                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

DAVID VAN SKIKE,                            
                              Petitioner,
                    v.                              No. 07-73886
                                                     BRB Nos.
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS; CENEX                         06-0904
HARVEST STATES COOPERATIVE;                           07-0118
LIBERTY NORTHWEST INSURANCE                          OPINION
CORP.,
                     Respondents.
                                            
          On Petition for Review of an Order of the
                    Benefits Review Board

                  Argued and Submitted
            November 17, 2008—Portland, Oregon

                          Filed March 2, 2009

     Before: William A. Fletcher and Raymond C. Fisher,
      Circuit Judges, and John M. Roll,* District Judge.

                         Opinion by Judge Roll




   *The Honorable John M. Roll, United States District Judge for the Dis-
trict of Arizona, sitting by designation.

                                 2365
2368            VAN SKIKE v. DIRECTOR, OWCP




                         COUNSEL

Charles Robinowitz, Portland, Oregon; Joshua T. Gillelan II
(argued), Longshore Claimants’ National Law Center, Wash-
ington, D.C., for the petitioners-appellants.

John Dudrey, Williams Fredrickson, LLC, Portland, Oregon,
for the respondents-appellees.


                         OPINION

ROLL, Chief U.S. District Judge:

   This is an appeal from the Benefits Review Board’s
(“BRB”) affirmance of attorney’s fee awards granted by the
Administrative Law Judge (“ALJ”) and the District Director
(“DD”) in a matter arising under the Longshore and Harbor
Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-
950. After prevailing on every contested issue on a claim for
hearing loss benefits, David Van Skike’s attorney, Charles
Robinowitz, claimed compensation at a market rate of $350
per hour. The bulk of the litigation on the benefits claim had
occurred before the ALJ, but the DD resolved several issues
in the case as well. After reviewing the evidence submitted by
both parties as to what hourly rate was appropriate, and after
accounting for the applicable attorney-fee regulation, 20
C.F.R. § 702.132(a), the ALJ granted Robinowitz a rate of
                   VAN SKIKE v. DIRECTOR, OWCP                       2369
$250 per hour for his time expended litigating before the ALJ;
based upon the complexity of the issues heard before her, the
DD granted Robinowitz a rate of $235 per hour for his time
expended litigating before the DD. The BRB affirmed both
awards, finding that the ALJ and the DD properly applied
§ 702.132(a) in arriving at their respective hourly rates.

   On appeal Van Skike argues that the fee awards were arbi-
trary, capricious, and an abuse of discretion, because both the
ALJ and the DD rejected evidence proffered by Robinowitz
as to his market rate and instead relied upon past LHWCA
awards by other ALJs and DDs in arriving at their determina-
tions. Van Skike further argues that the DD erred in reducing
his market rate for lack of complexity. Finally, Van Skike
argues that the DD erred by not awarding Robinowitz an
enhanced fee for delay in payment. We have jurisdiction
under 33 U.S.C. § 921(c), and we vacate and remand in part,
and affirm in part.

FACTS AND PROCEDURAL HISTORY

Proceedings Before the ALJ

   Robinowitz argued that a market rate of $350 per hour was
appropriate given his general experience, his consultation
with a lawyer who testifies as an attorney’s fee expert, various
fee awards he and other attorneys had been granted in the
past, fee agreements he had obtained in non-contingent work,
and the Laffey1 matrix.2 Respondent Cenex objected that the
  1
     The matrix is derived from the hourly rates allowed by the district
court in Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354 (D.D.C. 1983).
   2
     More specifically, Robinowitz claimed his normal billing rate was
$350 per hour based upon the following: (1) he had been a trial lawyer in
private practice in Portland, Oregon since 1969, had represented over
1,000 maritime workers under the LHWCA, and had handled over 500
jury and court trials; (2) he consulted with William Crow, a trial attorney
who had testified numerous times as an attorney fee expert, and Crow told
2370               VAN SKIKE v. DIRECTOR, OWCP
rate was incommensurate with the relevant prevailing market
rate, and argued that recent LHWCA awards established that
a figure somewhere between $200 and $235 was appropriate.
Respondent Cenex also cited a number of contemporaneous
LHWCA cases in which Robinowitz had been awarded
between $200 and $250 per hour by ALJs and DDs.

  In his Supplemental Decision and Order Granting Attor-
ney’s Fees, issued on July 14, 2006, ALJ William Dorsey
considered and rejected each of Van Skike’s proposed
grounds for a $350 per hour rate.3 The ALJ discussed the per-

him that his hourly rate should be approximately $350 per hour in cases
of this type; (3) in March 2006 the Oregon Court of Appeals awarded him
an hourly rate of $350 per hour in a discrimination case, and in May 2006
the Ninth Circuit awarded him $300 per hour for legal services in Chris-
tensen v. Director, OWCP, Ninth Circuit No. 04-70965; (4) Seattle attor-
ney William Hochberg, an attorney with less LHWCA experience than
Robinowitz, received a $300 per hour fee award from the Ninth Circuit in
2005, and Savannah, Georgia attorney Ralph Lorberbaum, an attorney
with similar LHWCA experience to Robinowitz, received a $300 per hour
fee award for an LHWCA claim in 2003; (5) in late 2005 two clients
retained him at $275 per hour, and in spring 2006 three individual clients
retained him at $300 per hour; (6) the Board had awarded him $250 per
hour in each LHWCA case he handled since 2004; and (7) the Laffey
matrix supported an hourly rate of $400, when adjusted for Portland cost
of living figures.
   3
     With respect to the attorney fee expert relied upon by Robinowitz, the
ALJ found that the attorney’s statement was essentially hearsay which car-
ried with it no substantial guarantee of trustworthiness, and he further
found little evidence that the alleged expert opinion was based upon a
knowledge of litigating longshore claims. With respect to the $350 per
hour award granted by the Oregon Court of Appeals to Robinowitz, the
ALJ noted that Robinowitz himself admitted that the award was enhanced
for risk of loss, which the Supreme Court outlawed in City of Burlington
v. Dague, 505 U.S. 557 (1992); as to the Ninth Circuit’s $300 per hour
award in Christensen, the ALJ found that as the basis of the award was
not articulated but rather stated summarily, it did not establish a market
rate of $350 per hour for Robinowitz. With respect to Seattle attorney Wil-
liam Hochberg’s $300 per hour award, the ALJ similarly found that, as the
                   VAN SKIKE v. DIRECTOR, OWCP                        2371
tinent law regarding fee litigation, including the lodestar cal-
culation and the regulation pertaining to attorney’s fees in
longshore matters, 20 C.F.R. § 702.132(a). The ALJ con-
cluded that it would be error to award Robinowitz a $350 per
hour fee award, as he had failed to establish a “normal billing
rate” under the regulation. The ALJ concluded that the “best
proxy” for a normal billing rate was $250 per hour, based
upon what other trial judges and the BRB had granted Robi-
nowitz in recent LHWCA cases. It is not clear from the record
whether these cases had been litigated in the Portland area or
elsewhere.

  Van Skike filed a timely Motion for Reconsideration, along
with an affidavit and supporting memorandum of law,

basis of the award was not disclosed and the record was not before the
ALJ, that example did not establish a market rate of $350 per hour for
Robinowitz. The ALJ also found that Savannah attorney Ralph Lorber-
baum’s $300 per hour award did not establish a market rate for Robi-
nowitz, because the legal services were performed outside Portland, the
employer in that case, unlike Cenex, failed to prove or even suggest that
a lower rate should have been granted, and furthermore the trial judge in
that case had reduced the hours claimed by Lorberbaum, reasoning that
someone who deserved that rate ought to have completed the tasks more
expeditiously. With respect to the non-contingent fees Robinowitz claimed
he obtained from paying clients, the ALJ found that while those fee agree-
ments “are some evidence of what he can obtain for his services in the
open market,” they still failed to show “whether he billed for a significant
portion of his professional services at those rates, or just a few hours of
his time.” The ALJ concluded that the evidence proffered by Robinowitz
was “too thin” to establish that $350 per hour was his normal billing rate.
With respect to previous awards by the BRB to Robinowitz, the ALJ noted
that no agency adjudicators ever granted him fees approaching $350 per
hour, and found that awards to him up to that point clustered at “the lower
to mid $200s per hour.” Finally, with respect to the Laffey matrix, the ALJ
rejected Van Skike’s proposed method for updating it, noting that the orig-
inal data were never gathered with statistical rigor, and concluded that
even if the matrix were updated, it should properly apply only to the com-
plex federal litigation involved in Laffey, rather than the less complicated
LHWCA claim under discussion.
2372            VAN SKIKE v. DIRECTOR, OWCP
responding to the ALJ’s findings. Robinowitz quantified his
non-contingent billing, included the Morones Survey of 2004,
which showed the average fees charged by commercial litiga-
tors in Portland, and included a copy of the previously cited
Ninth Circuit’s unpublished Christensen order, awarding him
attorney’s fees of $300 per hour. In an August 10, 2006 order,
the ALJ denied the motion, once again concluding that in the
absence of “meaningful proof of what hourly clients pay Mr.
Robinowitz, or of what lawyers who are appropriate compara-
tors charge, the awards judges have made to him in compara-
ble cases” were appropriately consulted to “estimate the
‘normal billing rate’ the regulation looks to.”

Proceedings Before the DD

   Robinowitz also applied to the DD, Office of Workers’
Compensation Programs (“OWCP”), for an award which
entailed a $350 rate. Respondent Cenex once again chal-
lenged the hourly rate as inconsistent with the relevant pre-
vailing market rate. DD Karen Staats, after reviewing the
responses and objections, concluded that given the consider-
ations contemplated by § 702.132(a), “there is nothing in this
fee request that justifies a rate of $350.00 for legal services
provided in this claim at the DD level.” The DD noted that
$250 per hour was an appropriate rate for work performed
before the ALJ, but granted Robinowitz only $235 per hour,
based upon what she deemed to be a lack of complexity in the
work Robinowitz performed before her.

   Van Skike again filed a timely Motion for Reconsideration,
reiterating many of the same arguments he made before the
ALJ. The DD denied the motion on September 19, 2006, stat-
ing that the fee was approved in accord with the applicable
statutory and regulatory criteria as well as the circumstances
of the case.
                   VAN SKIKE v. DIRECTOR, OWCP                       2373
Proceedings Before the BRB

   Van Skike appealed both fee awards to the BRB. The BRB
found that the ALJ “fully addressed the evidence of hourly
rates provided by counsel to establish a customary, commu-
nity market rate, and he provided a rational basis for finding
such evidence insufficient to establish an hourly rate of
$350.” The BRB concluded that Robinowitz “failed to dem-
onstrate either legal error or an abuse of discretion” in the
ALJ’s reliance on recent fee awards to him by other judges
and the BRB in arriving at an hourly rate of $250.4 The BRB
found that the DD “independently based her award of $235
per hour on the regulatory criteria of Section 702.132(a),”
compelling the conclusion that there was no abuse of discre-
tion. Finally, the BRB found that the DD did not err in failing
to address a possible rate enhancement for delay in payment,
as “counsel did not seek an hourly rate enhanced for delay.”

STANDARD OF REVIEW

   The decision of the BRB is reviewed for substantial evi-
dence and errors of law. Marine Power & Equipment v. Dept.
of Labor, 203 F.3d 664, 667 (9th Cir. 2000). The ALJ’s find-
ings of fact must be accepted by the BRB unless they are con-
trary to law, irrational, or unsupported by substantial
evidence. Id.; see also Parks v. Newport News Shipbuilding
& Dry Dock Co., 32 BRBS 90 (1998). An appellate court
must conduct an independent review of the administrative
record to determine whether the BRB adhered to this standard
of review. Marine Power, 203 F.3d at 667. A decision by the
BRB is supported by substantial evidence if there exists “such
relevant evidence as a reasonable mind might accept as ade-
  4
    The BRB cited with approval Newport News Shipbuilding & Dry Dock
Co. v. Brown, 376 F.3d 245, 251 (4th Cir. 2004), for the proposition that
“[e]vidence of fee awards in comparable cases is generally sufficient to
establish the prevailing market rates in the relevant community.” (internal
quotation marks and citations omitted) (emphasis added).
2374            VAN SKIKE v. DIRECTOR, OWCP
quate to support a conclusion.” E.P. Paup Co. v. Dir., OWCP,
999 F.2d 1341, 1353 (9th Cir. 1993) (internal quotation marks
omitted). No special deference is accorded to the BRB’s inter-
pretation of the LHWCA, but reasonable interpretations are
respected. Port of Portland v. Dir., OWCP, 932 F.2d 836, 838
(9th Cir. 1991).

DISCUSSION

Exclusive Reliance on Contemporaneous LHWCA Cases to
Set a Market Rate

   Van Skike argues on appeal that the ALJ abused his discre-
tion and committed legal error when he rejected in their
entirety the market indicators submitted by Robinowitz and
instead relied on other decisions in previous cases, when the
judges in those previous cases failed to base their fee awards
on market rates. Respondent Cenex contends that the ruling
of the ALJ was predicated upon the applicable regulation,
§ 702.132(a), and that because Van Skike failed to establish
a “normal billing rate,” the ALJ properly relied on hourly rate
decisions in other LHWCA cases.

   [1] The Supreme Court has consistently held that reason-
able fees “are to be calculated according to the prevailing
market rates in the relevant community, regardless of whether
plaintiff is represented by private or nonprofit counsel.” Blum
v. Stenson, 465 U.S. 886, 895 (1984). The burden is on the fee
applicant himself “to produce satisfactory evidence” of the
relevant market rate. Id. at 896 n.11. Case law construing rea-
sonable fees “applies uniformly” to fee-shifting statutes such
as the LHWCA, City of Burlington v. Dague, 505 U.S. 557,
562 (1992), and, as with other federal fee-shifting statutes, the
use of the lodestar method (number of hours reasonably
expended multiplied by reasonable hourly rate) in calculating
attorney’s fees under the LHWCA is proper. See Tahara v.
Matson Terminals, Inc., 511 F.3d 950, 955 (9th Cir. 2007).
                VAN SKIKE v. DIRECTOR, OWCP               2375
   [2] The relevant community is generally defined as “the
forum in which the district court sits.” Barjon v. Dalton, 132
F.3d 496, 500 (9th Cir. 1997). In Christensen v. Price, Ninth
Circuit No. 07-70297, filed today, we note the problems
inherent in narrowly defining the relevant community in
LHWCA cases strictly in terms of what other ALJs, DDs, and
the BRB have awarded fee claimants in contemporaneous
cases. In doing so we reject the Fourth Circuit’s overly cir-
cumscribed definition of “relevant community” advanced in
Brown, relied upon by the BRB in the instant case in affirm-
ing the awards granted by the ALJ and the DD. First, exclu-
sive reliance on contemporaneous LHWCA cases does not
constitute an appropriate determination of a market rate as
contemplated by relevant case law. In Moreno v. City of Sac-
ramento, 534 F.3d 1106, 1115 (9th Cir. 2008), this court
recently found unreasonable a district court’s award of attor-
ney’s fees pursuant to 42 U.S.C. § 1988, because the district
court had applied “what appear[ed] to be a de facto policy of
awarding a rate of $250 an hour to civil rights cases.” Such
a policy ignores current market conditions while deferring to
historical market rates, which is clearly not contemplated by
Blum. Exclusive reliance on contemporaneous LHWCA cases
also overlooks the fact that LHWCA attorneys are forbidden
by law from, and face criminal penalties for, negotiating or
entering into private fee agreements with their clients. See 33
U.S.C. § 928(e). The lack of a private LHWCA market does
not absolve courts of the duty to arrive at a market rate. As
we note today in Christensen, the relevant community must
necessarily be defined more broadly than the LHWCA bar.
Finally, exclusive reliance on contemporaneous LHWCA
cases is contrary to the rationale behind fee-shifting statutes
in general. In Camacho v. Bridgeport Financial, Inc., in
which an attorney’s fee award in a Fair Debt Collection Prac-
tices Act (“FDCPA”) case was vacated because the district
court failed to make findings regarding what constituted the
relevant community or an appropriate market rate, we reiter-
ated that “[i]n order to encourage able counsel to undertake
FDCPA cases, as congress intended, it is necessary that coun-
2376             VAN SKIKE v. DIRECTOR, OWCP
sel be awarded fees commensurate with those which they
could obtain by taking other types of cases.” 523 F.3d 973,
981 (9th Cir. 2008) (internal quotation marks omitted and
alteration in original). Arbitrarily holding the line at past
court-generated fee awards does not respect the congressional
intent animating fee-shifting statutes. See Student Pub. Inter-
est Research Group of N.J. v. AT&T Bell Labs., 842 F.2d
1436, 1446 (3d Cir. 1988) (“Courts that try to establish public
interest market rates by looking to the going rate for public
interest work therefore do not examine an independently oper-
ating market governed by supply and demand, but rather
recast fee awards made by previous courts into ‘market’ rates
. . . [thereby] . . . perpetuat[ing] a court-established rate as a
‘market’ when that rate in fact bears no necessary relationship
to the underlying purpose of relying on the marketplace: to
calculate a reasonable fee sufficient to attract competent coun-
sel.”).

   [3] As stated in Christensen, the same concerns expressed
in Camacho and Moreno as to other fee-shifting cases apply
with equal force to LHWCA cases. It is true that the remand
for the fee determinations in Christensen occurred largely
because the BRB did not adequately justify its awards. The
instant case is distinguishable from Christensen in that both
the ALJ and the DD here provided, for the most part, detailed
analyses of the evidence proffered by Van Skike to establish
a prevailing market rate. The exclusive reliance by the ALJ
and the DD on contemporaneous LHWCA cases remains
problematic, however, given the guidance of Camacho,
Moreno, and now Christensen. The relevant community must
be defined “more broadly than simply fee awards under the
LHWCA.” Christensen, Ninth Circuit No. 07-70297 at 9.
Finally, Christensen states that the failure of a fee applicant
to carry his burden under Blum as to the establishment of a
relevant market may justify courts in looking to what other
ALJs and the BRB have awarded a fee applicant in contempo-
raneous LHWCA cases, but it also states that if the reasons
given by a court for such a failure “would not have been
                 VAN SKIKE v. DIRECTOR, OWCP                  2377
anticipated by a reasonable fee applicant,” “it may be appro-
priate . . . to allow an applicant to cure its failure to carry the
burden.” Id. at 10.

   [4] Under the circumstances presented by this case, particu-
larly considering the detailed justification proffered by Van
Skike to establish a relevant market rate, it is appropriate to
vacate the fee awards arrived at by the ALJ and the DD and
to remand the case for reconsideration of Van Skike’s pro-
posed rate in light of the guidance provided by Christensen
and this opinion. The ALJ and the DD may then decide
whether it is proper to award a different fee or to allow Van
Skike to modify his fee request in an attempt to cure what
they originally deemed a failure to establish a market rate.

Reduction of Hourly Rate Based Upon Complexity of Task

   Van Skike argues on appeal that the DD committed legal
error when she awarded a lower hourly rate than the ALJ due
to what she deemed to be a lack of complexity of the issues
heard before her. He argues that such a practice is inconsistent
with all other fee-shifting regimes Congress has authorized
and further contends that Blum forbids the DD from consider-
ing the complexity of the legal issues involved in computing
an hourly rate, as opposed to considering that factor in com-
puting the number of hours allowed. Respondent Cenex con-
tends that the DD properly applied § 702.132(a) and that the
BRB properly affirmed her fee determination.

   [5] Attorney’s fee awards under the LHWCA are to be
“reasonably commensurate with the necessary work done and
shall take into account the quality of the representation, the
complexity of the legal issues involved, and the amount of
benefits awarded.” 20 C.F.R. § 702.132(a). While the regula-
tion does not expressly mandate the use of the traditional
lodestar method, it does permit the consideration of lodestar
factors not explicitly listed, and it also sets forth at least four
of the eleven factors to be considered. See Van Gerwen v.
2378                VAN SKIKE v. DIRECTOR, OWCP
Guarantee Mutual Life Co., 214 F.3d 1041, 1045 n.2 (9th Cir.
2000) (listing the lodestar factors). The Supreme Court has
stated that the lodestar is the “guiding light” of its fee-shifting
jurisprudence, a standard that is the fundamental starting point
in determining a reasonable attorney’s fee. Dague, 505 U.S.
at 562. Moreover, in the instant case the DD used the lodestar
method in calculating the fee award. In doing so, however,
she deviated from the admonition that the reasonable hourly
rate is generally determined based upon the prevailing rate in
the relevant community, rather than upon the complexity of
the issues, which should be reflected in the reasonable number
of hours. See Blum, 465 U.S. at 895. Here, as in Blum, the
“novelty and complexity of the issues presumably were fully
reflected in the number of billable hours recorded by coun-
sel.” Id. at 898. Therefore, “[n]either complexity nor novelty
of the issues . . . is an appropriate factor in determining
whether to [decrease] the basic fee award.” Id. at 898-99.5

   [6] A formulaic recitation of the regulations pertaining to
LHWCA fee awards is insufficient to absolve the DD from
compliance with relevant case law outlining the lodestar
methodology. Reducing an hourly rate based upon a lack of
complexity and the routine nature of the work is inconsistent
with other fee-shifting regimes Congress has adopted or the
Supreme Court has approved. 20 C.F.R. § 702.132 does not
specifically require that the reasonable rate determination turn
upon the complexity of the issues, so it was incumbent upon
the DD to consistently apply the prevailing lodestar methodol-
ogy, which accounts for complexity in the hours and not in
the rate computation. It is appropriate, therefore, to vacate the
DD’s determination to reduce the fee award based upon lack
of complexity and to remand to her so that she can recalculate
the award in light of the foregoing guidance.
   5
     It would be illogical and burdensome under any fee-shifting statute, for
instance, to attempt to distinguish between an attorney’s hourly rate for a
15-minute phone call with the clerk’s office concerning a technical proce-
dural issue and a 15-minute phone call with a client providing expert sub-
stantive advice based on how the procedural issue was resolved.
                VAN SKIKE v. DIRECTOR, OWCP                2379
Delay Enhancement

   Van Skike argues on appeal that the DD committed legal
error when she failed to enhance the fee award to Robinowitz
for delay in payment. Respondent Cenex contends that since
Van Skike did not raise this issue before the DD, it is not
reviewable by the panel.

   [7] A review of the administrative record reveals that Van
Skike never raised the delay enhancement argument either in
his initial application for fees to the DD or in his motion for
reconsideration. He did eventually brief the issue to the BRB,
but the BRB declined to consider it because it found he raised
it for the first time on appeal. Van Skike contends in his
Reply Brief that his mere request for a $350 per hour current
market rate was sufficient not only to raise the delay issue but
to preserve it on appeal. It is clear from the fee affidavit and
from the orders drafted by both the ALJ and the DD that the
common issue under consideration was not delay but whether
Robinowitz’s $350 per hour request represented his normal
billing rate or the current prevailing market rate. Because Van
Skike never effectively raised the prospect of delay, the BRB
was not required to reach the issue. See Johnson v. Dir.,
OWCP, 183 F.3d 1169, 1171 (9th Cir. 1999) (holding in
LHWCA case that, unless necessary to prevent manifest
injustice, Ninth Circuit will not review issue not raised
below); Smiley v. Dir., OWCP, 984 F.2d 278, 281 (9th Cir.
1992) (stating that Ninth Circuit will reach an issue of law of
which the ALJ and the BRB were aware and which BRB
promised to consider; reaffirming that the standard for
whether issue was properly raised below is that argument
must be sufficient for trial court to rule on it); Perkins v.
Marine Terminals Corp., 673 F.2d 1097, 1100 (9th Cir. 1982)
(holding that BRB lacked authority to raise LHWCA cover-
age issue sua sponte when issue was not previously raised
before ALJ). The BRB’s decision was therefore proper, given
the factual circumstances and the applicable law.
2380          VAN SKIKE v. DIRECTOR, OWCP
  AFFIRMED IN PART, VACATED AND REMANDED
IN PART. Each party shall bear its own costs on appeal.
