum and the parties want to compromise and then it says the client mr castro shall receive a lump sum of zero well i don't think zero is a lump sum that's an awfully small lump that's no longer whatsoever it is and the cream and also makes reference to the fact that there was this four thousand dollar settlement under the state law which as i work concurrently applicable there was never any contention by the defense they denied viability but they did not ever raise any defense that this is compensable under the state law but not under the longshore act of course such a contention is possible if the coverage of the longshore act is in issue but it's not an issue that it's covered under the state how would you explain what was received at the federal statute the four thousand dollars was received in settlement of both of the concurrent overlapping fully overlapping claims it was one some to settle both claims which had the same value as one another were for the same thirty odd days of temporary total disability based on the same injury the same specific injury on the on the same job against the same employer the two months were signed were executed at the same time even though the employer did not submit the vong sure settlement for approval until five months later four months later once they had received the approval from the state authorities but it was one sum of money to settle both claims and it wasn't written that way so even if we think that it was subterfuge as you say and they intended to avoid fees under the longshore act what prohibits them from doing that well i hope a realistic assessment of what went on is the only thing to prevent them from doing that other was there is this  the representation of claimants of the longshore act in states with concurrent jurisdiction cannot proceed cannot happen it's not a viable practice and congress establish have a contract for a settlement that writes out the attorney's fees for the attorneys and so i don't understand how this is different i think what's different is that that is an attorney's a fee shifting regime in which the fees belong t client unlike this one where the fees are payable directly to the attorney but if that's true and the attorney has stopped choosing to be in the room i don't know what's supposed to happen here i mean it once the attorney i mean maybe if the attorney were in the room the attorney could say i'm a party essentially under this weird statute it's not a conflict i have a right to authorities abuse and so i have a claim in the settlement i mean i agree that's a weird thing ethically but the statute is unusual but the charge is not in the room because for whatever reason he w now where where does that leave us it leaves us with the need to record the need i would say to recognize the actual nature of what is going on which the a l j i will say absolutely did recognize when he approved of this arrangement as a section a di settlement of the longshore act claim not a denial of the claim which is what it take nothing would be this is a section eight i settlement that says this is a compromise because the claimant wants to receive a lump sum and it was on that basis that the a l j approved it to call that a take nothing is to deny the plain reality of it and once we recognize the reality of it that this four thousand dollars was to settle both of the concurrent claims at the same time which is actually you know it's explicit in parts of that settlement thousand dollars yes and this one says and the employer to this one says the claimant shall receive a lump sum of zero but it says that after saying the employer is entitle to the four thousand dollars credit for the state law settlement so it was clear to the a l j when he approved that settlement this wasn't a zero dollar settlement it was a four thousand dollars settlement of both claims at the same time despite the fact that it good morning your honour's may please the court my name is alan chang and i represent the respondents in this case homeport insurance and s s a terminals this is a case involving an attorney if you dispute where the administrative law judge and the benefits review board of the department of labor soundly held in mr dupree was simply not entitle to feel ward and the issue before your honor's is whether the benefits review boards decision contained errors of law or lacked substantial evidence in support the record in this case in particular demonstrates that the b r b should be affirmed response respectfully request that the ninth circuit uphold the b r b's decision for three primary reasons first the plain language of the parties eight i agreement substantiates to be abused decision secondly the petitioner failed to meet his burden in this case under the longshore act of demonstrating a successful prosecution and third petitioners policy arguments that he case was a take nothing agreement and how does it make sense though because aren't the claims basically equivalent in terms of if there's liability in our stay on there would have been liability under the launcher act is there any difference that would have explained why there's a payment on one and not the other there is a difference your honor i believe that would be helpful for the court's understand if i may explain under section four six sixty of the california labor code of compensation awards for permanent disability under the california system are based on a permanent disability rating schedule under the longshore act permanent disability claims are predicated upon wage loss section eight of the longs for hacked specifically requires payments to demonstrate a los capacity to be entitled to permanent disability award says he have a permanent disability i thought he had a temporary back injury that is what is being claimed on the longshore act so he does not have a permanent disability therefore however under state claims this permanent disability rating schedule almost immediately determines permanent disability awards through the type of work is that's employed the type of injury the body part you're saying even if it's a temporary injury you apply that permanent injury schedule not exactly under state law and the california labor code injured workers are entitled to permanent disability awards if they qualify under the grading schedule and in this case that happened to be the case there was a nominal value  amount that was represented by the settlement of the state claim which ended up settling for four thousand dollars this was based and represented by a permanent disability compromise on the state claim as far as the long for a claim was can cerned there was no permanent disability available because there was no loss in wage earning couple asadi the temporary total disability claim which represented thirty two days total of missed work was highly highly suspect based on the evidence that was uncovered through the discovery process at the elegy level respondent took the position at that level and for that matter that the argue level in currently that the longed for claim simply had no value the state claimed because of the labor code section four six sixteen was a different story there was a potential for a permanent disability award therefore the state case was settled separately and first for four thousand dollars and then along for a case of settled separately for a zero dollars is there something in the record that reflects this like permanent disability schedule of your explanation you just gave can we confirm that anywhere in the record the eight i agreement your honour's that would be reflected in respondents excerpts of records and the plain language does refer to a prior four thousand dollars state settlement that was exclusive to the state settlement the longshore claim which they had also confirms was limited to the zero dollars take nothing right i mean i know it says that but is there something that goes deeper and explains that there is a difference we  considering the state claim to be about this permanent disability and he had a claim under the schedule that you just talked about is there anything about that in the record unfortunately not in detail your honour's there was a compromise and release agreement which is a form statement that was submitted to the worker's comp appeal board that was approved at the state level it was essentially providing monies in exchange for a compromise and release of the state claim i don't believe that document is part of the current record before the courts however it prosecution of the longshore act which was the petitioners burden of proof in this case in richardson rhesus continental green company this court defined success or prosecution under section twenty eight of the longshore act which is where these are being claimed in this matter peach sixty three of respondents excerpts if only i think because there's nothing in the record to support the explanation you gave a moment ago that what really happened here is it was written to avoid attorney's fees is that legitimate can we enforce it  anyway the decision now i mean if you wrote i don't know if you if counsel here agreed to the settlement agreements and crafted them specifically to avoid attorney's fees payments under the longshore act is that a legitimate move to make and if we think that's what really happened here can we still enforce the decision of the agency it is legitimate under the circumstances your honor there was value to the state claim i stated there was no valid to long for a claim even despite petitions accusatory argue no but you're begging the hypo if the hypo is really there was a four thousand dollars settlement here for both claims but they wrote it to avoid paying attorney's fees is that ok is there anything in the law that prohibits them from the requirement of good calls for withdrawal of foreign title months of fees however within the ninth circuit the majority of the district courts have addressed an issue that would provide sound guidance at least from a policy perspective and that would involve the situation of attorney lean in force in contingency civil recoveries against a former clients after he or she is recovered but post withdrawal in those situations  a withdrawal is a permissive withdrawal vs a mandatory withdrawal heightened scrutiny as applied to determine whether an attorney may collect attorney's fees in quantum mero it although absent good cause for a permissive withdrawal the f bar the record in this case demonstrates that there was no mandatory grounds for mr du pree to withdraw he withdrew from a case that's responding contends had almost no value or actually no value under the longshore act he would not have been able to demonstrate his burden of a successful prosecution he would not have been able to claim fees and therefore he withdrew from the case this would be a quintessential permissive with drawl and if the court were to look to the case which district courts within the circuit have relied upon they would see that under this situation and a permissive withdraw all the substantial justification warranting the withdrawal is absent could cause it's also absent and with awkward guidance fees would not be recoverable in this situation either although you don't think we need to get there i don't believe so your honor the successful prosecution and the language of the eight i agreements and the separate settlement of the state agreement for separate value would provide essentially argumentative and speculative the concept of conquering jurisdiction was met in this case there was two separate claims mr castro settled both of those claims based on what their respective values were and his rights were considered under both tax thank you very much honors thank you counsel i'll give you a minute or reb points if i may first with respect to mr chang sparely your point there was never any claim under either statute for any permanent disability and the medical expert opinion which dupree secured it is expense provided no basis for a claim of any permanent back disability which would have been compensable under the state law even if not under the longshore act there never was any assertion of a right to permanent disability compensation which might have been available yes the standards are different under the two statutes and that that was not in the case the case was about the thirty two days or however many there were of temporary total disability under each statute without distinction second why is there no record evidence about the reasons for withdrawal because there was never any objection to the free application on any basis that had to do with the reasons for the withdraw the only that was another contention that the the application itself was untimely but the administrative law judge rejected that and the employer has never contended at any point on appeal that that was a an alternative valid grounds for denial of fees so the only thing the only objection and was this objection that it was not a successful prosecution of the claim and that was based entirely on this self contradictory term in the section eight i settlement