9th Circuit Reverses BRB Award of Attorney’s Fees

Nat'l Steel & Shipbuilding Co. v. Dir., Off. of Worker's Comp. Programs, No. 23-2865, 2025 WL 2803543 (9th Cir. Oct. 2, 2025).

National Steel and Shipbuilding Company (NASSCO) appealed the decision of the Benefits Review Board (BRB) affirming an award of $145,499.07 to the employee’s attorney under the fee shifting provision of the Longshore Act, 33 U.S.C. § 928(a) and (b).[1] The Ninth Circuit panel reversed the BRB and remanded the case.

The case stems from two claims for knee injuries sustained by the employee in 2009 and 2013. The employer paid compensation for the knee injuries sustained in 2009 and paid $56,721.60 for permanent partial disability under 33 U.S.C. § 907(a). He filed a new claim in 2015 alleging new injuries to both knees in 2013.[2] The ALJ denied the claim for the 2013 injury, which was affirmed by the BRB.[3] However, the BRB also remanded the case for the ALJ to determine if the claim was construed as a modification of the 2009 claim.[4]

The employer and employee ultimately entered into an in-globo settlement of $50,000 plus future medical expenses. Thereafter, counsel for the employee sought attorney’s fees and costs under 33 U.S.C. § 928 for both injuries and appeal.[5] The employer contested the fee, claiming that the 2013 injury failed and the modification was only partially successful. The BRB affirmed the award of fees.

The divided panel reversed the BRB and remanded the matter, stating that the “BRB erroneously awarded attorney's fees for both claims without determining which efforts of counsel were actually ‘expended in pursuit of the ultimate [successful] result.’” The BRB must determine which of the claims were successful, whether 33 U.S.C. § 928(a), (b), and whether fees should be reduced for limited success on the 2013 claim.

A copy of the opinion is attached.

[1] Sec. 928(a) allows recovery of reasonable attorney’s fees if the employer declines to pay compensation. Sec. 928(b) allows recovery of attorney’s fees if the employee recovers more than the employer offered to pay and based on the difference between what was offered and the amount awarded.

[2] 2025 WL 2803543 at *1.

[3] Id.

[4] Id.

[5] Id. He sought $114,041.07 for work before the ALJ, and $31,458 for work on appeal.