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
2 VORTEX MARINE CONSTRUCTION V. GRIMM

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.
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
4 VORTEX MARINE CONSTRUCTION V. GRIMM

$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)).
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.