facts of this case. Compare Anderson v. Dir., Office of Workers Comp. Programs,

91 F.3d 1322, 1325 (9th Cir. 1996) (finding the BRB abused its discretion in

failing to award a delay enhancement where there was a 10 year delay between the

time services were rendered and the time a fee was awarded) with Christensen v.

Stevedoring Servs. of Am., 557 F.3d 1049, 1056 (9th Cir. 2009) (finding that the

BRB didn't abuse its discretion by concluding that a 2 year delay wasn't long

enough for enhancement). The delay here — 8 years — was longer than the one in

Christensen, but shorter than the one in Anderson. Petitioner’s counsel was not

automatically entitled to a delay enhancement at his current hourly rate under this

circuit’s precedents.

Second, as Christensen illustrates, the BRB isn’t obligated to compensate for

every trivial difference between the time services were rendered and the time

compensation was received. See also In re Washington Pub. Power Supply Sys.

Sec. Litig., 19 F.3d 1291, 1305 n.14 (9th Cir. 1994) (noting that the difference

between the court's award and an award based on current rates was "significant").

The purpose of awarding a delay enhancement is to compensate for the lost value of money. Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d

414, 425 (3d Cir. 1993). The paltry additional amount that petitioner’s counsel is

seeking here – a total of $294.03 – doesn’t implicate time value of money

concerns.

Third, we owe the BRB some deference and should only reverse if there is

an abuse of discretion. Christensen, 557 F.3d at 1052 (BRB’s decisions reviewed

for abuse of discretion); Todd Shipyards v. Director, Office of Workers'

Compensation Programs ("OWCP"), 792 F.2d 1489, 1491 (9th Cir. 1986) (court

must respect BRB’s interpretation of the statute when it is reasonable and reflects

the policy underlying the statute). There was none here. The BRB approved a

hybrid delay enhancement that fit the facts of this case. The award recognized

that counsel had worked on the case sporadically over a number of years and

divided the litigation into two phases – early and late. He was paid his current

rate for the late phase. This approach was fair, see N.Y. State Ass'n for Retarded

Children, Inc. v. Carey, 711 F.2d 1136, 1153 (2nd Cir. 1983) (even in protracted

cases, it is acceptable to divide the litigation into phases and use different rates for

the early phase and the later phase), and it lessened the risk of overcompensating

counsel for the time he spent early on. See Ohio-Sealy Mattress Mfg. Co. v. Sealy

Inc., 776 F.2d 646, 663 (7th Cir. 1985) (using current hourly rates in protracted

-2- cases may produce a windfall since changes in hourly rates reflect not only

inflation but also an attorney's increased experience and skill).

For all three reasons, I respectfully dissent.

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