                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                              FILED
                             FOR THE NINTH CIRCUIT
                                                                              DEC 07 2009
JOHN E. MANCINI, to the use of                   No. 08-72537             MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
JOSHUA T. GILLELAN II,
                                                 B.R.B. No. 07-0187
              Petitioner,
                                                 MEMORANDUM *
  v.

DAN P. PLUTE, INC., doing business as
PROCUREMENT SERVICES
ASSOCIATES, and DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR

              Respondents.


                      On Petition for Review of an Order of the
                               Benefits Review Board

                            Submitted November 6, 2009**
                              San Francisco, California



       *
             This disposition is not appropriate for publication and is not precedent
       except as provided by 9th Cir. R. 36-3.
       **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).


                                         -1-
Before: NOONAN and W. FLETCHER, Circuit Judges, and DUFFY, *** District
Judge.

      John E. Mancini, solely for the benefit of his attorney, Joshua T. Gillelan II,

petitions for review of an order of the Benefits Review Board (the “Board”),

which, pursuant to § 28(a) of the Longshore and Harbor Workers’ Compensation

Act (“LHWCA”), 33 U.S.C. § 928(a), awarded attorney’s fees to Gillelan against

Dan P. Plute, Inc. (“Plute”) for the successful representation of Mancini at an

hourly rate of $250.00. Gillelan contends that the requested rate of $435.00 per

hour is a reasonable market rate for comparable services by attorneys of

comparable experience and expertise in Washington, D.C., the city where Gillelan

practices and where the Board is located. It is our decision that the order must be

vacated and the matter remanded.

      We review the Board’s decision for substantial evidence and errors of law.

Van Skike v. Dir., OWCP, 557 F.3d 1041, 1045 (9th Cir. 2009). Because the Board

is not a policymaking agency, no special deference is accorded to its interpretation

of the LHWCA. Id.; McDonald v. Dir., OWCP, 897 F.2d 1510, 1512 (9th Cir.

1990).




      ***
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.

                                         -2-
      Counsel for the prevailing party is to be awarded “reasonable [attorney’s]

fees” as typically “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) (involving claims

under 42 U.S.C. § 1988); see Van Skike, 557 F.3d at 1046. In this circuit, the

“relevant legal community” is the litigation forum. See Christensen v. Stevedoring

Servs. of Am., 557 F.3d 1049, 1053 (9th Cir. 2009). Here, Gillelan represented

Mancini before the Board in Washington, D.C. Gillelan’s law office is also located

in Washington, D.C. See 20 C.F.R. § 802.203(d)(4) (“The rate awarded by the

Board shall be based on what is reasonable and customary in the area where the

services were rendered for a person of that particular professional status.”)

      Nevertheless, strict application of the “forum rule” may sometimes yield

unreasonable results, so “rates outside the forum may be used if local counsel was

unavailable, either because they are unwilling or unable to perform because they

lack the degree of experience, expertise, or specialization required to handle

properly the case.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir.

2008). Therefore, if the Board determines the forum to be in a location other than

Washington, D.C., the Board should consider whether it was necessary for Mancini




                                         -3-
to resort to the national market, including Washington, D.C., to find adequate

representation for Plute’s original appeal.

      In defining “relevant community” when reviewing Gillelan’s fee application,

the Board looked solely at other awards issued by ALJs, Directors, and the Board

in prior LHWCA decisions. This narrow definition of “relevant community” is

inappropriate, because there is no private market for attorney’s fees under the

LHWCA, as LHWCA attorneys cannot negotiate or enter into fee agreements with

their clients. See 33 U.S.C. § 928(e); Christensen, 557 F.3d at 1053. Therefore, it

is necessary to define the “relevant community” more broadly than only the

LHWCA bar.

      In addition to the exclusive reliance on past LHWCA cases to define

“relevant community,” Gillelan contends that the Board erred by defining the

market rate solely in terms of what ALJs, Directors, and the Board awarded fee

applicants in prior cases. In the Ninth Circuit, an award of attorney’s fees based

solely on past fee awards is considered unreasonable, because “holding the line” at

a flat rate does not define the relevant “market rate.” See Christensen, 557 F.3d at

1053; Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008); see also

Student Pub. Interest Research Group of N.J. v. AT&T Bell Labs., 842 F.2d 1436,

1446 (3d Cir. 1988).


                                          -4-
      In determining the market rate for a prevailing attorney, one must look to

what private attorneys of comparable ability and reputation charge their paying

clients for work of similar complexity. See Blum, 465 U.S. at 895 & n.11. Once

the prevailing attorney offers evidence of a market rate, there is a presumption of

reasonableness, and the court may not reduce that rate without explaining the basis

for its decision. See Christensen, 557 F.3d at 1054-55.

      Here, Gillelan introduced sufficient evidence, by reference to the Laffey

matrix, to demonstrate that the requested hourly rate of $435 was reasonable in

Washington, D.C. for attorneys at the highest experience level (i.e., more than

nineteen years). The Board approved an hourly rate of $250 only by considering

prior awards but failed to provide support for its findings. See Christensen, 557

F.3d at 1055. The Board wrongly disregarded the evidence submitted by Gillelan

and made no attempt to determine what comparable attorneys in Washington, D.C.

charged for similar services.

      Regarding fee liability, the Board held in its order on the merits that Plute

“was wholly absolved of liability” and “no longer ‘adversely affected or aggrieved’

by the [ALJ]’s initial decision” regarding the underlying compensation award. For

this reason, Plute did not initially rebut Gillelan’s request for attorney’s fees at an

hourly rate of $435. Yet the “employer” Plute was ordered to pay the fee. Plute


                                           -5-
should have filed a cross-appeal to properly bring this issue before us, rather than

raise the issue solely in its opposition papers, as Plute cannot seek redress on

Gillelan’s appeal. See FED. R. APP. P. 3(a). We suggest the Board read its decision

addressing the merits of the compensation claim before ordering that attorney’s

fees be paid directly by “employer” Plute. This panel cannot address the issue of

whether Plute or Perini has the ultimate fee liability, but this is an issue that the

Board may want to consider on remand.

VACATED and REMANDED to the Board for further consideration in accordance

with this opinion.




                                           -6-
